Hartnett and Sampson (No. 6)

[2007] FamCA 494

FAMILY COURT OF AUSTRALIA

HARTNETT & SAMPSON (NO. 6) [2007] FamCA 494

FAMILY LAW CONTEMPT - Contravention of Court order

Family Law Act 1975 (Cth) Part VII
 Div 13A

APPLICANT: Mr Hartnett

RESPONDENT: Ms Sampson

FILE NUMBER: SYF 3827 of 2004

DATE DELIVERED: 24 May 2007

PLACE DELIVERED: Sydney

JUDGMENT OF: Dawe J

HEARING DATE: 23 & 24 May 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: Mr Paul

SOLICITOR FOR THE RESPONDENT: Paul & Paul Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Karagiannis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Services Commission of NSW

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Hartnett & Sampson

Orders

1. That the children, a daughter and a son spend time with the husband from 5.00 pm Tuesday 5 June 2007 until 5.00 pm Sunday 10 June 2007 in Sydney in the State of NSW.

1. That the wife must within fourteen [14] days from today contact the Manager or Deputy Manager of the Child Dispute Services of the Family Court of Australia, Sydney Registry and discuss with him or her the orders made today and arrangements for a suitable parenting programme in Sydney in the State of NSW, Melbourne or Geelong in the State of Victoria.

1. The wife must within fourteen [14] days of that discussion arrange an appointment with the recommended programme provider on or before the 16 July 2007 for an initial assessment of her suitability for the recommended post separation parenting programme.

1. The wife must attend the appointment for the initial assessment at any reasonable time and place nominated by the programme provider.

1. If assessed as suitable for a programme or part of a programme and the programme provider nominates a particular programme for her to attend she must attend that programme or part of that programme as soon as practicable.

1. The wife is to file and serve an affidavit confirming her attendance at the programme within fourteen [14] days of completing the programme.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3827 of 2004

MR HARTNETT

Applicant

And

MS SAMPSON

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The matter before me is the application of the husband alleging that the wife has contravened an order of this Court affecting the children.  The application was filed on 29 January 2007 (document 290).  Proceedings generally between the parties have been ongoing since 2004.  The parties are the parents of two children, a daughter who was born on … April 2003 and a son who was born on … November 2004. 

2. The contravention application alleged that the wife contravened the orders of 15 August 2006, paragraph 1, paragraph 2 and paragraph 3 and 18 October 2006 paragraph 2 sub-paragraph (2).  The orders of the Court are before the Court in exhibits A and B of the husband's affidavit.  In essences the orders provided that the husband spend time with the children three out of four weekends; on Saturday from 9.00 am to 4.00 pm and on Sunday from 9.00 am to 5.00 pm, the original order providing for the son to spend a shorter time on Sunday with the husband.

3. The contravention application alleges that the wife contravened the orders on 27 January 2007 when she did not make the children available for contact.  It also alleges that the wife contravened the orders on 28 January 2007 when without reasonable excuse she did not allow contact to occur between the husband and the children. 

4. At the hearing before me on 23 and 24 May 2007 the husband appeared in person and the wife was represented by Mr Paul. 

5. On 23 May at the beginning of the hearing I dealt with the wife's application to dismiss the contravention application because it was alleged that the husband had not proved that the husband was due to spend time with the children on either the 27 or 28 January 2007.

6. For reasons which I gave yesterday I did not dismiss the proceedings.  I found that the orders of 15 August and 18 October 2006 did provide for the husband to spend time with the children on the 27 and 28 January 2007.  

7. The law in relation to matters of contravention is clearly set out in Div 13A of Pt VII of the Family Law Act. The amended provisions apply to these proceedings being an application which was commenced after the amendments came into effect on 1 July 2006.

8. The Act in particular provides:

   “ SECT 65N

   (1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.

   (2)        A person must not:

   (a)hinder or prevent a person and the child from spending time together in accordance with the order; or

   (b)interfere with a person and the child benefiting from spending time with each other under the order.

   SECT 70NAC

   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.

   SECT 70NAD(b)

   (b)a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order; and

   SECT 70NAE

   (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).

   (2)A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)the court is satisfied that the respondent ought to be excused in respect of the contravention.

   (3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

   (4)A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

   (a)     the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)     the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (5)A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a)     the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)     the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (6)A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

   (a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (7)A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:

   (a)     the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)     the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   SECT 70NAF

   (1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

   (2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

   (3)     The court may only make an order under:

   (a)     paragraph 70NFB(2)(a), (d) or (e); or

   (b)     paragraph 70NFF(3)(a);

   if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.”

1. Clearly the provisions of s.70NAF require that I be satisfied as to the allegations both in relation to the contravention and reasonable excuse on the balance of probabilities if I am to make certain orders at the conclusion of the proceedings.

2. The husband relied on his affidavit filed on 29 January 2007 (document 291) and the affidavit of Ms J who was the person who supervised the husband's time spent with the children at the time in January 2007.  Ms J's affidavit was filed in February 2007 (document 293).  The husband and Ms J were both cross-examined. 

3. I indicated that the husband had made out a case to answer on the basis that the husband was due to spend time with the children on the 27th and 28 January and that the wife had not made the children available on those dates.

4. The wife then provided her affidavit sworn on 23 May 2007 and gave brief oral evidence-in-chief.  She was then cross-examined by the husband.  For reasons which I gave on 23 May I did not grant the wife leave to call a police witness by telephone link to give evidence.  The oral application to do so was an attempt to discharge the specific orders of the Judicial Registrar made on 28 March 2007.

5. The evidence of the husband and Ms J and that of the wife differed as to the conversation which took place between the husband and the wife on 14 January 2007. 

6. I accept the evidence of the husband and Ms J that the husband was in Geelong on 27 January 2007 expecting to spend time with the children from 9.00 am that day.  He travelled from Sydney earlier that morning.  Both the husband and wife gave evidence that the husband sent an SMS message from his mobile phone to the wife's mobile phone on the morning of 27 January enquiring as to where the children were.

7. The wife gave evidence that she sent an SMS back to the husband; the husband says he did not receive such an SMS.  The husband waited for a short time at the motel for the children on 27 January and then travelled to the wife's home in Geelong.  No-one was home. 

8. The contents of the conversation which took place on 14 January 2007 were in dispute.  This occupied much of the cross-examination of the parties.  The husband's version of the events is set out in paragraph 29 and paragraph 30 of the affidavit and similarly Ms J sets out a similar version in her affidavit.

9. The counsel for the wife sought to challenge this evidence.  Although the husband and Ms J gave more detail when cross-examined I do not accept that this necessarily means that their affidavit evidence was incorrect or unreliable.  When cross-examined by counsel for the wife the husband maintained that on 14 January he specifically told the wife he would not swap the weekends of 27 and 28th January with the off weekend of the 20th and 21 January. 

10. He was aware at that time that the wife wished to attend a wedding on the weekend of 27 and 28th January.  It was at that time clear to the parties that the weekend of the 20th and 21 January would normally have been what has been described as an “off weekend” when the children did not spend time with the husband.  The husband readily conceded that he aware of the wife's wish to attend the wedding and that she had offered a swap.  He maintained, however, that he had not agreed to any such change.

11. Ms J was also clear in her evidence under cross-examination that she heard the conversation between the husband and wife on 14 January; she maintained the evidence in her affidavit and did not agree to the wife's version of events. 

12. The wife's evidence of this incident is in page 7 of her affidavit.  However during the final cross-examination by the husband on the last day the wife admitted that she had not taken the children to the motel to spend time with the husband on the weekend of the 20 and 21 January.  She said that she thought that the conversation she had with the husband on 14 January had indicated to her that he would be “likely to agree to the swap” that she proposed, however she readily conceded that on the 20 and 21 January she did not consider that the husband was expecting to spend time with the children.

13. The wife had maintained that when she had spoken to the husband on 14 January she had said to him during the conversation, "So we will swap".  Her evidence was that the husband did not reply to this question but threw his hands up in the air and walked off.  I am satisfied having heard all of the evidence that the closing submissions of the wife’s counsel were correct, namely that by the time of 27 January the wife knew (indeed by the time she went away) that she did not have the husband's consent to the arrangements to vary the time that he should spend with the children.

14. In considering the evidence before me I am not satisfied that the husband agreed to any change to the orders.  I am satisfied that the husband was expecting to spend time with the children on the 27th and 28 January and that the wife knew that the husband had not agreed to any change for that weekend.  

15. There now remains the question of whether the wife had a reasonable excuse to contravene the orders when she did not arrange for the children to spend time with the husband on the 27th and 28 January. 

16. One of the bases upon which I am asked to find that the wife had a reasonable excuse was that the arrangements which she put in place were good for the children;  they would enjoy the wedding and enjoy the social activities with friends and family and the associated holiday.

17. The other ground, I understand, is that her request to alter the arrangements for the husband to spend time with the children on one weekend offering a swap of weekends, was a reasonable request and it was unreasonable of the husband not to agree to the change. 

18. Obviously the grounds alleged for the reasonable excuse do not fall within the specific provisions set out in s.70NAE but s.70NAE clearly states that the definition of reasonable excuse is not limited to those specific provisions referred to in that section.

19. The wife maintained that the function and activities to which she took the children on the weekend of the 27 and 28 January were in the best interests of the children for various reasons.  I have no difficulty in accepting that the children enjoyed the wedding and their social activities and the interaction with family and friends but this does not provide a reasonable excuse for failing to obey a Court order.

20. The wife's counsel submitted that the wife's request to change the weekends was a reasonable one and the husband's response was unreasonable.  The husband in fact did not respond to correspondence from the wife's solicitors in relation to the request for a change of weekends.  His evidence is that his response was made orally to the wife on 14 January during the conversation after he returned the children.

21. This application however, is not the hearing of an application to vary the order when it might be appropriate to take into account whether the request was reasonable and whether the refusal was reasonable.  This is a hearing to determine if the wife had a reasonable excuse for contravening an order of the Court.  The orders of the Court bind the parties unless both agree to change them or the Court otherwise varies the orders. 

22. The children may have enjoyed the trip to Queensland and the wedding; the wife may have made a reasonable request to vary arrangements, but even if the husband's rejection of the offer was unreasonable (and I do not have sufficient evidence before me to make such a finding on the balance of probabilities) those circumstances would not provide the wife with a reasonable excuse to take matters into her own hands and ignore the Court order.

23. I find that the wife contravened the Court orders by failing to allow the husband to spend time with the children on the 27 and 28 January and that she did so without reasonable excuse.

24. I will now hear the parties concerning what sanctions, if any, should be imposed pursuant to the provisions of the Act. I have already heard some from the husband in his other address to me in which he was suggesting that I consider a bond and what I interpreted to be also compensatory time with the children. I understood from the submissions of the husband that he is maintaining that the contravention, if proved, would fall within the provisions of sub-division E of Div 13A namely a contravention without reasonable excuse (less serious contravention). I therefore do not consider it necessary to consider the provisions of s.70.NEA(4) with relates to serious disregard of the obligations.

25. I am now dealing with the issue concerning the sanction, if any, to be applied in relation to the contravention by the wife. As previously indicated the options that are available are set out in the Div 13A of the Family Law Act. In particular I accept that it is appropriate to deal with this matter under the provisions which indicate that the contravention was without reasonable excuse but it has not been established with the appropriate standard of proof that it was a serious disregard for the Court orders. I look therefore to the provisions of s.70NEA and the other provisions of sub-division E as to the options available to me. The powers of the Court include to make an order directing that:

    “A person who committed the current contravention or another specified person to attend a post separation parenting program;   making a further parenting order that compensates a person for time the person did not spend with the children as a result of the current contravention; adjourning the proceedings to allow an application to vary to discharge and making an order requiring the person who committed the current contravention to enter into a bond in accordance with s.70NEC. ”

1. The provisions of s.70NEB(1)(e) and (f) refer to the payment of expenses and the payment of costs.  Sub-section (g) is not relevant. 

2. I consider all of the matters in relation to the contravention that I have heard in evidence and in particular the finding that I have made that the contravention was without reasonable excuse.  I have to take into account the financial circumstances of the parties.  Whilst I accept that the husband has been put to expense.  If there were moneys available to the wife to make payment immediately I would so order.

3. I also take into account that the information concerning the particulars of the expense to which the husband has been put is not detailed.  I have also taken into account the financial circumstances of the parties and the concession of the husband that if and when the former matrimonial home is sold it is likely that the wife will receive very little of the funds, most of the funds being taken to meet the extraordinary amount of legal costs she has incurred in these proceedings.

4. Taking into account the financial circumstances of the parties I do not consider it appropriate in these circumstances to make any order in relation to expenses or costs. 

5. In relation to the question of whether the solicitor for the wife should be ordered to pay costs I am not satisfied that it would be appropriate to consider any such order against Mr Paul, even though he may have been counsel for the wife in relation to a wholly unsuccessful defence of the application for contravention, that is not a basis under Rule 19 to make any order against the solicitor in person.  I am not satisfied that it would be in any way appropriate to further consider the husband's application in that regard.

6. I have also considered the question of placing the wife on a bond to be of good behaviour.  Whilst initially there is some attraction to that type of order I do not consider that it would be appropriate in these circumstances.  What needs to be clear is that there will be consequences for any party if there is a contravention of a Court order without reasonable excuse and that both parties should consider that this will result in a penalty or an order being made taking into account that contravention.

7. Specifically I consider that the most appropriate orders in these circumstances are that the wife attend a post separation parenting program specifically directed to considering the necessity to abide by the Court orders to reduce litigation between the parties.  Reduction of litigation in this matter can only be seen to be something which is clearly in the best interests of the children.  I therefore propose to order that the wife attend a post separation parenting program. 

8. I have taken into account the provisions of s.11 that requires me to consider taking advice of the Director of Manager of Child Dispute Services of the Court.  I propose to direct that the wife attend the manager or deputy manager of the Child Dispute Services with a view to thereafter being directed by him or her to attend a program which is an appropriate program in the circumstances of this matter in Sydney.

9. If it transpires that the Appeal Court makes any order that discharges or stays the orders requiring the children to reside in Sydney then such post parenting program may take place in Geelong. 

10. I also consider that it is appropriate that the children spend time with the father to compensate him for the time that was lost.  The wife opposes the contact being this weekend on the basis that, I am told from the Bar Table, that she has non-refundable tickets for the return of the children to Victoria.

11. I am also told, and it has been noted by the Court, that the parties have agreed that the father will spend time with the children in accordance with paragraph 18(ii)(a) and (b) of the orders of Moore J of 21 March 2007 notwithstanding the children's residence has not been relocated to Sydney and that such agreement between the parties will continue subject to any orders made in relation to the review that I am to hear today and subject to any changes made by the Full Court on the hearing of the appeal from the refusal of the stay order.

12. I therefore consider it appropriate for the children to spend time with the father from the conclusion of the contact that is to take place in what is otherwise week four.  If we are currently in week two and that today is 24 May then week four would be 7 June and that the children are to spend time with the father from the Tuesday at 5.00 pm on 5 June to Thursday at 5.00 pm on 7 June.

13. I propose to extend that contact to take into account the Friday and Saturday and Sunday.  This is obviously more time than might otherwise be considered compensation for the time lost, if you do an exact hourly calculation, however it is also possible for me to vary the order in relation to the time spent with the children.  I therefore am proposing to order that the children spend time with the father from 5.00 pm Tuesday 5 June and instead of spending time with concluding on 7 June at 5.00 pm that it conclude at 5.00 pm on Sunday 10 June.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  30 May 2007