Hatch and Vining
[2019] FCCA 1705
•21 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HATCH & VINING | [2019] FCCA 1705 |
| Catchwords: FAMILY LAW – Contravention application – breaches of final parenting orders – admissibility of evidence – ten counts alleged – mother admits all ten counts but argues reasonable excuse – reasonable excuse established on all counts. |
| Legislation: Evidence Act 1995, ss.69, 135, 136, 140 Family Law Act 1975, ss.65DA, 70NAA, 70NAC, 70NAD, 70NAE, 70NBA, 70NCA, 70NCB |
| Fooks v Clark (2004) 32 Fam LR 149 In the Marriage of O’Brien (1992) 16 Fam LR 723; [1993] FLC 92-397 In the Marriage of Stevenson and Hughes (1993) 16 Fam LR 443 McClintock & Levier [2009] FamCAFC 62; (2009) FLC 93-401; 41 Fam LR 245; 233 FLR 179 Stamp & Stamp [2014] FCCA 1269 TVT & TLM [2006] FMCAfam 20 |
| Applicant: | MR HATCH |
| Respondent: | MS VINING |
| File Number: | SYC 1825 of 2014 |
| Judgment of: | Judge Monahan |
| Hearing date: | 14 February 2019 |
| Date of Last Submission: | 14 February 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Campton SC |
| Solicitors for the Applicant: | Pryor Tzannes & Wallis |
| Solicitors for the Respondent: | Mr Frost of Horizons Family Law Centre |
ORDERS
THE COURT FINDS THAT:
In relation to the Application – Contravention filed by the Applicant Father on 4 December 2018, the Respondent Mother has established a reasonable excuse for contravening the following paragraphs of the final orders dated 18 August 2014 on the following dates:
i.Paragraph 3.2 on 22 September 2018 at 9:00am;
ii.Paragraph 3.2 on 20 October 2018 at 9:00am;
iii.Paragraph 3.2 on 3 November 2018 at 9:00am;
iv.Paragraph 3.2 on 17 November 2018 at 9:00am;
v.Paragraph 3.2 on 1 December 2018 at 9:00am;
vi.Paragraph 4.2 on 6 October 2018 at 9:00am;
vii.Paragraph 5 on 6 October 2018 at 9:00am;
viii.Paragraph 8 on 19 September 2018 at 6:00pm;
ix.Paragraph 8 on 20 September 2018 at 6:00pm; and
x.Paragraph 8 on 21 September 2018 at 6:00pm.
AND THE COURT ORDERS THAT:
The Application – Contravention filed 4 December 2018 be adjourned to a date and time to be fixed for further hearing (“the hearing”).
AND THE COURT NOTES THAT:
A.The purpose of the hearing is to consider further submissions relevant to the outcome of this decision.
B.The substantive parenting proceedings are listed before the Court in the duty list on 26 June 2019 at 9:30am.
IT IS NOTED that publication of this judgment under the pseudonym Hatch & Vining is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1825 of 2014
| MR HATCH |
Applicant
And
| MS VINING |
Respondent
REASONS FOR JUDGMENT
Introduction
This decision arises from the filing of an Application – Contravention by MR HATCH (“the father”) against MS VINING (“the mother”). The Application – Contravention was filed on 4 December 2018 (“the application”) and came before the Court for the first time in a duty list on 13 February 2019.
The relevant child of the relationship is [X], born … 2010 (“[X]” or “the child”).
The application alleges 10 contraventions by the mother during the period from 19 September 2018 until 1 December 2018 of certain final orders made by the Family Court of Australia on 18 August 2014 (“the final orders”).
In response, the mother:[1]
·Admits each charge of contravention identified in the Application of the father filed 4/12/18 is established;
·Contends she had a reasonable excuse for each contravention; and
·Argues that her evidence to establish such reasonable excuses are contained in her affidavit filed 4 February 2019.
[1] See Exhibit “A”.
As stated, the application came before me in a duty list on 13 February 2019 and the Court was pressed to hear the application on an urgent basis as the child was not spending any time with the father. After consideration, and given the entrenched positions of the parties and apparent inability to reach any acceptable interim outcome despite being legally represented by experienced practitioners, the Court agreed to commence hearing the application the following day subject to the Court having capacity in the duty list week to do so. The Court was able to reach the hearing on the afternoon of the following day.
At the hearing of the application the father was legally represented on that occasion by Mr Campton SC and the mother was legally represented by her solicitor, Mr Frost.
Following the hearing of the evidence and submissions relevant to the allegation/reasonable excuse phase the Court reserved its decision.
Background
Relationship History
The father was born on … 1973 in Country A and is currently 45 years of age. The mother was born in Country B on … 1984 and is currently 34 years of age.
The parties commenced a relationship in … 2004 and were married on … 2004.
As stated, there is one child of the relationship, [X], who was born … 2010. He is currently 8 years of age.
The father asserts that the parties separated on a final basis on 1 July 2012 and the mother asserts an approximate date in October 2012.
A Divorce Order was made by this Court on 20 May 2014.
Procedural History
The parties filed an Application for Consent Orders on 14 August 2014 and final parenting and property orders were made by Registrar Chayna on 18 August 2014.
The father filed his Contravention Application on 4 December 2018 and it was made returnable in a duty list before me on 13 February 2019.
The mother filed an Initiating Application on 4 February 2019 seeking to vacate the 2014 orders in relation to parenting issues. The mother also filed an affidavit addressing the contravention application as well as the substantive proceedings she sought to commence.
On 13 February 2019, I made orders adjourning the matter for hearing on the following day as time was fully exhausted on my duty list.
As stated, the application was heard on 14 February 2019 following which the Court’s decision was reserved.
The substantive proceedings are listed for directions on 26 June 2019 at 9:30am.
The Alleged Contraventions
As stated, the application alleges multiple contraventions of the following final orders.
Paragraph 3.2 of the final orders[2] states:
[2] See Counts 1 to 5.
3. The child shall spend substantial and significant time with the Father as follows:
3.2 Every second week-end with the Father from 9:00am Saturday until 6:00pm Sunday.
Paragraph 4.2 of the final orders[3] states:
[3] See Count 6.
4. That the Child spends time during the following special days as noted below:
4.2 On the Father’s birthday, if the child is not otherwise spending time with the party according to these Orders, for a period of not less than six (6) hours at a time with the Father if the birthday falls on a non-school day, or for a period of three (3) hours if the birthday falls on a school day, or such time as agreed between the parties.
Paragraph 5 of the final orders[4] states:
That the parties agree on the time that the Child is to spend with each parent during each school/pre-school holiday period no less than one month prior to the said school/pre-school holiday and failing such agreement, the Child shall spend the first half of the pre-school/school holiday period with the Mother and the second half with the Father.
[4] See Count 7.
Paragraph 8 of the final orders[5] states:
Whist the child is living with one parent during school term or school holidays that parent is to ensure that the child communicates with the other parent by telephone or email at least every second day.
[5] See Counts 8 to 10.
The 10 ‘counts’ or alleged contraventions are pleaded as follows:
Count 1 (breach of paragraph 3.2 of the final orders)
At Item 7 of the application, it is alleged that on 22 September 2018 at 9.00 am at [the mother’s residence]:
The Respondent, without reasonable excuse, refused to allow the Applicant to spend time with the child, [X].
Count 2 (breach of paragraph 3.2 of the final orders)
At Item 7 of the application, it is alleged that on 20 October 2018 at 9.00 am at [the mother’s residence]:
The Respondent, without reasonable excuse, refused to allow the Applicant to spend time with the child, [X].
Count 3 (breach of paragraph 3.2 of the final orders)
At Item 7 of the application, it is alleged that on 3 November 2018 at 9.00 am at [the mother’s residence]:
The Respondent, without reasonable excuse, refused to allow the Applicant to spend time with the child, [X].
Count 4 (breach of paragraph 3.2 of the final orders)
At Item 7 of the application, it is alleged that on 17 November 2018 at 9.00 am at [the mother’s residence]:
The Respondent, without reasonable excuse, refused to allow the Applicant to spend time with the child, [X].
Count 5 (breach of paragraph 3.2 of the final orders)
At Item 7 of the application, it is alleged that on 1 December 2018 at 9.00 am at [the mother’s residence]:
The Respondent, without reasonable excuse, refused to allow the Applicant to spend time with the child, [X].
Count 6 (breach of paragraph 4.2 of the final orders)
At Item 9 of the application, it is alleged that on 6 October 2018 at 9.00 am at [the mother’s residence]:
The Respondent, without reasonable excuse, refused to allow the Applicant to spend time with the child, [X].
Count 7 (breach of paragraph 5 of the final orders)
At Item 11 of the application, it is further alleged that on 6 October 2018 at 9.00 am at [the mother’s residence]:
The Respondent, without reasonable excuse, refused to allow the Applicant to spend time with the child, [X].
Count 8 (breach of paragraph 8 of the final orders)
At Item 13 of the application, it is alleged that on 19 September 2018 at approximately 6.00 pm at [the mother’s residence]:
The Respondent, without reasonable excuse, refused to allow the Applicant to communicate with the child, [X].
Count 9 (breach of paragraph 8 of the final orders)
At Item 13 of the application, it is further alleged that on 20 September 2018 at approximately 6.00 pm at [the mother’s residence]:
The Respondent, without reasonable excuse, refused to allow the Applicant to communicate with the child, [X].
Count 10 (breach of paragraph 8 of the final orders)
At Item 13 of the application, it is further alleged that on 21 September 2018 at approximately 6.00 pm at [the mother’s residence]:
The Respondent, without reasonable excuse, refused to allow the Applicant to communicate with the child, [X].
Evidence
Father
The father relied on the following documents:
·The Application – Contravention filed on 4 December 2018; and
·His affidavit affirmed on 3 December 2018 and filed on 4 December 2018.
I note that while the father filed an affidavit on 13 February 2019 that he affirmed on 12 February 2019, this affidavit was not relied upon and hence not read by the Court.[6]
[6] Transcript, 14 February 2019, page 34.
The father also tendered one document, being the Annexure to Draft Consent Parenting Order signed by the mother on 1 August 2014 (Exhibit “1”).
Mother
The mother relied on her affidavit sworn and filed on 4 February 2019.
The mother also sought to tender two documents, being:
·Material produced under subpoena from NSW Police in relation to the father (marked “1”);
·Material produced under subpoena from the NSW Department of Family and Community Services (marked “2”).
Objections to tender of evidence
The father objected to the tender of the above material.
Mr Campton for the father submitted that the documents were hearsay and thus should be excluded as this is a ‘final hearing’, and if the Court was against him on that point, then “I take a 135 objection”[7] (an objection pursuant to section 135 of the Evidence Act 1995). Section 135 provides the Court with a general discretion to exclude evidence as follows:
[7] Transcript, 14 February 2019, page 5.
135. The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
In response, Mr Frost for the mother argued that the documents were business records and thus admissible. He also sought clarity from Mr Campton as to the ‘135 objection’.[8]
[8] As above.
Firstly, Mr Campton disputed that the “COPS” entries are business records as they are prepared for the purposes of litigation, and secondly, in relation to the ‘135 objection’, Mr Campton argued that if the Court:
“were to accept the hearsay documents for the purposes of the reasonable excuse matters, number 1, they can’t have been matters that were in the wife’s mind at the day of the reasonable excuse. That is, on the day of contravention, the wife can’t have known what was in the police material. That’s the first one. The second one is that there is a real issue as to the weight that your Honour can give it. Because if you’re giving a COPS entry, it’s an entry by someone in a summary form, for example, that can’t at all be tested – can’t at all be tested. And so the prejudicial value of material that must be contended to be the subject of serious weight as to the state of mind of the respondent on the day of contravention can’t have that logical connection that your Honour needs for it to have weight of any meaning or probative value. So what I’m saying is, someone who can’t be tested who has done a summary of some different sources of knowledge from a few years ago can’t help your Honour on reasonable excuse at a particular time.[9]
[9] Above n 7.
In response, Mr Frost argued:
If I can deal with the matters my friend has raised in turn. Firstly, in my respectful submission, they’re not documents that have been produced for the purposes of litigation. The COPS database is produced explicitly in my submission as a business record for police so that they can internally refer to it later on if it becomes relevant and helpful to them. They’re not routinely produced by police unless they’re subpoenaed in the course of criminal prosecutions. With respect to the argument my friend raises that the documents weren’t known to my client at the point in time, the documents themselves obviously weren’t. But she deposes in her affidavit to the event that occurred in March [2016] which is the subject of the COPS database entry.
… Well, with respect to that, it would be helpful for me to say at this point. My client’s case is not that there was one emblematic event, the scale and type of which means that, after it, she had a reasonable excuse, and before it she didn’t. My client’s case is that incidents aggregated across time; that having aggregated, they reached a point where she formed the belief that she must act; and that her belief assessed – appraised objectively was reasonable. So it will be the case that my client – it will be the case that my client relies upon what might be regarded as a large number of small events and a small number of medium events. Nonetheless, my client’s case is that aggregating that, that string of matters stretching over what I concede is a long period of time, she reached a point where she had a belief that was reasonable. And, regrettably, her belief can’t be properly understood without regard to the full aggregation of incidents.[10]
[10] Transcript, 14 February 2019, pages 5-6.
Following those submissions I indicated to the legal representatives that I would need to leave the bench to read through the disputed material to make the necessary determinations. Given the potential loss of hearing time Mr Campton suggested that the documents be “marked for identification, or provisionally marked,” and the Court defer the issue to allow cross examination to commence.[11] Submissions would thereafter be delivered on the basis that the material either came in as evidence or they did not.
[11] Transcript, 14 February 2019, pages 7-9.
There was no objection by Mr Frost to proceeding in this way.[12]
[12] Transcript, 14 February 2019, pages 9 and 30.
Findings
The Court is required to determine whether the tagged documents produced under subpoena from the NSW Police and the NSW Department of Family and Community Services (“FaCS”) are admissible in this dispute. I will consider the exclusion issue pursuant to s135 of the Evidence Act 1995 prior to considering whether the hearsay exception applies.
The first question to determine is whether the tendered material should be excluded pursuant to section 135 of the Evidence Act 1995. Clearly, the Court has a discretion to allow the material into evidence or to exclude it on the basis that it if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the father (rather than the alternate arguments that it is arguably misleading, confusing or would cause or result in an undue waste of time).
Having considered the arguments in light of the submitted material, I find that the tender of the material should not be excluded pursuant to section 135 of the Evidence Act 1995. I do not find that the material is unfairly prejudicial to the father (or otherwise falls within the scope of the provision).
For completeness I note that the Court also has a general discretion to limit use of evidence pursuant to section 136 of the Evidence Act 1995:
136. The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
As I expressed to the legal representatives during the course of their submissions, I would have concerns in reading entries that dated back some years. Documents that fall within a reasonable period prior to, and following, the relevant contraventions may have potential relevance.
The second question being raised on objection is whether the ‘COPS’ (NSW Computerised Operational Policing System) documents are objectionable under the hearsay rule or whether they fall within the ‘business records’ exception provided for by section 69 of the Evidence Act 1995 Cth.
‘COPS’ is an operational database used by NSW police to record information relevant to all victims, offenders and incidents that require police action. Its purpose is to record all incidents reported or becoming known to police which of their nature would require some police action (even only to record), for investigative and intelligence purposes.
While both advocates present interesting arguments I am persuaded by Mr Campton’s argument that the ‘COPS’ records do not fall within the business records exception within the hearsay exception.
I note there appeared to be no issue that the documents produced by FaCS were business records.
Consequently, subject to relevance the (FaCs) material will be admitted into evidence as Exhibits “RM1” (NSW Police) and “RM2” (FaCS) respectively.
Cross examination
The mother was also cross-examined. The mother was well spoken and was generally able to agree to reasonable propositions that were put to her.
Under cross examination the mother admitted (or did not disagree) that the following events occurred in the lead-up to the relevant contraventions:
·the child spent some block time with the father during the July 2018 school holidays;
·the child spent time with the father between Friday 27 July 2018 and Sunday 29 July 2018 (as required by the final orders);
·following the mother and the child’s trip to Country C, the child spent time with the father (as required by the final orders) from Saturday 11 August 2018 until Sunday 12 August 2018;
·the child spent time with the father (by agreement with the mother) for a two hour period on Saturday 18 August 2018;
·the child spent time with the father (as required by the final orders) on Saturday 25 August 2018 until Sunday 26 August 2018;
·the child spent time with the father (by agreement with the mother) from on the morning of 1 September 2018; and
·following the father’s trip to the Country D, the child spent time with the father (by agreement with the mother) during the day on Sunday 16 September 2018.
The mother also admitted to consulting with lawyers on a number of occasions over the years and that they assisted her with writing an email to the father’s then lawyer on 2 October 2018.
I will comment further on the mother’s cross examination later in these reasons during my discussion of the contravention counts.
Relevant Law
Introduction
Division 13A of the Family Law Act 1975 (“the Act”) deals with the consequences of failure to comply with orders, and other obligations that affect children. Part VII Division 13A of the Act deals with the consequences of failure to comply with orders and obligations that affect children. Such orders would encompass both parenting orders and other orders (such as injunctions) relevant to children.
Section 70NAD of the Act deals with the requirements taken to be included in certain orders. Under s.70NAD(b) the order relevant to the contravention may be a parenting order, and this includes an order relating to the time that a child spends with a person which includes a requirement that the parties act in accordance with s.65N of the Act.
Preliminary issues
Before going any further, there are two preliminary issues that I wish to canvass.
Section 65DA
Firstly, s.65DA of the Act provides that there is a duty on the Court to include in a parenting order (whether interim or final) particulars of:
·the obligations that the order creates; and
·the consequences that may follow if a person contravenes the order.
The duty upon the Court is to ensure that persons affected by parenting orders, other than child maintenance orders, must be firstly provided with information about the obligations the orders create and the consequences that may follow if a person contravenes the order. The information ought to be explained in a language that is likely to be readily understood by the person to whom the order is directed and inform them of the availability of programs to help people understand their responsibilities under parenting orders. The particulars are to be set out in a standard form and annexed to the orders. The Court has a brochure setting these out. A legal practitioner representing a party can be requested to fulfil the Court’s duty to provide particulars and explanations.
The relevant final orders in this case were made by a Registrar of the Family Court of Australia in chambers following the filing of an Application for Consent Orders by the parties on 14 August 2014. The relevant consent application sought the approval of both final parenting and property orders. It also attached a copy of the Binding Financial Agreement entered into between the parties on 6 August 2014 pursuant to section 90D of the Act and a copy of the Binding Child Support Agreement entered into between the parties on 6 August 2014 pursuant to section 80C of the Child Support (Assessment) Act1989. It is clear from the relevant consent application that both parties were legally represented at the time of filing and at the time they entered into the relevant consent orders and deeds. The parties’ signatures were witnessed by their respective solicitors that also provided the parties with independent advice regarding the relevant deeds.
That all said, it is not entirely clear from my reading of the file that section 65DA was fully complied with in this case. The Orders made by Registrar Chayna on 18 August 2014 are as follows:
UPON APPLICATION TO THE COURT IT IS ORDERED:
1. By consent and pursuant to Part 10.4 of the Family Law Rules 2004, orders, declarations and notations are made in terms of the Consent Orders attached.
2. That pursuant to s62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
3. That pursuant to s65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
That said, the relevant notice or “fact sheet” was not attached to the Court’s copy of the orders and nor is it attached to the copy of the Orders attached as Annexure “A” to the husband’s affidavit affirmed on 3 December 2018 and filed on 4 December 2018. That said, the mother in this case was legally represented at the time that the Orders were made and she has, in relation to the application that is the subject of this decision, admitted all 10 counts as alleged but on the basis of raising a reasonable excuse. Consequently, the Court does not view the possible omission of the attachment of the relevant notice or “fact sheet” as an impediment in determining this application in such circumstances.
Regulation 25B.04
Secondly, the procedure at a hearing of a contravention application is set out in rule 25B.04 of the Federal Circuit Court Rules 2001 (“the Rules”) and states:
At the hearing of the application, the Court must:
(a) inform the respondent of the allegation; and
(b)ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c) hear any evidence supporting the allegation; and
(d)ask the respondent to state the response to the allegation; and
(e) determine the proceeding.
It is important for a Court to follow this procedure and inadvisable to depart from it, especially where one or both of the parties is not legally represented.[13] I note again that that in these proceedings:
·both parties were legally represented; and
·the Respondent (mother) has, in relation to the application, admitted all 10 counts as alleged but on the basis of raising a reasonable excuse as contained in her evidence.
[13] See Caballes & Tallan [2014] FamCAFC 112.
I will now focus my reasons on the relevant provisions of Division 13A of the Act.
Meaning of “Contravened an Order”
Section 70NAC of the Act deals with meaning of “contravened an order” and states:
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.
Generally speaking, the applicant to a contravention application bears the onus of proving the contravention by the respondent on the balance of probabilities. Section 140 of the Evidence Act 1995 is also relevant. Consequently, the Applicant (being the father in this case) bears the burden of proving on the balance of probabilities that the Respondent (being the mother in this case) either intentionally contravened the relevant order or alternatively that she made no reasonable attempt to comply with the order.
If, and only if, the Applicant can do this, does the Court move on to consider any reasonable excuse that may exist in relation to the proven contravention.
That all said, in this case the mother has admitted all 10 counts as alleged by the father.
Meaning of “reasonable attempt”
The issue of whether a Respondent has made a reasonable attempt to comply with the order has been considered in a number of cases.
It is clear that a parenting order, particularly in relation to one parent facilitating a child spending time with the other parent, is not a mere declaration but rather casts an obligation upon the relevant parent, such as the mother in this case: “to take reasonable steps to deliver the child to the [other parent] at the commencement of the access period”.[14]
[14] In the Marriage of Stavros (1984) 9 Fam LR 1025 at [1030] and followed in In the Marriage of Stevenson & Hughes [1993] FamCA 14; [1993] FLC 92-363; 112 FLR 415; (1993) 16 Fam LR 443.
In TVT & TLM [2006] FMCAfam 20 (“TVT”) Riethmuller FM, as his Honour then was, stated, “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”.[15]
[15] TVT & TLM [2006] FMCAfam 20 at [33].
Indeed the Full Court of the Family Court stated in the case of In the Marriage of Stevenson and Hughes (1993) 16 Fam LR 443 that a primary carer parent, such as the mother in the case before me, must appreciate that they are not entitled to treat the other parent “as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance”.[16]
[16] In the Marriage of Stevenson and Hughes (1993) 16 Fam LR 443 at [450] (Fogarty J).
It ultimately turns on the facts and circumstances of each case as to whether the steps taken are a “reasonable attempt to comply” with a ‘spend time with’ order. That said, it is accepted that the parent with whom the child normally resides has a duty to ensure that the child not only attends, but does so in a positive manner.
In TVT and again in his more recent case of Stamp & Stamp [2014] FCCA 1269, Judge Riethmuller noted that the way that the applicable obligation has been described in different cases provides considerable guidance as to the extent of the obligation:
21. …
a) The ‘live with’ parent must actively encourage the child to attend time with the other parent as ordered (see Webber and Budd (No 2) [2011] FamCA 539).
b) ‘The courts have been careful to consider whether in reality, not just on the face of things, the [live with] person has taken reasonable steps to deliver the child for [spend time]’: see O'Brien & O’Brien [1992] FamCA 52; (1992) 16 Fam LR 723; (1993) FLC 92-396 at [13]. In Ackersley & Rialto [2009] FamCA 817, at para [102], Cronin, J referred to the ‘Parenting orders – obligations, consequences and who can help’ statement, which is annexed to every parenting order of this Court and includes the following statement:
Your legal obligations
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders.
c) ‘It is not open to the custodial parent to do no more than bring the child to the front entrance and invite [the child] to walk of [their] 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. See: Stevenson & Hughes [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [25].
d) ‘Similarly, a mere request that the child telephone, or come to the telephone is insufficient’, see: TVT & TLM [2006] FMCAfam 20 at [33].
e) Once an order for the child to spend time 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 (1993) FLC 92-396 at [11].
f) A ‘live with’ parent ought to make ‘the child understand that it was the [live with parent’s] attitude that the child had to [spend time]’: see O'Brien & O’Brien (1993) FLC 92-396 at [8].
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 WJP & TP [2002] FMCAfam 315 (Unrep.) at [12] and [14].
h) It must be noted that ‘an invitation can be made 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 in 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 (1993) FLC 92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [26].
i) ‘[I]t is not sufficient to make a token effort at 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 [live with parent] of compliance with the obligation’: see Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [6].
j) ‘It is not a sufficient discharge of [live with parent’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 (1993) FLC 92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [6].
k) The ‘live with’ parent is ‘not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance’: Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [1993] FamCA 14; 112 FLR 415; (1993) 16 Fam LR 443; (1993) FLC 92-363 at [8].
If the Court is satisfied that the mother did contravene the final orders, either intentionally or by not making a reasonable attempt to comply, then the Court is also bound to consider whether the mother had a reasonable excuse for doing so. In this case, as stated, while the mother has admitted all 10 counts as alleged by the father, she does raise the defence of reasonable excuse in relation to each count.
Meaning of “reasonable excuse”
Section 70NAE of the Act deals with the meaning of a “reasonable excuse for contravening an order”. Section 70NAE(2) states:
A person (the respondent) is taken to have 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 Court on the person bound by it; and
(b) the Court is satisfied that the respondent ought to be excused in respect of the contravention.
I note at this stage of my reasons that the relevant orders are clear in their intention. In any event, the mother has admitted all 10 counts as alleged by the father.
Section 70NAE(5) of the Act deals with “contravening an order dealing with whom a child is to spend time with” and states:
A person (the respondent ) is taken to have 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 necessary to protect the health of the person referred to in paragraph (a).
Section 70NAE(6) of the Act provides a similar provision in relation to a contravention of a communication order.
As to the defence available under s.70NAE of the Act, Smithers J, in the case of In the Marriage of O’Brien (1992) 16 Fam LR 723; [1993] FLC 92-397, stated:
… it seems to me that [the section][17] makes it clear that a reasonable excuse in respect of concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether in the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out of the access order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person, including the child.[18]
[17] The actual words used by Smithers J were “the passing of s 112AC(3),” which was the relevant provision at that time.
[18] [1993] FLC 92-397 at 80,045.
Of course, there may be situations where a child is so resistant and distressed that a refusal to spend time with, or communicate with, the relevant parent will be excused and I note that the decision in Fooks v Clark (2004) 32 Fam LR 149 is one example. However such situations “are rare in the absence of precipitating conduct by the contact parent, or otherwise ‘changed circumstances’.[19] The circumstances often (but not always) demonstrate that the primary carer parent has not taken appropriate steps to ensure that the child spends time with the other parent.[20]
[19] TVT & TLM [2006] FMCAfam 20 at [40] (per Riethmuller FM as he then was).
[20] An example of where these issues are considered is W & N [2003] FMCAfam 240 (per Scarlett FM as he then was).
I note again that the standard of proof to be applied in determining whether the person who contravened the order had a reasonable excuse for doing so is proof on the balance of probabilities (s.70NAF(2)). In order to determine whether a reasonable excuse has been proven an objective test should be applied.[21]
[21] See Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell (2000) 27 Fam LR 81 at [123] (per Nicholson CJ, Kay and Warnick JJ); also see TVT & TLM [2006] FMCAfam 20 at [37] and Iverson and Iverson [2007] FMCAfam 257 at [50] (per O’Sullivan FM as he then was).
As stated, the mother raises the defence of reasonable excuse in relation to all 10 counts and the evidence will be considered shortly.
Where a contravention is established
If a Court is considering contravention proceedings, then regardless of whether the contravention is established or reasonably excused, the Court has powers under section 70NBA of the Act to vary the parenting orders. Section 70NBA states:
Variation of parenting order
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii) the court finds that the person committed a contravention of the primary order.
(2)If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a) the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post-separation parenting program or a part of such a program;
(b) there was no post-separation parenting program that the person who contravened the primary order could attend;
(c) because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court's opinion, for the person to attend a post-separation parenting program, or a part of such a program;
(d) the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
The Court also has powers under s.70NDB to make an order compensating a person for time lost. Indeed, the provision is clear that the Court is required to consider making a ‘time lost’ order or ‘makeup’ order provided that such is in the best interests of the child. More specifically, s.70NDB(1)(c) states that the Court:
may make a further parenting order that compensates the person for time that the person did not spend with the child (or the time that the child did not live with person) as a result of the current contravention[.]
The Court will need to further consider these provisions and hear further submissions once the Court has determined the issue of reasonable excuse in relation to each of the 10 counts.
Contravention without a reasonable excuse
Subdivisions E and F of Part VII, Division 13A of the Act, when read together, make it clear that the Court has powers to deal with contraventions committed with a reasonable excuse and those without a reasonable excuse.
Apart from a ‘time lost’ order, the Court has a range of powers to deal with an inexcusable contravention that includes making consequential orders such as a community service order, a bond, a fine not exceeding 60 penalty units, a sentence of imprisonment, an order to attend a post-separation parenting program to better understand the obligations created by parenting orders, and/or a costs order, all of which depend on the severity of the circumstances.
The Full Court explained the purpose of consequential orders made under Division 13A and the relevant factors that the Court is required to consider in McClintock & Levier [2009] FamCAFC 62; (2009) FLC 93-401; 41 Fam LR 245; 233 FLR 179 (“McClintock”). In particular, Cronin J made the following comments:
233. 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.
234. 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.
…
236. 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 s 70NBA(1) regard must be had to the best interests of the child as the paramount consideration (see s 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.
237. 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.[22]
[22] McClintock & Levier [2009] FamCAFC 62 per Cronin J; see similar comments by Coleman J at [154].
This is reinforced in s.70NAA which, for completeness, states:
Simplified outline of Division
(1) This Division deals with the powers that acourt with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.
(2) Thecourt always has the power to vary the order under Subdivision B. In doing so, the court will have regard to any parenting plan that has been entered into since the order was made (see section 70NBB).
(3)The other orders that thecourt can make depend on whether:
(a) a contravention is alleged to have occurred but is not established (Subdivision C); or
(b) the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or
(c) the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).
Contravention not established
Just as there are consequences where a contravention is established, there are also consequences that may flow if the Applicant fails to establish an alleged contravention (see section 70NCA).
Firstly, the Court may consider an application for costs, that the person who brought the contravention application pay some or all of the costs of the other party (see section 70NCB(1)). This in turn requires the Court to consider the following criteria, set out in section 70NCB(2). That section provides as follows:
(2) The court must consider making an order under subsection (1) if:
(a) the Applicant has previously brought proceedings in relation to the primary order or another primary order in which the Applicant alleged that the respondent committed a contravention of the primary order or that other primary order; and
(b) on the most recent occasion on which the Applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NBA, 70NDB, 70NDC, 70NEB or 70NFB in relation to the contravention.
For completeness, I also note that if a contravention is established by an Applicant but the Court is satisfied that a Respondent is reasonably excused and no ‘time lost’ order should be made pursuant to section 70NDB, section 70NDC of the Act provides that a Court may make an order for the applicant to “pay some or all of the costs of another party” (see section 70NDC(2)).
Secondly, notwithstanding any determination that a contravention is not established, the Court may still find it appropriate to vary the relevant parenting orders (see section 70NBA discussed above).
Discussion and Findings
The Court will now consider each count raised by the application in light of the available evidence and submissions:
Count 1
Discussion
As stated, the mother admits that on 22 September 2018 she breached paragraph 3.2 of the final orders by not facilitating the child spending time with the father that weekend.
The father gives evidence that he requested to spend time with the child over the weekend commencing 21 to 23 September 2018 and that in response he received the following text message from the mother on 18 September 2018 which stated:
“hey Fri and say won’t work but I can rearrange some things so you can have all day Sunday.”
The father also asserts that approximately 3:12pm on 21 September 2018 he received an email from the mother which stated that she would not facilitate the child spending time with him.
In response the mother gives the following evidence:[23]
[23] See mother's affidavit filed 4 February 2019, paragraphs 58 to 59.
·the mother’s concerns about the father’s misuse of alcohol (and associated behaviour) became more acute during July and August 2018 following discussions with the child;
·the father collected the child from the mother on Saturday 1 September 2018 to take the child to sports;
·the father travelled to the Country D between 2 September 2018 and 16 September 2018 (and the mother took the child to the airport to say goodbye to the father on Sunday 2 September 2018 which the Court notes was Father’s Day in 2018);
·the text message the mother sent 18 September 2018 was in response to a request by the father to have the child that weekend because he had been away;
·the mother had hoped that by offering time during the day, that would reduce the risk of the child being exposed to the father’s alleged abuse of alcohol;
·the father responded to the mother’s text message on 18 September 2018 by allegedly making certain threats to her;
·on 19 September 2018 the father sent the mother a letter complaining about the refusal to allow the child to spend overnight time with him on the forthcoming weekend;
·following receipt of this letter the mother formed the view that it would not be safe the child to spend overnight time with the father that weekend;
·on 21 September 2018 the mother sent an email to the father inviting him to attend the mediation to discuss her concerns about the child’s safety and indicating that she would facilitate regular time with the child during the day (that is, from 9:00am to 5:00pm on both the Saturday and the Sunday);
·between 21 September 2018 and 2 October 2018 the mother asserts that the father refused to attend mediation and dismissed the mother’s concerns about the child.
The mother attaches a copy of the father’s letter dated 19 September 2018 as Annexure “B” to her affidavit filed 4 February 2019. Interestingly, the letter written by the father (who is a legal practitioner) is marked “WITHOUT PREJUDICE SAVE AS TO COSTS”. The letter raises alleged past breaches of the final orders and suggests that as a consequence of those breaches the father may be filing proceedings, not just for enforcement of the orders, but also orders for the setting aside of the final orders and the relevant Binding Child Support Agreement. The mother also attaches to the same Annexure:
·a copy of her email reply sent 21 September 2018; and
·a copy of the father’s email reply also sent 21 September 2018.
As stated, under cross examination, the mother admitted that she had received some legal advice over the years including the period before and after Count 1.[24]
[24] Transcript, 14 February 2019, page 22.
Findings
While the intention of paragraph 3.2 of the final orders is clear, it appears that the relevant weekend would have fallen within the applicable ‘spend time with’ cycle. There is evidence that the father was overseas on the previous relevant weekend (that is 7–9 September 2018). As noted previously, Father’s Day occurred on 2 September 2018 and there is evidence that the father was at Sydney Airport that day and that the mother had taken the child there to farewell the father before his trip to the Country D. I note that paragraph 4.4 of the final orders provides that the child is to spend time with the father on Father’s Day between 10:00am to 6:00pm if the child is not otherwise spending time with the father that day in accordance with the final orders. In addition, it would appear that the child spent time with the father by agreement with the mother on 1 September 2018 and 16 September 2018 (but not overnight).
Notwithstanding, the mother has admitted the breach and raises the defence of reasonable excuse.
While the mother raises family violence (to both herself and the child) in the years leading up to the contraventions, it is her concern about the father’s possible abuse of alcohol when the child may be present, and the father’s alleged behaviour when affected by alcohol, that appears to have been the trigger to the dispute between the parties prior to that relevant weekend. There is contemporaneous evidence of those concerns in the material produced under subpoena from the Department of Family Community Services albeit from reports made by the mother (see Exhibit ‘RM1’). The interviews conducted by the Department with the child, albeit a month after the relevant contravention, does raise concerns about whether the father is aggressive, potentially violent and may abuse alcohol.
Notwithstanding the absence of the ‘COPS’ entries it is relevant that the father admits that he had a conviction for drink driving in 2015 for which he was placed on an 18 month good behaviour bond and disqualified from driving for 12 months. While the circumstances that caused that conviction are not clear to the Court, the conviction is an indicator of potential past alcohol misuse and post-dates the making of the final orders.
The FaCS material also records concerns being raised (presumably by the mother) about the father’s “alcohol use and related decision-making and aggression” in the lead up to the first contravention. For example, a FaCS officer records that:[25]
On 31/7/18 Ms Vining called me to say that Mr Hatch had picked [X] up from her parents place and was reeking of alcohol and then put [X] in the car and drove off with him. I advised Ms Vining to call the police – they offered a welfare check however by this stage Ms Vining was scared for how Mr Hatch would behave towards [X] once police left.
That said, the same entry goes on to state that:
“Ms Vining then got legal advice and was told this week that she has grounds for pausing their contact agreement (every second weekend with Mr Hatch) and to start mediation.”
Notwithstanding, the entry then goes on to state:
Ms Vining was reluctant to stop this contact as it is [X]’s weekend and Mr Hatch has planned for family to attend on Saturday and that would be cruel and also she is scared of Mr Hatch subsequent abuse. Ms Vining said it is unlikely Mr Hatch would drink drive as the party will be at his house, and we have discussed safety planning with [X] in the last two sessions – to give him a phone to call her or police if she does send him and he can’t wake dad up/is scared. Ms Vining strongly stated that drink-driving with [X] is unacceptable. Ms Vining has again consulted with police… was also advised she can pause orders if safety concerns.
[25] See Exhibit “RM1”
I find this evidence relevant to establish that the mother had some genuine concerns about the child spending extended periods with the father and the risk that the father may consume alcohol to excess and, notwithstanding a prior drink driving conviction, drive a car while intoxicated with the child present.
In addition, the evidence of the written exchanges between the parties shortly prior to the relevant weekend are concerning. Although the Court understands and appreciates the father’s desire for the child to spend time with him over the relevant weekend following his return from overseas in accordance with final orders, the father’s response to the mother’s concerns presented as somewhat legalistic and threatening. While the Court acknowledges that the father is a legal practitioner, his dismissiveness of the alcohol misuse allegation, and the impact upon the child, was not without some prior foundation and was certainly less than child focused. I note again that the mother did facilitate the child spending additional time with the father during the day on 16 September 2018.
Notwithstanding there being evidence that the mother sought some legal advice prior to the relevant contravention of the final orders, I am satisfied and find that the evidence supports there being a reasonable excuse for that non-compliance on this occasion.
Count 2
Discussion
This count alleges a breach of paragraph 3.2 of the final orders on the weekend commencing 20 October 2018 which the mother admits.
In response, the mother gives evidence of a conversation between the parties that occurred on 6 October 2018 which is a Saturday two weeks after the previous contravention that is the subject of a separate contravention allegation by the father being Count 6.[26] The conversation, which occurred in a church and in the presence of the child, is detailed at paragraph 60 of the mother’s affidavit. It would appear that the parties discussed the previous contravention, the mother’s allegations, the father’s response and the likelihood of further legal proceedings. The mother also gives evidence about taking the child to visit the paternal grandfather (who the mother claims was very unwell) in Region E Hospital on 10 October 2018. The mother asserts that following these events the child became “very unsettled” and that on 19 October 2018 she had a conversation with the child about the child’s concerns about an incident that occurred between the father and the child on 3 September 2017. The mother then goes on to give evidence that the father attended [X]’s sports game on 20 October 2018 which is the same day that the mother admits that the child failed to go into the father’s care.[27]
[26] Mother's affidavit filed 4 February 2019, paragraphs 60-64.
[27] Mother's affidavit filed 4 February 2019, paragraph 65.
Overall, the evidence referable to this particular contravention is thin. While it appears that the child did see the father that day the mother admits that she did not facilitate [X] spending time with the father in accordance with the final orders. That said, the mother did cause an email to be sent to the father’s then lawyer on 2 October 2018 in response to their letter dated 28 September 2018 (see Exhibit “B” to her affidavit). In that letter the mother outlines what she describes as a “non-exhaustive” list of matters of concern to explain that she believes that she has a reasonable excuse for not complying with the final orders that includes:
·[X] has reported to me Mr Hatch becoming extremely intoxicated whilst [X] was in his care, including to the point of smashing glass beer bottles, engaging in road rage incidents, and becoming angry and threatening towards [X];
·Mr Hatch has transported [X] in his car while clearly intoxicated;
·[X] has reported to me that Mr Hatch has struck across the face. Mr Hatch has also threatened to hit [X] again in my hearing;
·Mr Hatch has said to me in [X]’s presence that he wishes I didn’t exist;
·Mr Hatch has provided [X] with a mobile phone in which there were numerous pornographic images and videos;
·Mr Hatch allows [X], at 8 years of age, to watch M-rated movies and play violent online video games.
In her email letter the mother then goes on to note that the father may now be willing to engage in mediation and, if this is still the case, that she would be still willing to do so and she proposes a specific service that could be employed. The mothers email letter then goes on to state:
In the meantime, I confirm that I am willing to facilitate [X]’s time and communication with Mr Hatch in the manner outlined in my email to him of 21 September 2018, until such time as we attend mediation, being;
·[X] will communicate with Mr Hatch according to the arrangements set out in the August 2014 orders, provided that Mr Hatch agrees to refrain from discussing with him any of the contact arrangements in question, from using any negative or derogatory or accusatory comments about me and to keep the conversation with him positive and age-appropriate; and
·[X] spend time with Mr Hatch each day of the second half of the school holidays commencing from 6 October 2018 from 9am until 5pm, and thereafter on each alternate weekend on Saturday and Sunday from 9am until 5pm.
On that basis, can Mr Hatch please reply to this letter by 4pm tomorrow and confirm:
·his willingness to communicate with [the Institute of Specialist Dispute Resolution] and commence the mediation process; and
·his intention to spend time in communicate with [X] in accordance with the above arrangements?
I note that the mother attaches a letter from the husband’s then legal representatives dated 2 October 2018 purporting to respond to her email letter (again see Exhibit “B” to her affidavit). Their response letter inter alia simply notes that the mother has not communicated her consent to allow the father to collect the child on 6 October 2018 (in order to spend time during the relevant school holidays). I note that the response letter does not refute the allegations raised by the mother and nor does it respond to the issue of mediation.
Finding
Following a consideration of the available evidence and the relevant the circumstances, I am satisfied that the mother is reasonably excused from her non-performance of the final orders on this particular occasion. I am satisfied that the mother was genuine in her expressed concerns and I note that she was agreeable to participate in mediation in an effort to resolve those concerns. The mother also proposed alternate spend time and communication outcomes as an interim measure.
I find accordingly.
Count 3
Discussion
This count alleges a breach of paragraph 3.2 of the final orders on the weekend commencing on 3 November 2018 which the mother admits. This particular contravention occurred two weeks after the last relevant contravention.
In response, the mother gives evidence of the events she asserts occurred in the lead up to this particular contravention.[28] The mother states that on 22 October 2018 she received a visit without notice from two FaCS caseworkers who advised her that during the weekend of 20–21 October 2018 the father had been charged with a mid-range drink-driving offence. The Court notes that the father admits that on or around 21 October 2018 he was charged with a mid-range drink-driving offence. For abundant clarity, I state that I am satisfied that it is relevant for the Court to consider that particular entry of the material produced under subpoena by the NSW Police. The mother goes on to give evidence that she permitted the child to be interviewed by FaCS in her absence on 24 October 2018 (and I note that there is evidence in the subpoenaed material that this interview with the child proceeded on that date). The mother then goes on to assert that she had a further conversation with a FaCS officer on 26 October 2018 who allegedly informed her inter alia that they would request the father to attend their office for an interview.
[28] Mother's affidavit filed 4 February 2019, paragraphs 66-67.
During the course of the hearing, Mr Frost asserted, and Mr Campton confirmed, that the father had been sentenced in relation to a drink driving offence the previous day (i.e. 13 February 2019). Mr Campton advised that the father was disqualified from driving for six months and was fined $1,000. The father is also required to use an interlock device for a 24 month period once he is eligible to drive again. Mr Campton also confirmed that the father’s mid-range reading was 0.1.[29]
[29] Transcript, 14 February 2019, pages 33-34.
Unlike the previous occasions, neither party provides evidence of any letters or emails exchanged between them prior to the weekend that is the subject of this particular contravention.
Finding
Following a consideration of the available evidence and the relevant the circumstances, I am satisfied that the mother is reasonably excused from her non-performance of the final orders on this particular occasion.
I find accordingly.
Count 4
Discussion
This count alleges a breach of paragraph 3.2 of the final orders on the weekend commencing on 17 November 2018 which the mother admits. This particular contravention also occurred two weeks after the last relevant contravention.
The father gives evidence in paragraph 7.9 of his affidavit that he attended the child’s school at approximately 3:00pm on Monday, 12 November 2018 and was advised by school staff that the mother had collected the child earlier that day, prior to the conclusion of school. The father also gives evidence at paragraph 7.7 of his affidavit that:
… At approximately 9:20am on Sunday, 11 November 2018 my solicitors sent a letter to Ms Vining which contained the following statements:
a.As discussed earlier in this letter, your email dated 21 September 2018 stated:
I am requesting that you agreed to pause your overnight contact with [X] until these issues are addressed and attend legally assisted mediation to address them.
b.Pursuant to the orders, [X] is to spend time with Mr Hatch for two (2) hours after school once per week, with Mr Hatch to nominate that date by the Sunday beforehand. Mr Hatch nominates to spend time with [X] from the conclusion of school on Monday, 12 November 2018. Mr Hatch will deliver [X] to your residence two (2) hours later in accordance with the orders. For the avoidance of doubt, Mr Hatch will reiterate this nomination himself today.
c.There is no immediate risk with [X] spending time with his father on Monday pursuant to the orders. On your own case, you only seek to suspend overnight time, leaving [X]’s day time with his father intact.
It is not clear from the evidence whether this letter was read by the mother on the Sunday or the following day. That said, the mother acknowledges in her affidavit (discussed below) that she received a letter on 12 November 2018.
In response, the mother gives evidence of the events she asserts occurred in the lead up to this particular contravention.[30] As stated above, the mother gives evidence that on 12 November 2018 she received a letter from the new firm of lawyers acting on behalf of the father. She states that she engaged solicitors and instructed them to write to the father’s new solicitors on 13 November 2018 and again on 23 November 2018 (and she attaches the relevant correspondence to her affidavit at Annexure “C”).
[30] Mother's affidavit filed 4 February 2019, paragraph 68.
I note that in the letter dated 13 November 2018:
·the mother (through her lawyer) reiterates the concerns she alleged in her email to the father dated 21 September 2018 as to the father’s abuse of alcohol and associated aggression;
·the mother particular arises her concerns in relation to a large number of matters including:
1. [X] regularly reporting Mr Hatch becoming extremely intoxicated my [X] is in his care, including to the point of smashing glass spear models, being unable to remember events, engaging in strange and upsetting behaviours towards [X], engaging in road rage incidents, and becoming angry, threatening physically aggressive towards [X];
2. Mr Hatch transporting [X] in his car while apparently intoxicated;
·the mother invites the father to participate in family dispute resolution to discuss these concerns and to identify pathway forward for the family;
·the mother advises that on 22 October 2018 the mother was visited by two caseworkers from FaCS and provides details of what occurred including the information she received from them about the father being charged with another mid-range drink-driving offence on 20–21 October 2018;
·the mother indicates that she continues to hold significant concerns in relation to the child’s safety and well-being, particularly arising from the effects on the child of being repeatedly exposed to the father’s excessive drinking, and to the behaviours that the father exhibits while drinking which the child has described to the mother in which the mother has also observed;
·the mother thereafter proposes the following and seeks the father’s response:
1. That your client confirm his agreement that he will not attempt to collect [X] from school or any other venue until such time as an agreement has been reached between the parents;
2. That your client obtain a referral for treatment and support for alcohol abuse, undertake the treatment and support, and provide proof of doing so to my client;
3. That your client enrol in and complete the following courses offered by Relationships Australia, contactable on …, and provide proof of doing so to my client:
a. Taking Responsibility, a men’s behaviour change program; and
b. Circle of Security, a course designed to assist parents to build strong and secure relationships with their children;
4. That [X] spend time with your client for up to 3 hours each week supervised by Connecting Families (contactable on …) or such other similar professional supervision service as agreed between the parents, until:
a. Mr Hatch is receiving effective treatment for alcohol use;
b. Mr Hatch completes Taking Responsibility and Circle of Security, and
c. Ms Vining can be assured of [X]’s safety during the time he spends with your client.
Can you please obtain your client’s urgent instructions by reply by 5pm Thursday letting me know whether he agrees to the above proposals?
I look forward to hearing from you.
I note that in the letter dated 23 November 2018 (discussed further below), the mother’s lawyer indicates that she does “not yet seem to have received a reply” to their letter dated 13 November 2018. The father does refer to that letter in paragraph 7.10 of his affidavit.
Finding
Following a consideration of the available evidence and the relevant the circumstances, I am satisfied that the mother is reasonably excused from her non-performance of the final orders on this particular occasion. As stated, the evidence is not clear as to whether the father’s solicitor’s letter dated 11 November 2018 was received before or after the alleged contravention on 12 November 2018. Regardless, I am satisfied that the fears expressed by the mother in relation to the child safety given the father’s alcohol misuse were genuine.
I find accordingly.
Count 5
Discussion
This count alleges a breach of paragraph 3.2 of the final orders on the weekend commencing on 1 December 2018 which the mother admits. This particular contravention occurred nearly three weeks after the last relevant contravention.
As stated above, the mother states that she engaged solicitors and instructed them to write to the father’s new solicitors on 13 November 2018 and again on 23 November 2018.
I note again that in the letter dated 23 November 2018 the mother’s lawyer indicates that she does “not yet seem to have received a reply” to their letter dated 13 November 2018. I also note that the mother’s lawyer confirms that the mother is willing to attend family dispute resolution with the father but raises the following concerns:
Ms Vining has spoken with staff from the Mr Hatch’s nominated service and I am structured that, as the mediator is located in Brisbane, the intention is that the mediation will take place via Skype. This seems to be less optimal than a process in which both parents, their legal advisers and the mediator are present in person.
In relation to costs, my client understands that the Skype mediation often by Brisbane Mediations will cost approximately $1350 per person, which fee unfortunately unachievable for her. This is in contrast to the family dispute resolution process offered by the Institute of Specialist Dispute Resolution (ISDR) with whom my client initiated mediation in September 2018, and which I am instructed was to be conducted at a cost of $660 per person.
The mother’s lawyer then goes on to propose three alternative family dispute resolution providers located in Sydney for consideration and then states the following:
… That, in the event that your client is not willing to attend mediation with any of the above services, your client pay on Ms Vining’s behalf the balance between the fee set by ISDR and that set by Brisbane Mediations, and thereafter the parents attend family dispute resolution with that service as soon as possible.
Can you please obtain instructions from a client and let me have his response to these proposals, and to those outlined in our correspondence of 13 November 2018, as soon as possible, and in any event within seven days?[31]
[31] I note that “seven days” would mean by 30 November 2018 which is the day before the relevant contravention.
The father does not refer to this evidence in his affidavit. I also note that there is no evidence of any specific response from the father or his solicitors to the letters dated 13 November 2018 and 23 November 2018.
Finding
Following a consideration of the available evidence and the relevant circumstances, I am satisfied that the mother is reasonably excused from her non-performance of the final orders on this particular occasion. Inter alia it is clear that the parties had intended to engage in mediation in an attempt to resolve the mother’s expressed concerns.
I find accordingly.
Count 6
Discussion
This count alleges a breach of paragraph 4.2 of the final orders on the weekend commencing on … 2018 (the father’s birthday) which the mother admits. This particular contravention occurred two weeks after the first contravention.
As stated in relation to Count 2 above, the mother gives evidence:
·that she caused an email to be sent to the father’s then lawyer on 2 October 2018 in response to their letter dated 28 September 2018 – in that letter the mother outlines what she describes as a “non-exhaustive” list of matters of concern to explain that she believes that she has a reasonable excuse for not complying with the final orders. The mother then goes on to propose inter alia mediation and that in the short term the child spent day only periods with the father; and
·about a conversation between the parties that occurred on 6 October 2018 which is a Saturday two weeks after the Count 1 contravention.[32] As stated, the conversation took place in a church and in the presence of the child and is detailed at paragraph 60 of the mother’s affidavit. It would appear that the parties discussed the previous contravention, the mother’s allegations, the father’s response and the likelihood of further legal proceedings.
[32] Mother's affidavit filed 4 February 2019, paragraphs 60-64.
Finding
Following a consideration of the available evidence and the relevant the circumstances, I am satisfied that the mother is reasonably excused from her non-performance of the final orders on this particular occasion. The mother’s evidence of the concerning conversation that took place between the parties that day was not challenged by the father. I am satisfied that the mother’s concerns that day were genuine.
I find accordingly.
Count 7
Discussion
This count alleges a breach of paragraph 5 of the final orders on the same weekend as Count 6 which the mother admits. I note that the father’s birthday coincided with the second relevant Saturday of the Term 3 school holidays in 2018.
I have referred to the available evidence relevant to what occurred between the parties on 6 October 2018 in Counts 2 and 6 above.
Finding
Following a consideration of the available evidence and the relevant the circumstances, I am satisfied that the mother is reasonably excused from her non-performance of the final orders on this particular occasion. As stated above, the mother’s evidence of the concerning conversation that took place between the parties that day was not challenged by the father. As previously stated, I am satisfied that the mother’s concerns that day were genuine.
I find accordingly.
Count 8
Discussion
This count alleges a breach of paragraph 8 of the final orders on Wednesday 19 September 2018 which the mother admits. This particular contravention occurred just prior to the Count 1 contravention.
In paragraph 8.1 of the father’s affidavit he states:
Until recently, my telephone communication with [X] was facilitated by me calling Ms Vining’s telephone number. I attempted to call Ms Vining’s telephone number at approximately 6:00pm on 19 September 2018, 20 September 2018 and 21 September 2018. I have not received a return call facilitating communication with [X] since then.
In the following paragraph (paragraph 8.2) the father states:
At approximately 5:04pm on 5 October 2018 I received an email from Ms Vining which contain the following statement:
If a Parenting Plan in those terms are sent to me by Mr Hatch, I will facilitate [X]’s time with Mr Hatch as previously offered.
It is not entirely clear whether these paragraphs are interlinked. The father gives no further evidence relevant to the alleged telephone calls.
That all said, the mother admits the contravention of the relevant order.
The mother does not specifically address the issue of non-compliance with the telephone communication order on the relevant dates for Counts 8, 9 and 10 (19, 20 and 21 September 2018) in her affidavit. That said, the mother gives evidence about what occurred on 19 September 2018 in her affidavit which I referred to in Count 1 above. In addition, I note that at paragraph 74 of her affidavit the mother states as follows:
Mr Hatch and [X] have spoken to each other by telephone and Facetime roughly twice a week over the last couple of months. These conversations seem to go mostly ok, although [X] still tells me afterwards things like, “Dad wanted to know why I couldn’t come to his place when I said we weren’t doing anything today”.
As stated, I considered the mother’s evidence as to the events on, and shortly after, 19 September 2018 in my discussion relevant to Count 1. The mother acknowledges sending a text to the father on 18 September 2018 (in response to the father’s request to have the child spend time with him in the forthcoming weekend) as follows:
“hey Fri and say won’t work but I can rearrange some things so you can have all day Sunday.”
It is not clear from the evidence whether the father’s letter dated 19 September 2018 (and read by the mother that day) was sent before or after the attempted phone call. It is noteworthy that the letter makes no reference to any attempted phone call made that day or any non-refusal to facilitate communication time. I note again that following receipt of the father’s letter the mother formed the view that it would not be safe the child to spend overnight time with the father that weekend.
Findings
While the intention of paragraph 8 of the final orders is clear, it appears that communication time had been occurring but not necessarily in accordance with the final orders. If it was the failed call that was a catalyst to the father’s letter dated 19 September 2018 then the Court could understand the father’s annoyance. However, as I have stated, it is equally possible that the attempted telephone call occurred after the father had forwarded the letter. Given this uncertainty, and the Court’s findings that the mother held genuine fears for the safety of the child that were not unreasonable, I am satisfied that the mother is reasonably excused from her non-performance of the final orders on this particular occasion.
I find accordingly.
Count 9
Discussion
This count alleges a breach of paragraph 8 of the final orders on Thursday 20 September 2018 which the mother admits. This particular contravention occurred the day after the Count 8 contravention and just prior to the Count 1 contravention.
The father’s evidence is discussed above in relation to Count 8.
Similarly, the mother’s evidence is discussed above in relation to Count 8.
Findings
While I have already stated that the intention of paragraph 8 of the final orders is clear, I reiterate that communication time had been occurring but not necessarily in accordance with the final orders. Given the Court’s findings that the mother held genuine fears for the safety of the child that were not unreasonable (and relevant to the weekend commencing 21 September 2018), I am satisfied that the mother is reasonably excused from her non-performance of the final orders on this particular occasion.
I find accordingly.
Count 10
Discussion
This count alleges a breach of paragraph 8 of the final orders on Friday 21 September 2018 which the mother admits. This particular contravention occurred the day after the Count 9 contravention, two days after the Count 8 contravention and just prior to the Count 1 contravention.
The father’s evidence was discussed above in relation to Count 8.
Similarly, the mother’s evidence is discussed above in relation to Count 8. In addition, I note that in her email forwarded to the father on 21 September 2018 the mother (see Annexure “B” to her affidavit) states inter alia:
In regards to phone contact with [X], I will ask him to call you after school today, provided you agree to refrain from discussing with him any of the contact arrangements in question, from using any negative or derogatory or accusatory comments about me and to keep your conversation with him positive and age-appropriate.
Please confirm your agreement in writing …
I note that the father sends the following email in response:
Ms Vining,
Your accusations are outrageous and unfounded and not based on any evidence.
You have accused me of:
your [sic] drinking and drink-driving:
Please provide evidence of when this has occurred in the last 4 years;
aggressive behaviours:
Please provide details and evidence of your accusations
Inappropriate supervision:
Please provide details and evidence of this accusation;
lack of child-focused and age-appropriate parenting:
Please provide details of evidence of your accusations
I consider your behaviours to be in bad faith and detrimental to [X] and his best interests.
You have no right to place any conditions on what I say or do not say to my son.
You are in breach of the consent orders and are acting unlawfully. I remind you that you’re acting against the court ordered arrangements.
You must allow [X] to call me ASAP.
I do not agree to seeing him without overnight rights. Your proposal is ridiculous and offensive.
Sent from my iPhone
I also note that the mother caused the following email to be sent to the father on Tuesday 25 September 2018 (further noting that is after the date of the relevant contravention):
Dear Mr Hatch,
I’d like to facilitate your regular phone contact with [X], provided that you can ensure that it is a safe and positive experience for our son.
Due to my concerns, based on previous incidents, when you’ve used the phone calls with him to say negative things about me and/or to me and involve [X] in distressing discussions, please agree to refrain from discussing with him anything relating to contact arrangements, from using any negative or derogatory or accusatory comments relating to me, from speaking directly to me and to keep your conversations age-appropriate.
If you’re willing to promise this, please confirm, so that we can arrange a suitable time.
Regards,
Ms Vining
Findings
Again, while I have stated that the intention of paragraph 8 of the final orders is clear, I reiterate that communication time had been occurring but not necessarily in accordance with the final orders. Given the Court’s findings that the mother held genuine fears for the safety of the child that were not unreasonable (and relevant to the weekend commencing 22-23 September 2018), and given the additional evidence referred to above, I am satisfied that the mother is reasonably excused from her non-performance of the final orders on this particular occasion.
I find accordingly.
Formal finding summary
Formally, I find that the alleged contraventions of the relevant final orders occurred. I note that the mother admitted all 10 counts as alleged.
Applying an objective test, I am satisfied and find that the mother’s excuses for all the contraventions of the relevant interim Orders are reasonable in light of the evidence.
Conclusion
The Court’s findings are as stated above. While the Court has found that the mother contravened the final orders as alleged by the father in his application, the Court has also found that the mother has established a reasonable excuse in relation to each of the 10 counts.
The Court will list the matter to a date to be fixed to hear further submissions relevant to the outcome of this decision.
There will now be orders of the Court to reflect this decision.
I certify that the preceding one hundred and seventy-three (173) paragraphs are a true copy of the reasons for judgment of Judge Monahan
Date: 21 June 2019
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