Haigh & Parkinson
[2024] FedCFamC2F 89
•30 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Haigh & Parkinson [2024] FedCFamC2F 89
File number(s): BRC 2206 of 2022 Judgment of: JUDGE PARKER Date of judgment: 30 January 2024 Catchwords: FAMILY LAW – CONTRAVENTION – failure to comply with orders providing for time and communication with grandparents – reasonable excuse not established Legislation: Evidence Act 1995 (Cth) ss 140
Family Law Act 1975 (Cth) ss 60CC, 70NAC, 70NAE, 70NAF, 70NEB, 70NFA
Cases cited: Childers & Leslie [2008] FamCAFC 5; (2008) FLC ¶93-356
Gaunt & Gaunt [1978] FamCA 97; (1978) FLC ¶90-468
Jets & Maker [2010] FamCAFC 55
Keehan & Keehan [2019] FamCAFC 250
McClintock & Levier [2009] FamCAFC 62; (2009) FLC ¶93-401
O'Brien & O'Brien (1993) FLC ¶92-396
Division: Division 2 Family Law Number of paragraphs: 57 Date of hearing: 23 January 2024 Place: Adelaide Counsel for the Applicant: Self-represented Counsel for the Respondent: Self-represented ORDERS
BRC 2206 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS HAIGH
Applicant
AND: MS PARKINSON
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
30 JANUARY 2024
UPON THE COURT FINDING THAT:
A.The Respondent Mother has, without reasonable excuse, contravened the orders of 1 March 2023 on three occasions.
THE COURT ORDERS THAT:
1.Unless otherwise agreed between the parties in writing, the time the children X born in 2013 and Y born in 2014 spend with the Paternal Grandparents during the term 1 and term 2 school holidays in 2024 pursuant to order 2(a) of the orders of 1 March 2023 shall be extended to conclude at 4.00pm on the Sunday eight days after the commencement of such time.
2.The Mother forthwith enrol in and complete the Parenting Orders Program offered by B Centre or such other post-separation parenting course as may be agreed between the parties and provide evidence of her completion to the Paternal Grandmother within 48 hours of completion.
3.Order 4 of the orders of 1 March 2023 be varied to add the words ‘and the First Applicant Paternal Grandmother shall be at liberty to initiate the call in the event that the telephone or video call has not been initiated by the Mother within 15 minutes of the scheduled time.’
4.The Contravention Application filed on 8 August 2023 is otherwise dismissed.
UPON NOTING:
A.Pursuant to section 65DA(2) and Section 62B of the Family Law Act 1975, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to an comply with an Order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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 by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE PARKER:
By Contravention Application filed on 8 August 2023, the Applicant Paternal Grandmother, MS HAIGH, alleges that the Respondent Mother, MS PARKINSON has, on three occasions, contravened interim parenting orders made by a Senior Judicial Registrar by consent on 1 March 2023 (‘the orders’) in relation to the children X born in 2013 and Y born in 2014 (collectively ‘the children’).
The children are the children of the Mother and the Applicant’s son. Pursuant to the orders, the children live with the Mother and are to spend time and communicate with the Paternal Grandparents at specified times.
The Respondent admitted each of the alleged contraventions but asserted that she had a reasonable excuse for her failure to comply with the orders on each occasion.
The application falls to be determined pursuant to Division 13A of Part VII of the Family Law Act 1975 (Cth) (‘the Act’).
The Applicant relied upon an affidavit filed on 28 September 2023. Both parties gave evidence and were cross-examined by the other.
THE LAW
The meaning of ‘contravened’ is set out in section 70NAC of the Act as follows:
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; or
(b) otherwise—he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
The Applicant bears the onus of proving each contravention to the requisite standard of proof.[1] In the present case, each of the contraventions is admitted. As such, the question that falls for determination is whether the Mother had a reasonable excuse for having contravened the orders on each of the occasions pleaded in the Contravention Application.
[1] Jets & Maker [2010] FamCAFC 55 at [83].
Reasonable excuse
With respect to the question of what constitutes a reasonable excuse, section 70NAE of the Act provides as follows:
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
Section 70NAE sets out a non-exhaustive list of the matters which may be considered when making a determination as to whether a party will be taken to have had a reasonable excuse for contravention of an order. The Court is entitled to take into account any and all matters which may be relevant in order to reach a conclusion as to whether a respondent has established that there was a reasonable excuse for having contravened an order.
It is well established that a belief held by the Respondent that the orders are not in the best interests of the children is not sufficient to constitute a reasonable excuse.[2]
[2] Gaunt & Gaunt [1978] FamCA 97; (1978) FLC ¶90-468, O'Brien & O'Brien (1993) FLC ¶92-396.
STANDARD OF PROOF
The standard of proof that applies in determining whether a person had a reasonable excuse for having contravened an order is the balance of probabilities: section 70NAF of the Act. Each of the findings in these reasons is made to that standard.
Section 140 of the Evidence Act 1995 (Cth) requires the Court to take into account the nature of the proceedings in determining whether it is satisfied to the requisite standard. Subsection (2) says:
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
In applying section 140(2) of the Evidence Act 1995, the Court must be mindful of the seriousness of contraventions of parenting orders, and the penalties that may be ultimately imposed. I have had regard to this consideration in making the findings outlined in these reasons.
MOTHER’S AWARENESS OF HER OBLIGATIONS
The orders were made with the Mother’s consent at a hearing at which she appeared on her own behalf. She was therefore clearly aware of their existence. The orders had attached to them the fact sheet ‘Parenting orders – obligations, consequences and who can help’, which explains the obligations of parties to orders. I am satisfied that the Mother understood her obligations pursuant to the orders. She did not suggest otherwise.
THE FIRST ALLEGED CONTRAVENTION
The first alleged contravention relates to the events of 8 April 2023. It is not in dispute that on that occasion, the Respondent failed to comply with order 2(a) of the orders, which provides as follows:
2.That the children [X], born [in] 2013, and [Y], born [in] 2014 (‘the children’) spend time with the First and Second Applicant paternal grandparents (‘the Applicants’) as follows:
a. In each of the Term 1, 2 and 3 school holidays, from 9:00am on the second Saturday of the holidays until 4:00pm on the following Wednesday; […]
The Applicant’s evidence was that:
(a)On 19 March 2023, the Respondent sent her an email which said, amongst other things, ‘I am still not, comfortable, with sending the children, as I am unable to arrange a method of transport game [sic] for them on the day and time you have chosen…’ and ‘I will, not be, sending the children, om [sic] the visit, as, I still, believe you have used the court process to manipulate me…’[3]
(b)On 5 April 2023, the Respondent sent the Applicant an email attaching a copy of a letter from Queensland Health indicating that a positive rapid antigen test result for the child X had been registered.[4]
(c)On 8 April 2023, the Applicant attended D Park in Town E, Queensland (being the designated changeover location pursuant to order 3(a) of the orders) at approximately 8.45am, together with her husband, the Paternal Grandfather, who is the Second Applicant in the substantive proceedings and a party to the orders. She remained at the changeover location for approximately 30 minutes. The Respondent did not attend with the children.
[3] Affidavit of Applicant filed 28 September 2023, annexure H-3.
[4] Affidavit of Applicant filed 28 September 2023, annexure H-2.
This evidence was not challenged in cross-examination and was supported by documentary evidence. I accept it.
This count, as pleaded, alleges a contravention without reasonable excuse with respect to the child Y only.
The Respondent’s evidence was that the child X had tested positive for COVID-19 in the days prior to the scheduled visit. This was not disputed by the Applicant. The Respondent asserted that her reasonable excuse for not having made Y available for time on this occasion was that Y had been in close contact with X and as a result, Queensland government restrictions had required Y to isolate and not to be around other people.
This assertion was directly contradicted by the letter from Queensland Health provided by the Respondent to the Applicant at the time of the events in question, which made clear that even X, as the person who tested positive, was not required to isolate. When confronted with this, the Respondent denied having seen or sent the letter to the Applicant, despite the fact that she had not challenged the Applicant’s evidence in this regard. This assertion was completely lacking in credibility. The Respondent fell far short of proving that there were any government restrictions preventing her from complying with the orders with respect to Y.
The Respondent asserted for the first time during closing submissions that both children had been sick on 8 April 2023. She had not made any such assertion when she gave her evidence or when she cross-examined the Applicant. Not only was there no evidence to that effect but it was clear that the Respondent had thought of this excuse in the moment. I do not accept that Y was unwell on the date in question.
Furthermore, the email sent by the Respondent to the Applicant clearly evinced an intention held by her not to comply with the orders which had been formed well prior to X having contracted COVID-19. This undermined her assertion that the positive COVID-19 test was her reason for having failed to comply.
The Respondent expressed the opinions that the scheduled time should not proceed if both children were not available, and that it would not have been in Y’s best interests to attend for the scheduled time without her sister, and indicated that she would prefer not to separate the children. As is well-established, an opinion held on behalf of a Respondent that the terms of the orders do not reflect a child’s best interests does not constitute a reasonable excuse.
Finally, the Respondent asserted in relation to this count (and in relation to the second alleged contravention, which relates to the same order) that she had been unable to comply with the orders because she did not have a means of transport with which to collect the children at the conclusion of their time. She gave no evidence to suggest that there had been any change in her ability to transport the children since she had consented to the orders and had made no application to vary the orders on the basis of any such change. More significantly, this assertion was contradicted by the evidence she gave with respect to the second alleged contravention (discussed below). I do not accept that there is any transport-related basis for the Respondent’s failure to comply with the orders.
The Respondent has not established a reasonable excuse for the first alleged contravention.
THE SECOND ALLEGED CONTRAVENTION
The second contravention likewise related to an alleged contravention of order 2(a) of the orders, on this occasion on 1 July 2023. The Applicant’s evidence was that on that date, she and the Paternal Grandfather had arrived at the designated changeover location at approximately 8.50am and had remained there until approximately 10.30am, and the Respondent and the children had not arrived. The Applicant’s evidence was that she had sent several emails and text messages to the Respondent, culminating in an email at 10.30am advising the Respondent that she and the Paternal Grandfather were leaving, and that she had received no response. This was admitted by the Respondent.
It is common ground that at 11.30am on that day, over two and a half hours after the changeover time provided for in the orders, the Respondent telephoned the Applicant and advised her that she and the children were present at the park. The Respondent gave evidence to the effect that she had been ‘running late’ and the Paternal Grandparents had left before she arrived. She sought to explain her lateness by stating that the changeover location was 45 minutes from her home. Putting aside the fact that on her own version of events she was over two and a half hours late, the orders quite obviously require her to leave home with sufficient time to deliver the children to the changeover location at 9.00am. This does not constitute a reasonable excuse.
The Respondent also asserted that the children had slept in. It is the Respondent’s responsibility as a parent to ensure that the children are out of bed in time to attend changeover in accordance with the orders. This is not a reasonable excuse.
The Respondent sought to explain her failure to respond to any of the communications made by the Applicant on the date in question by asserting that she was ‘overwhelmed’, it was ‘a lot to take in’, and it was ‘very stressful trying to be on time.’ This explanation was nonsensical. By the time the Applicant attempted to contact her following her failure to arrive for the changeover, she had already failed to arrive on time. When confronted with this reality, she claimed she had been ‘trying to get to the park to meet [the Applicant] before she left.’ This too was nonsensical. If she had been attempting to ensure that the Applicant did not leave the park before she arrived, the only sensible response to the communications from the Applicant would have been to respond and assure her that she and the children were on their way. It was this evidence that she was striving to get the children to the park in order to effect changeover which contradicted her claim to be unable to comply with the orders as a result of difficulties with transport at the conclusion of the ordered time, as referred to earlier in these reasons.
Despite having admitted that she had not responded to the Applicant’s attempts to contact her until 11.40am, and despite having attempted to justify such behaviour, the Respondent suddenly asserted during the course of her cross-examination by the Applicant that she had in fact telephoned the Applicant prior to her arrival at the changeover location and advised her that she was going to be late. When asked why she had not given this evidence earlier, she claimed that she had ‘only just remembered.’ The Respondent was unable to produce a phone record demonstrating that such a call had been made. It was evident that this evidence had been fabricated in the moment. I reject it.
The Respondent has not established that she had a reasonable excuse for failing to ensure that the children were at the designated changeover location on 1 July 2023.
THE THIRD ALLEGED CONTRAVENTION
The third alleged contravention asserted a failure to comply with order 4 of the orders, which provides as follows:
4.That the children communicate with the Applicants by telephone or video call each Wednesday from 6:30pm to 7:00pm, with the Respondent mother to initiate the telephone or video call to the mobile telephone of the First Applicant paternal grandmother.
The count relates to 8 March 2023, being an occasion upon which it is not in dispute that the children did not communicate with the Applicant and the Paternal Grandfather. The Respondent admitted that she had not initiated the phone call in question and claimed that this had been because she had had no credit on her prepaid mobile telephone at that time. She adduced no independent evidence to verify this. The Respondent adduced no evidence to explain why she had not taken steps to ensure that she had credit at a time when court orders required her to place a telephone call. I infer that she asserts that this is as a result of an inability to do so arising from financial difficulties, notwithstanding that her actions in consenting to the orders would suggest that she accepted that she would be able to place the phone calls as provided for in the orders and there was no evidence of any change in her financial circumstances between the making of the orders on 1 March 2023 and the missed telephone call only 7 days later.
In any event, the Respondent did not adequately explain why, if she had found herself without adequate credit, she had not taken steps to ensure that she was otherwise able to place the call, such as by using internet, either at home, or if that was unavailable, in a public location with access to free wifi. She also made no application to vary the orders and made no attempt to negotiate an alternative arrangement that would have ensured that the children could communicate with their grandparents, either that evening or at another suitable time. I gained the impression from the Respondent’s evidence generally and the manner in which she gave it that she had no motivation to comply with the orders and was content to ignore their terms. The absence of credit on her telephone, if true, was opportunistically seized upon by her as an excuse not to comply with her obligations pursuant to the orders. She has not established that she had a reasonable excuse for her contravention of the orders on 8 March 2023.
MORE OR LESS SERIOUS CONTRAVENTIONS?
There are two subdivisions with potential application to the present application, being Subdivision E and Subdivision F of Division 13A of Part VII of the Act. Subdivision E applies in cases concerning less serious contraventions, and Subdivision F in circumstances involving more serious contraventions.
Section 70NFA sets out the circumstances in which Subdivision F (more serious contraventions) will apply, as follows:
(1) Subject to subsection (2), this Subdivision applies if:
(a)a primary order has been made, whether before or after the commencement of this Division; and
(b)a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention) of the primary order; and
(c)the person does not prove that he or she had a reasonable excuse for the current contravention; and
(d)either subsection (2) or (3) applies.
Note: For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.
(2) For the purposes of paragraph (1)(d), this subsection applies if:
(a) no court has previously:
(i)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(ii)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and
(b)the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.
(3)For the purposes of paragraph (1)(d), this subsection applies if a court has previously:
(a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or
(b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.
(4)This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.
(5)This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.
The scheme of the provisions sets out a starting point where Subdivision E applies to cases that are the first occasion where a sanction has been applied, and Subdivision F where there has been a previous sanction ordered.
In the present case, no court has previously made an order imposing a sanction or taking an action in respect of a contravention by the Mother of the primary order or adjourned proceedings under section 70NEB(1)(c), and as such, the matter that falls for consideration in the determination of the subdivision to be applied is whether the Court is satisfied that the Mother has behaved in a way that showed a serious disregard for her obligations under the primary order. It was not suggested that this was the case and in my view, the evidence before the Court does not establish ‘serious disregard’ in the relevant sense. As such, this application will be determined in accordance with the provisions of Subdivision E.
CONSEQUENTIAL ORDERS
Having found the counts as pleaded in the Contravention Application established without reasonable excuse, it is necessary to identify the consequential orders that are appropriate pursuant to Division 13A.
The powers of the Court in these circumstances are set out in section 70NEB(1) of the Act, which provides:
(1) If this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
(b)if the current contravention is a contravention of a parenting order in relation to a child—make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)—impose a fine not exceeding 10 penalty units on the person;
(e) if:
(i)the current contravention is a contravention of a parenting order in relation to a child; and
(ii)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii)the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g)if the court makes no other orders in relation to the current contravention—order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
In McClintock & Levier,[5] the Full Court explained the purpose of consequential orders under Division 13A, and the relevant factors that are to be taken into account. Each of the judges gave separate reasons. Finn J said:
“The words “punish” or “punishment” are not found in Division 13A other than in section 70NFH, which is concerned with the operation of other laws which may apply to the act or omission which constitutes a contravention for the purposes of Division 13A, and in particular with ensuring that a person is not “punished” twice in respect of the same act or omission.
I accept that the use of the concept of “punishment” in s.112AP and the virtual absence of that concept from Division 13A is a sufficiently important distinction between the two sets of provisions such that it must have some significance.” at [50]-[51].
[5] [2009] FamCAFC 62; (2009) FLC ¶93-401.
Coleman J said:
“In my view, given the coercive nature of proceedings under Division 13A, it cannot be assumed, in the absence of a clear basis for doing so, that broader considerations such as ensuring that an offender was “adequately punished for the offence in a way that is just and appropriate”, preventing crime by deterring the offender and other people from committing the same or similar offences, and protecting the community from the offender, are relevant to the exercise of such discretion.
As noted earlier, learned Counsel for the father sought by reference to the decision of the High Court in Witham and Holloway (supra) to argue that, whether punishment was imposed for coercive or punitive reasons, it remained “punishment”. It was thus submitted that there is no basis for suggesting that the sentencing principles in the exercise of discretion in coercive and punitive proceedings differed. I do not accept that such a conclusion follows from or can be read into the decision of the High Court in Witham (supra). As Brennan, Deane, Toohey and Gaudron JJ said in Witham (at ALR 420)the case turned on the standard of proof which was applicable. It does not in my view follow that because the outcome of coercive and punitive proceedings may be the same in terms of the “punishment” determined, that the outcomes are necessarily reached by reference to the same principles, or in pursuance of the same objectives.
Whilst I accept that the learned Federal Magistrate was entitled to have regard to relevant sentencing principles or guidelines, I am unable to accept that his Honour was entitled to have regard to ensuring that the mother was “adequately punished” (our emphasis) in a way that was “just and appropriate”, to prevent “other people from committing the same or similar” breaches, to “protect the community” from the mother, or, other than for the purposes of procuring compliance of the court’s orders, “to denounce the conduct” of the mother.” at [156]-[159].
Cronin J said:
“In my view, there is a distinction between the coercive and punitive provisions of the Act. at.
It is helpful to compare Division 13A of Part VII to Part XIIIA and Part XIIIB. Section 70NAA(1) deals with the power of a court to make orders to enforce compliance with orders affecting children. Part XIIIA specifically refers to “sanctions” and importantly, empowers a court in exercising its “additional sentencing alternative” to apply State or Territory laws with respect to certain sentences. Whilst there are certain similarities of language between section 70NFC and section 112AG(5), the distinction is clear between the coercive nature of the orders in Division 13A and the punitive orders in Part XIIIA.
Similarly, the language of Part XIIIB relating to contempt of court could not be a more stark way of contrasting the intention of the Legislature. Section 112AP(2) empowers a court to punish a person for contempt. There is no reference to punishment in Division 13A.
The focus of a court therefore in dealing with a contravention application under Division 13A must be in making orders which will enforce future compliance with its orders.
For a court to decide to punish a party who has been found to have contravened an order for the purposes of making other like-minded persons comply with orders relevant to them, in other words, to make an example of them, would be an error of law.
Counsel for the mother was critical of [the] FM for his reference to the ACT sentencing legislation but it will be seen from his Honour’s reasons that he was simply seeking some guidance as to what relevant factors should be applied to determine what is an appropriate way to encourage compliance with court orders. Without any other legislative guide in Division 13A, I see no reason why a court cannot inform itself by any number of considerations in the exercise of its discretion providing those considerations are set out clearly and the court’s focus is on the individual party rather than on general deterrence or policy.
The very concept of tailoring an order to ensure compliance by that party may have the effect of dissuading other like-minded persons from behaving in similar ways but that cannot be the deliberate purpose of the court dealing with the application. The provision is intended to have that party comply with their particular orders relating to their children not to orders generally. Section 70NAA refers to “the powers that a court...has to make orders to enforce compliance with orders under this Act affecting children”. In my view that should not be read generally but rather, specifically to the particular parties because if sub-division F applies and a court determines to vary the existing parenting orders under section 70NBA(1) regard must be had to the best interests of the child as the paramount consideration (see section 70NBA(2). Section 70NFB(1) relating to the making of an order for costs against a party has similar directions about the consideration of the welfare of the child.
All of the provisions of Division 13A therefore focus on the parties and the court’s obligation to endeavour to make its orders work if they have been contravened.” at [230]-[237].
In summary, in McClintock & Levier, the Full Court emphasised that the focus of a court in dealing with a contravention application under Division 13A is not on punishment but on making orders which will ensure future compliance with its orders.[6]
[6] See also Keehan & Keehan [2019] FamCAFC 250.
The Applicant submitted that in the event that the contraventions were found proven, make up time for the time lost would be a suitable remedy. Noting that the current contravention is a contravention of a parenting order in relation to a child and the contravention resulted in the child not spending time with the Maternal Grandmother for a particular period, I am required by section 70NEB(4) to consider making such an order. Make up time is not, however, to be ordered as retribution without consideration to the best interests of the children concerned.[7]
[7] Childers & Leslie [2008] FamCAFC 5; (2008) FLC ¶93-356.
The Respondent accepted that make up time would be a suitable remedy in the event that the Court was not satisfied that she had established a reasonable excuse for having contravened the orders. She submitted that the make up time should not be for the full period lost, but for shorter periods, such as ‘a weekend visit’ or ‘a few hours on the weekend.’
As a result of the actions of the Respondent, the children have been deprived of the time with their grandparents to which they were entitled pursuant to the orders, in both the term 1 and term 2 school holidays. On each occasion, they missed a total of four nights with their grandparents. Spending such time with their grandparents had been agreed by the parties to be in the children’s best interests as recently as March 2023, and the Court was satisfied at that time that such an arrangement was in fact in their best interests. There is no evidence before the Court to suggest that there has been any change in circumstances which would suggest that this is not still the case.
As such, I am satisfied that an order compensating the Paternal Grandparents (and, importantly, the children) for the time lost is an appropriate order in the circumstances. I am not satisfied that there is any basis for any reduction in the amount of time the children should spend with their grandparents as a result of their mother’s failure to comply with the orders of the Court. Furthermore, although the Respondent’s address was not disclosed, her evidence was that she lives approximately 45 minutes’ walk from the changeover location at D Park, Town E, Queensland. The Applicant resides approximately two hours’ drive away at Suburb C, Queensland. The distance between the parties’ residences and the travel time involved in changeovers provides a barrier to the practicability and affordability of short weekend visits.
In light of the Mother’s expressed concerns with respect to travel to collect the children, I shall order that the make up time occur as an extension of existing periods of time with the Paternal Grandparents rather than as separate visits so that it does not necessitate any additional travel or changeovers. As such, the orders will provide that unless otherwise agreed between the parties in writing, the time the children spend with the Paternal Grandparents pursuant to the orders during the term 1 and term 2 school holidays in 2024 shall be extended to conclude at 4.00pm on the Sunday eight days after the commencement of such time.
While the first alleged contravention related only to the child Y, in circumstances where both children missed out on time with their grandparents during the period in question, and noting the Mother’s expressed preference that the children not be separated, the order for make up time will apply with respect to both children.
The Paternal Grandmother sought, and the Mother did not oppose, that in the event that a reasonable excuse for contravention of the orders was not established, the Mother undertake a post-separation parenting course. The Mother’s actions in failing to comply with the orders on multiple occasions and aspects of her evidence suggest that she is in need of training and guidance with respect to both the children’s right to a relationship with their grandparents and the importance of complying with her obligations pursuant to orders of the Court. I am satisfied that ordering that the Mother participate in a post-separation parenting course is appropriate in the circumstances.
The Paternal Grandmother otherwise submitted that she was ‘in the Court’s hands’ with respect to any other consequential orders to be imposed. Having regard to the principles espoused in McClintock & Levier, as outlined earlier in these reasons, I am not satisfied that any further consequential orders are warranted. It is to be hoped that the orders I have determined are appropriate will be sufficient to ensure that the Mother complies with her obligations pursuant to orders of the Court in future.
VARIATIONS TO ORDERS
The Paternal Grandmother sought that the orders be varied to provide that the telephone or video calls between the children and the Paternal Grandparents provided for in the orders be initiated by the Paternal Grandparents rather than by the Mother. The Mother was resistant to this proposal on the basis that she did not want the Paternal Grandmother to have her phone number. However, it is an agreed fact that the Paternal Grandmother already has the Mother’s phone number, as a consequence of the Mother having filed a document with the Court which contained the number. In these circumstances, the Mother’s resistance to the prospect of the calls being placed by the Paternal Grandmother was difficult to understand. It was also difficult to reconcile with her evidence of her inability to place the call herself as a result of a lack of phone credit, presumably arising from financial difficulties. Her submissions with respect to this issue gave the distinct impression that she was resistant to any sensible solution being found.
In any event, ultimately, neither party opposed an order being made to the effect that the Paternal Grandmother be at liberty to initiate the calls to the children as provided for in the orders in the event that the call had not been placed by the Mother within 15 minutes of the time provided for in the orders. This is a sensible arrangement which provides for the Mother to continue to initiate the calls as she seeks to do (notwithstanding her evidence as to difficulties with phone credit), but for the children not to be deprived of the opportunity to communicate with their grandparents in the event that the Mother does not do so.
Having regard to the factors set out in section 60CC of the Act to the extent to which they are relevant given the narrow scope of the orders under consideration, I find that this proposed variation is in the children’s best interests.
The Mother sought that the orders be varied to provide that the changeover at the conclusion of the children’s time with the Paternal Grandparents occur at the same location as the changeover at the commencement of the time, being D Park in Town E. She asserted that she did not have a means of transporting the children for changeover. She asserted that she does not have a motor vehicle but adduced no evidence as to the availability or otherwise of alternative options such as public transport. The Paternal Grandmother opposed this proposed variation on the basis that the cost would be prohibitive. There is no evidence before the Court as to any change to the Mother’s transport options having arisen since the making of the orders on 1 March 2023, at which time the orders were consented to by the Mother and held by the Court to be in the children’s best interests. There is also limited evidence before the Court about the parties’ respective financial circumstances and the available transport options. The orders are interim orders and the parties remain engaged in substantive proceedings. In these circumstances, I do not consider it appropriate to vary the orders in the context of the present Contravention Application.
For all of the reasons outlined above, I make the orders as set out at the commencement of these reasons.
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker.
Associate:
Dated: 30 January 2024
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