Habbal & Jamar
[2021] FCCA 486
•17 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Habbal & Jamar [2021] FCCA 486
File number(s): PAC 4434 of 2018 Judgment of: JUDGE OBRADOVIC Date of judgment: 17 March 2021 Catchwords: FAMILY LAW – application - contravention – whether the mother used her best endeavours to facilitate telephone communications between the children and their father – whether the mother discussed family court proceedings and marital issues with the children – contravention not made out – application dismissed. Legislation: Evidence Act 1995 (Cth), s 140
Family Law Act 1975 (Cth), Pt VII Div 13A, ss 70NAA, 70NAF, 70NAC
Cases cited: Fauna Holdings & Mitchell [2000] FamCA 313
Hay & Hay [1998] FamCA 95
Lindsey & Lindsey [1995] FamCA 117
Nieuwstraten & Nieuwstraten [1987] FamCA 11
Reilly & Reilly [1995] FamCA 152
Number of paragraphs: 40 Date of hearing: 11 March 2021 Place: Heard in Parramatta, Delivered in Dubbo Counsel for the Applicant: Mr Maddox Solicitor for the Applicant: Mark Brown & Associates Appearing for the Respondent: Ms Barfoot Solicitor for the Respondent: Coleman Greig Lawyers ORDERS
PAC 4434 of 2018 BETWEEN: MR HABBAL
Applicant
AND: MS JAMAR
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
17 MARCH 2021
THE COURT ORDERS THAT:
1.The Application – Contravention filed 23 November 2020 is dismissed.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Habbal & Jamar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC
On 13 May 2020, the Court made final parenting orders in respect of the parties’ two children, X born in 2012 and Y born in 2014.
On 8 September 2020, just under 5 months after the making of final orders, the father filed an Application-Contravention alleging 50 breaches of order 10(a), a continuing breach of order 10(c), and 5 breaches of order 15 of the orders made on 13 May 2020.
In essence, the father alleges that the mother:
(a)did not use her best endeavours to facilitate the children communicating with the father;
(b)failed to provide to the father the children’s “iTunes account” thus failing to use her best endeavours to facilitate the children communicating with the father using electronic communication using their own electronic devices; and
(c)discussed the Family Court proceedings or the parties’ marital issues with the children,
all being said to be in breach of the final orders.
At the first return date of the Application-Contravention on 23 November 2020, the allegations were limited to 5 in number, and the mother entered pleas of not guilty to the following charges:
CHARGE 1:
In contravention of Order 10(a) made on 13 May 2020, it is alleged that on 27 August 2020 the wife did not use her best endeavours to facilitate the children communicating with the husband by telephone, FaceTime or audio visual platforms between 6pm and 7pm.
CHARGE 2:
In contravention of Order 10(a) made on 13 May 2020, it is alleged that on 31 August 2020 the wife did not use her best endeavours to facilitate the children communicating with the husband by telephone, FaceTime or audio visual platforms between 6pm and 7pm.
CHARGE 3:
In contravention of Order 10(c) made on 13 May 2020, it is alleged that between 14 May 2020 and 24 August 2020 the wife failed to provide to the husband the children’s iTunes accounts so that the children and husband may communicate at all reasonable times using their own electronic devices, and failed to facilitate such communication by ensuring that the children’s devices can make and receive such communication with the other parent.
CHARGE 4:
In contravention of Order 15 made on the 13 May 2020, it is alleged that on the 8 July 2020 the wife discussed the Family Court proceedings or the parties’ marital issues with the children or allowed another person to do so.
CHARGE 5:
In contravention of Order 15 made on the 13 May 2020, it is alleged that on the 10 August 2020 the wife discussed the Family Court proceedings or the parties’ marital issues with the children or allowed another person to do so.
The alleged contraventions were heard on 11 March 2021. Both parties filed affidavits and both parties were cross-examined, the mother choosing to waive her right to silence.
THE LAW DEALING WITH CONTRAVENTIONS
The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A of the Family Law Act1975 (Cth) (‘Act’).
Division 13A is organised in a progression from lesser to greater seriousness, as explained in s.70NAA. In summary it deals in turn with:
a)Preliminary matters, including definitions and a provision relating to the standard of proof (s.70NAF): subdivision A;
b)Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;
c)Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;
d)Contravention established, but a reasonable excuse - the court can make orders for compensation for time lost, and costs orders: subdivision D;
e)Less serious contraventions, and no reasonable excuse - the court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E;
f)More serious contraventions, and no reasonable excuse - the court has more punitive powers, including fines and imprisonment: subdivision F.
The meaning of “contravened an order” is set out in s.70NAC of the Act.
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order--he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order;
…
(Emphasis in original)
The onus of proof is on the applicant and the standard of proof is on the balance of probabilities, having regard to the gravity of the allegation. (s.140 Evidence Act 1995 (Cth); see also Reilly [1995] FamCA 152 and Lindsey [1995] FamCA 117). The breach must be shown to be intentional, that is, deliberate as distinct from inadvertent, but it does not require proof of contumacious behaviour (Fauna Holdings & Mitchell [2000] FamCA 313; Hay & Hay [1998] FamCA 95; English & English [1986] FamCA 69; Nieuwstraten & Nieuwstraten [1987] FamCA 11).
CHARGES 1 AND 2
Order 10(a) reads:
The parties shall use their best endeavours to facilitate the children communicating with the parties as follows:
(a)When the children are with the mother the father may telephone them using telephone, FaceTime or audio visual platforms, between 6.00pm and 7.00pm.
It was conceded by the father that there was no specific evidence in his case as to attempts to telephone the children on either 27 August 2020 or 31 August 2020, but rather evidence in general about such attempts. The evidence is limited to the following:
Since the making of the orders on 13.05.2020 I have continued to attempt to telephone the children from time to time to speak to them when they are not in my care… Set out below are the times when the children were in Ms Jamar’s care and I attempted to telephone them in accordance with Order 10(a) and I was not able to speak to them:
…
27.08.2020 – 6.18pm and 6.49pm 31.08.2020 – 6.27pm
The mother’s affidavit sets out the details of her usual attempts at encouraging the children to speak to the father and in general what happens when the father calls to speak to the children. She, inter alia, speaks to reminding the children each evening that they need to communicate with their father, ensuring that the children’s daily routine are completed so that they are available to communicate with the father at the scheduled time and ensuring that the children’s relevant devices are available and sufficiently charged in order for that communication to occur.
During cross-examination the mother said that she and the father are not on speaking terms, that she is afraid of the father and that when a call comes through on either her mobile phone or the landline at her home from the father at the relevant time, she will hear the phone ring (as do the children), look to see if it is the father who is calling, and say to the children words to the effect “It’s your dad calling… he’s been waiting for the whole day to speak to you… you should speak to him…” The mother says that sometimes the children answer the call and speak to their father and sometimes they don’t. Her evidence was that she actively encourages the children to speak to their father whenever he calls, but that she cannot force them to speak to him. The Court accepts the mother’s evidence as to her encouragement of the children and her attempts at having the children speak to their father when he telephones or places a FaceTime video call. This is the mother’s subjective view as to her best endeavours. She is also of the view that the father “badgers” the children when he makes attempts at telephoning them so many times when they are with her, as they spend plenty of time with the father and they do not always want to speak to him on the phone.
The meaning of “contravened an order” has been referred to earlier in these reasons. The legislation requires that the mother either intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order, to be found guilty of having contravened an order. The test is of course an objective one.
It was submitted on behalf of the father that handing the phone over and/or telling the children to answer the phone call is doing the bare minimum, and that the requirement of the orders is that the mother use her best endeavours, which it was submitted, she has not been doing.
It is of note that neither party has any particular recollection of what occurred on either 27 August 2020 or 31 August 2020. The father, who has the onus, was not able to say, except in a very general way, that he telephoned the children on those particular days but that they did not answer. Even with the mother’s evidence as to her usual practice of not answering telephone calls from the father at the scheduled time, but rather asking the children to do so, the evidence is insufficient to prove on the balance of probabilities, that the mother either intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order as alleged.
It is clear that the order for the children’s communication with the parties is causing significant conflict, mostly due to a rigid reading of a, no doubt purposely, loosely drafted order.
Charges 1 and 2 have not been made out.
CHARGE 3
Order 10(c) reads:
The parties shall use their best endeavours to facilitate the children communicating with the parties as follows:
(c)The children may communicate with each parent using electronic communication at all reasonable times using their own electronic devices, and the parties shall facilitate such communication by ensuring that the children’s devices can make and receive such communication with the other parent.
There is no evidence in the father’s case as to the following:
(1)That the children have their own devices whilst they are living at the mother’s home;
(2)What application or program the father is using to electronically communicate with the children, and what the requirements of that application or program are; and
(3)Whether he has nominated or otherwise communicated to the mother that he wants to use a particular application or program to communicate with the children, and what that application or program is and what the requirements of that application or program are and that the mother has not, in those circumstances, ensured that the children’s devices can make and receive such communication from and to the father; and
(4)What an “iTunes account” is and how this was to be used by the children and why it was either necessary or otherwise needed to facilitate electronic communication between the children and the father.
It was apparent during cross-examination of the father that he has very little knowledge and understanding of electronic devices, applications and various device settings, and that his complaint (and allegation) about the mother not providing him with the children’s “iTunes account” was really borne out of such misunderstanding.
In any event, the father’s evidence is that on 27 July 2020 the mother wrote to the father in the following terms:
… I maintain that I have not failed to comply with the relevant order on the basis that the children do not have personal Apple accounts that could have been provided to your client.
The mother then requested that if the father proposed to provide the children with personal devices and accounts “namely an iPad and iTunes account” that he can use to contact the children whilst they are with the mother, that due to her privacy concerns, he provide the mother with the requisite funds and she would then purchase those devices. There is no evidence that the father did so. There is evidence that the children have their own iPads at the father’s home and that the mother does not permit them to bring these devices to her home, it appears due to similar privacy and safety concerns.
In cross-examination the mother said that her understanding is that children need to be at least 13 years of age before they can have an Apple account (which would provide them with their own Apple ID), but that they are able to and do use their mother’s mobile phone to speak to the father using FaceTime. The mother also said that the iPad which she has at her home is not set up to make or receive telephone calls or FaceTime calls, and that she does not know how to set this up.
The father, who has the onus, provides no evidence of his own attempts to facilitate communications using electronic devices or of the children not being able to do so. His evidence is limited to requests made of the mother for the children’s iTunes account details (which the children do not have). The evidence in the father’s case is grossly insufficient to prove, on the balance of probabilities, that the mother either intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order as alleged.
Charge 3 has not been made out.
CHARGES 4 AND 5
Order 15 reads:
That neither party discuss these proceedings, or the parties’ marital issues with the children, nor allow any other person to do so.
Charge 4 relates to 8 July 2020.
On 8 July 2020, the mother had a conversation with the oldest child X about the amount of time the children spend with each of their parents during the school holidays. X and the mother together counted the days, as a result of which the child appeared to be of the view that the father had lied to her in an earlier conversation he had with the child about school holidays.
The father said in cross-examination that he too speaks to the children about what days the children are spending with him, but that he does so only when the children ask. The father agreed in cross-examination that discussing time the children are to spend with their parents with the children was different to discussing the proceedings with the children.
Charge 5 relates to 10 August 2020.
On 10 August 2020, whilst the children were spending time with the father, the mother spoke to them, and that part of the conversation between X and the mother occurred whilst the phone was off loudspeaker and which the father could not hear. During that same phone call, the mother had a conversation with the father and offered to pick the children up.
The mother’s evidence clarifies that the children had school photos on 11 August 2020, and that they had telephoned their mother on 10 August 2020 to ask to be collected that night, so that she could get them ready for the school photos, including doing their hair.
The father did not agree to the children being picked up a night early, and the children remained with the father in accordance with the orders. The mother attended the children’s school at 9am the next day to prepare them for the photos.
It was submitted that a discussion as to the children’s time with the father was a discussion about the proceedings. Such a submission cannot be made out on the evidence, particularly in light of the father’s concession, noted at paragraph 30 above.
It was further submitted that the evidence in support of the charges is circumstantial and that the Court would infer that the mother discussed the proceedings and/or the parties’ marital issues by virtue of having discussion with the child X about the time they were spending with the father.
There is no evidence of the mother discussing the proceedings or the parties’ marital issues, and there is no evidence which could lead to the inference being urged upon the Court by the father.
Indeed, the evidence is again, grossly insufficient to prove, on the balance of probabilities, that the mother either intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order as alleged.
Charges 4 and 5 are not made out.
For all of the above reasons orders are made as set out at the forefront.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 17 March 2021
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