HANSON & HANSON
[2020] FCCA 2113
•10 September 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HANSON & HANSON | [2020] FCCA 2113 |
| Catchwords: FAMILY LAW – Contravention – facts admitted – reasonable excuse. |
| Legislation: Family Law Act 1975 (Cth), ss.70AE(4), (5), (6) and (7), 70NAC |
| Cases cited: Re: L (Litigants in Person Guidelines) (2001) FLC-072 TVT & TLM [2005] FMCAfam 20 |
| Applicant: | MR HANSON |
| Respondent: | MS HANSON |
| File Number: | HBC 568 of 2020 |
| Judgment of: | Judge McGuire |
| Hearing date: | 30 July 2020 |
| Date of Last Submission: | 30 July 2020 |
| Delivered at: | Launceston |
| Delivered on: | 10 September 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms K Mooney |
| Solicitors for the Applicant: | Wallace Wilkinson & Webster |
| Respondent appeared in person : |
ORDERS
That counts 1, 2, 3 and 4 of the Contravention Application filed 26 June 2020 are proven without reasonable excuse.
That the matter is listed in the Federal Circuit Court at Launceston as to penalty.
IT IS NOTED that publication of this judgment under the pseudonym Hanson & Hanson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
HBC 568 of 2020
| MR HANSON |
Applicant
And
| MS HANSON |
Respondent
REASONS FOR JUDGMENT
Application
The applicant, Mr Hanson, brings a contravention application alleging four separate counts of contravention of parenting orders made in this Court on 22 December 2016 and as follows: –
i)That contrary to order (5)(d) of the orders the respondent, Ms Hanson, on 16 February 2020 without reasonable excuse failed to deliver X for scheduled visit to Melbourne to spend time;
ii)That contrary to order (5)(c) of the said orders on 6 March 2020 the respondent without reasonable excuse failed to deliver X to Melbourne Airport to facilitate time with her father;
iii)That contrary to order (2) of the said orders on 23 April 2020 the respondent without reasonable excuse acted unilaterally, notwithstanding the objections of the father by engaging Dr B to treat Y; and
iv)Contrary to order (5)(c) of the said orders on 12 June 2020 the respondent without reasonable excuse failed to deliver X to Melbourne Airport to facilitate time with her father.
The respondent represents herself at the hearing of the this application although it is clear that she had legal advice in respect of the application and up to the day of the Court hearing when Counsel appeared on her behalf seeking leave to withdraw. The respondent was advised as to the procedure in Court and in respect of contravention applications. The applicant is represented by solicitors and Counsel. He relied on his affidavit affirmed 26 June 2020.
The respondent entered pleas to each of the counts of guilty but with a reasonable excuse.
The orders of 22 December 2016 are in respect of five children being:
i)V born in 2001;
ii)X born in 2003;
iii)Z born in 2005;
iv)W born in 2007; and
v)Y (known as 'Y’) born in 2009.
Specifically, the allegations in Counts 1,2 and 4 in respect of the children not attending for time with the father relate only to X who at the relevant to times was 16 or 17 years of age. It appears that the other children attended for time with the father. The orders provide inter-alia for the parents to have equal shared parental responsibility for the five children and for the children to spend time with the father in each Victorian school holidays and for one weekend per term 'at the discretion of the father but provided he give the mother not less than 28 days prior notice of each such election’.
Given the nature of the pleas entered, the matter proceeded by way of the respondent, on her onus to prove a reasonable excuse, giving viva voce evidence. She was cross-examined by Counsel. The father then gave evidence in accordance with his affidavit and was cross-examined by the mother.
The mother's evidence in respect of counts one, two and four was essentially identical. She agrees that she did not provide X for time with the father. She says that X herself had spoken to the father by telephone and by email saying words to the effect that she no longer intended to see the father pursuant to the orders. The mother said that at the relevant times X was 16 and 17 years of age. The mother said that she had sought legal advice with the implication being that she understood that she was not required to provide X for time with the father contrary to the child's stated wishes. The mother also says that she had a letter from X’s psychologist about X needing a degree of flexibility and autonomy in her relationship with her father in order to maintain that relationship. Further the mother says that X also had various extra-curricular commitments which conflicted with the father’s designated time with the child. The mother in her own words was ‘unable to drag her by the hair to the car or aeroplane.’
The mother said that X had advised both herself and the father that she would not be going. She alluded to unsuccessful attempts by X, herself and the father to negotiate other or alternative arrangements.
In respect of count three the mother's evidence is that as long ago as 2017 she had been contacted by Y's school in respect of him requiring a paediatric review. She said that she had then made arrangements but such were not supported by the child's father. She says that the father himself had telephoned the medical practitioner and cancelled the appointments. She says that in 2018 the school again made recommendations for a paediatric intervention for Y. The mother says that she made three separate attempts to arrange mediation to resolve this issue but that the mediator(s) was not open to conducting a mediation in circumstances where the mother had complained of prior and/or continuing family violence.
The mother says that she proceeded to obtain a referral from a general practitioner and made an appointment with Dr B for November 2019. She sent a copy of the referral of 12 October to the father asking for his permission. She says that she received a reply on 15 October 2018 to the effect that he would agree to the consultation for Y but on condition that he would also attend. The mother says that she replied saying that she would not attend with the father but was open to him making his own different appointments with Dr B. She said that she received no further correspondence from the father. She attended at the appointment with Dr B but was told that the father had cancelled the appointment.
It seems that throughout 2019 Y had a number of appointments with Dr B which the mother says occurred on a roughly 6-weekly basis. She says that a report from Dr B of the consultation of 17 January 2019 was sent to the father. She says that she received a letter from the father's lawyers in March 2019 suggesting alternative paediatricians for Y. The mother says that she accepted the father's proposal but only conditionally being that the father himself meet any gap payments for those practitioners such not applying to Dr B who apparently bulk bills. She says that she received no reply to this response.
The Father's Evidence
The father's affidavit is affirmed 26 June 2020. He says that he lives in City C in Tasmania and is employed as a health care professional. He annexes the relevant orders. The father's affidavit states that he is seeking make-up time in respect of X pursuant to anticipated findings on his application.
The father's evidence in a factual sense did not differ greatly from that of the mother. He emphasised, however, that he withdrew his consent for Y to see Dr B in late 2018 or early 2019. He says that his concern is in respect of the mother giving a biased view of their history to the general practitioner and hence in the referral to Dr B. He says that he is not opposed per se to paediatric interventions for Y but, himself being a health care professional, is keen that the histories given be balanced. He says that he then received one report from Dr B in early 2019 and reasonably thereafter concluded that she was no longer engaged in respect of Y.
The father agrees that he did have discussions with X in respect of alternative arrangements but no agreements were reached.
Relevant Law
Division 13A of Part VII of the Family Law Act 1975 ('the Act') provides for contravention proceedings. Within that Division s.70NAC defines 'contravened an order' as:
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.
Consequently, it can be seen from the above statute that the notions of 'intention' and 'reasonable attempt' are to the fore in consideration of any alleged contravention.
It is well-established that an applicant alleging a contravention has an onus to prove the elements of that contravention and usually on the balance of probabilities. However, as is the case here, where a plea of 'guilty but with a reasonable excuse' is entered, then the onus switches to the respondent to prove his or her reasonable excuse on the balance of probabilities. In the matter now before me of course, the mother admits the elements of the allegation but argues 'reasonable excuse/attempt'.
In TVT & TLM[1] my colleague Judge Riethmuller opined:
[1] [2005] FMCAFam20 @ [33]
Whether the steps taken are a 'reasonable attempt to comply' with a children's contact Order will ultimately depend upon the facts and circumstances of each case. However, it is accepted that the residence parent has a duty to ensure that the child not only attends, but does so in a positive manner. The way that the obligation has been expressed in different cases throws further light on the extent of the obligation:
(a)The residence parent must actively encourage the child to attend contact as ordered;
(b)‘The courts have been careful to consider whether in reality, not just on the face of things, the person has taken reasonable steps to deliver the child: O'Brien & O’Brien (1993) FLC 92-396 at [13];
(c)It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep … Stevenson v Hughes (1993) FLC 92-363;
(d) Similarly, a mere request that the child telephone, or come to the telephone, is insufficient;
(e)Once an Order for contact has been made, it is ‘no longer a case of saying to the child: you go if you want to, if you wish to go you go, or you make up your own mind’: see O'Brien & O’Brien (supra);
(f)A residence parent ought to make ‘a child understand that it was the [residence] attitude that the child had to go [on contact]’: see O'Brien & O’Brien (supra);
(g)The residence parent is expected to bring to bear all the authority that they have over a child, just as they would to ensure the child attends school: See P & P [2002] FMCAfam 315 (Unrep) at [14].
(h)It must be noted that ‘an invitation can be designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or a manner which of its own suggests that this is your obligation under the Order but mummy really does not mind if you say no.’ Such an invitation is insufficient: see Stevenson v Hughes (supra);
(i)It is not sufficient to make a token effort that compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation’: see Stevenson v Hughes (supra) at [6];
(j)‘It is not sufficient discharge of a custodian's obligations, express or implied, to point to words and actions and to say, in effect: 'You see, I tried. But the child does not want to go.' And thereafter to figuratively fold their arms as if that were an end of the matter’: Stevenson v Hughes (supra) at [6]; and
(k)The residence parent is ‘not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or positive resistance’: Stevenson v Hughes (supra) at [8].
Whilst the notion of 'reasonable excuse' is not exhaustively defined in the Act and therefore the defence is available at large, the legislation does offer two specific defences of 'reasonable excuse'. Firstly, pursuant to s.70NAE(2)(a) it is a defence for a party to show that he or she did not understand the obligations created by the order. The onus sits with the respondent in arguing such a defence.
Secondly, specific defences are available at ss.70AE(4), (5), (6) and (7) which provide relevantly for the matter now before me:
(a)The respondent has a belief on reasonable grounds to act in breach of an order is necessary to protect the health or safety of a child or a relevant person; and
(b)The breach continues only for so long as is necessary to effect the protection.
The word 'and' between (1) and (2) is a necessary conjunctive in this defence in that both limbs must be proven on the balance of probabilities.
Consideration
In the three counts now before me where X has not attended for time with the father pursuant to Court orders, the mother argues, firstly, that X is of an age where she should have input into the terms and flexibility of her time with her father. Secondly, the mother says that she could not 'drag the child by the hair'. Thirdly, the mother argues that, in any event, she encouraged X to 'negotiate' directly with the father. Fourthly, the mother says that X had preferred extra-curricular activities conflicting with her time with the father. To my mind, none of these reasons, either separately or cumulatively, give rise to a defence of reasonable excuse. Firstly, and significantly, the mother has made no attempt to amend the orders. It is quite clear that the Act itself anticipates that there will be circumstances where orders cannot be complied with and implies that it is then incumbent upon the 'resident parent' to rectify that situation as soon as practicable and, if necessary, by applying to discharge or amend the relevant orders. To put it another way, it is not open for a party to simply rest on such an argument and allow a continuing prima facie breach. The mother made no such application.
Secondly, it is not a discharge of the mother's obligations to delegate the responsibility to the child herself to negotiate her relationship with her father. It is the very basis and rationale of the Family Law Act 1975 that parents have and take responsibilities for their children. Nowhere is it anticipated that a child under the age of 18 years, regardless of how close they may be to 18 years, should assume the responsibility of the parent. Indeed, to permit the child to assume that negotiating role is arguably a serious dereliction of the mother’s overall parental responsibility and certainly so given the conflictual background evident in this family.
The mother says that she cannot 'drag the child by the hair'. The Court is not without sympathy to the difficulties confronted by parents generally in respect for teenage children. They can be obstropulous and defiant. Nevertheless, this is a trait experienced generally in teenagers’ lives and not limited to compliance with Family Court orders. Parents are given the benefit of Court orders, as in this case where the mother asked for an order that the children live with her and to relocate from Tasmania to Victoria, on the basis that they are expected to be able to parent their children in accordance with normal social mores and certainly in compliance with Court orders and, in particular, those orders which maintain the relationship with the non-resident parent. Again, if the orders are unworkable then there is an onus on the mother to come back to Court to argue for a discharge or amendment to those orders.
Alternatively, the mother suggests in her oral evidence that she obtained advice from a lawyer with the implication that she considered that she no longer had an obligation to send the 17 year old X. If, indeed, such advice was rendered then it is most certainly wrong. However, as is the case with all parenting orders, the mother received an unambiguous annexure to those orders setting out clearly her obligations under the orders and the ramifications for a breach. The mother was represented by lawyers when she successfully argued to relocate with the children from Tasmania to Victoria. The mother did not adduce evidence from any lawyer and gave no particulars of the advice given. I do not accept, therefore, that the mother misunderstood or believed reasonably that she had been relieved of her responsibilities under the orders. Certainly, the agreed fact that this mother has previously suffered and been convicted on a contravention application supports my reasoning.
Consequently, I am not persuaded that the mother has proven a defence of 'reasonable excuse/attempt' on the balance of probabilities in respect to counts one, two and four on the application.
Count 3
Count three relates to the allegation that the mother unilaterally engaged a medical practitioner, namely a paediatrician, in respect of the child Y, and did so contrary to the order for equal shared parental responsibility. Again, she admits the elements of the charge but argues 'reasonable excuse'.
As I understand it, the mother argues that it was the child's school who suggested paediatric intervention for Y and may well have nominated the paediatrician. It is clear that there was communication between the parties despite their historical extraordinarily poor level and abilities at communication. The father gave a conditional consent to the engagement of Dr B. The mother did not accept this condition and suggested another one being that the parents engage separately with Dr B. No agreement was reached in respect of this issue. Secondly, the mother says that the father offered alternative paediatricians and that she 'accepted' albeit again conditionally upon a financial term. It is clear again that no agreement was reached between the parties in respect of these proposals. It is abundantly clear that the poor communication and lack of any trust between these parties served to compound the difficulties here where it may well have been that young Y would have benefited from paediatric assistance. Nevertheless, that is not the issue for me in respect of this application.
The parties agree that near the end of the 2018 the father explicitly withdrew any consent or asserted consent he had given to the engagement of Dr B. It seems that he conveyed this to Dr B herself. Communications thereafter were highlighted by a lack of response on both sides. This resulted in Y continuing to engage with Dr B throughout 2019 and into 2020 and apparently on a roughly 6-weekly basis. I am satisfied that the father was unaware of this continuing engagement in that he did and was entitled to rely on his letter to the doctor advising of his lack of or withdrawal of consent. Further, the father says and I accept that he only became aware of the continuing involvement of Dr B when he received a report from the doctor sometime in April 2020. Firstly, I am satisfied that he did not give consent or acquiesced to the continuing engagement of Dr B. Equally, I am satisfied that the mother continued to engage Dr B for Y in the knowledge that the father had withdrawn his consent. No subsequent agreement was reached between the parties and I am satisfied that no correspondence was provided to the father such that it could be argued that he then acquiesced to the continuing engagement of Dr B. It follows, therefore, that the mother on the date alleged engaged Dr B for Y without the father's consent and indeed contrary to the father's withdrawn consent and hence contrary to the order for equal shared parental responsibility and the obligations thereunder.
If the mother argues some form of necessity or 'impossibility' in respect of a dire need for medical intervention for Y then she has neither given nor adduced evidence of any particularity in respect of the same.
In all those circumstances, I am not persuaded that the mother has argued a reasonable excuse/attempt in respect of this count on the balance of probabilities and the count is proven.
Consequently, the father's application is proven in respect of each of the four counts and I have found that the mother has not proven her defence of reasonable excuse in respect of any of those counts.
I will now hear the parties or their legal representatives in respect of the penalty.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge McGuire
Associate:
Date: 10 September 2020
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