Hayes & Stapleton
[2015] FCCA 1948
•17 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HAYES & STAPLETON | [2015] FCCA 1948 |
| Catchwords: FAMILY LAW – Children – contravention of parenting orders – consequential orders – less serious contravention – whether any previous contravention of primary order – whether respondent behaved in a way that showed a serious disregard for her obligations under the primary order – where Subdivision E of Division 13A of Family Law Act 1975 (Cth) applied – imposition of bond. PRACTICE AND PROCEDURE – Delay – discretion to refuse relief – unwarrantable and poorly explained delay – where subject matter of contravention trivial – discretionary refusal to impose a sanction. COSTS – Whether an order for costs should be made against either party – where applicant unrepresented – where respondent represented for part of the proceedings – where neither party in receipt of legal aid – conduct of the proceedings by the parties considered – where proceedings necessitated by the failure of a party to comply with previous orders – where neither party wholly unsuccessful. PRACTICE AND PROCEDURE – Multiple contraventions alleged – duplicity – abuse of court process – where application brought in respect of contraventions alleged to have taken place more than 12 months prior to the institution of proceedings – amendment to the Family Law Act 1975 recommended providing for a limitation period. |
| Legislation: Family Law Act 1975 (Cth), ss.44, 64B, 70NAA, 70NAC, 70NAE, 70NAF, 70NEA, 70NEB, 70NEC, 70NFB, 70NFG, 117 |
| Cases cited: Hayes & Stapleton [2014] FCCA 1692 R v Australian Broadcasting Tribunal; Ex parte Fowler (1980) 31 ALR 565 Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491 Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725 S58 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 |
| Applicant: | MR HAYES |
| Respondent: | MS STAPLETON |
| File Number: | SYC 2750 of 2007 |
| Judgment of: | Judge Scarlett |
| Hearing dates: | 2-3 December 2014 |
| Date of Last Submission: | 3 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 17 August 2015 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person (formerly Ms Swan) |
| Solicitors for the Respondent: | (formerly KWS Legal) |
ORDERS
The Respondent mother did on 24 November 2012 without reasonable excuse contravene Order 5 made on 25 May 2009 by calling the children X born (omitted) 2000 and Y born (omitted) 2001 away from the Applicant and spending time with the children at a time that was not provided by the said Order as a time when the said children were to spend time with the Respondent.
The Respondent mother did on 26 November 2012 without reasonable excuse contravene Order 5 made on 25 May 2009 by calling the said children X and Y away from the Applicant and spending time with the children at a time that was not provided by the said Order as a time when the said children were to spend time with the Respondent.
Count 9 of the first Application – Contravention filed on 13 February 2014 alleging a contravention by the Respondent on 2 April 2013 of Order 5 made on 25 May 2009 is dismissed.
Count 10 of the first Application – Contravention filed on 13 February 2014 alleging a contravention by the Respondent on 7 June 2013 of Order 5 made on 25 May 2009 is dismissed.
Count 12 of the first Application – Contravention filed on 13 February 2014 alleging a contravention by the Respondent on 1 August 2013 of Order 5 made on 25 May 2009 is dismissed.
Count 15 of the first Application – Contravention filed on 13 February 2014 alleging a contravention by the Respondent on 9 August 2013 of Order 5 made on 25 May 2009 is dismissed.
Count 17 of the first Application – Contravention filed on 13 February 2014 alleging a contravention by the Respondent on 19 August 2013 of Order 5 made on 25 May 2009 is dismissed.
Count 18 of the first Application – Contravention filed on 13 February 2014 alleging a contravention by the Respondent on 21 August 2013 of Order 5 made on 25 May 2009 is dismissed.
The Respondent mother did on 31 August 2013 without reasonable excuse contravene Order 5 made on 25 May 2009 by coaxing the child Y to sit with her instead of the Applicant and thereby spending time with the child at a time that was not provided by the said Order.
Count 22 of the first Application – Contravention filed on 13 February 2013 alleging a contravention by the Respondent on 2 September 2013 of Order 5 made on 25 May 2009 is dismissed.
The Respondent did on 23 January 2014 without reasonable excuse contravene Order 5 made on 25 May 2009 by failing to return the said children X and Y to the care of the father and thereby spending time with the children for more than half of the Christmas School holidays 2013-2014.
Count 1 of the third Application - Contravention filed on 13 February 2014 alleging a contravention by the Respondent on 1 August 2013 of Order 2 made on 25 May 2009 is dismissed.
The Respondent has established a reasonable excuse for contravening on 1 August 2013 Order 5 made on 25 May 2009.
The Respondent did on 2 March 2014 without reasonable excuse contravene Order 5 made on 25 May 2009 in that she failed to return the children X and Y to the care of the father or his nominee by 5:00pm on that day.
The Court makes no order in respect of the contraventions found in Orders (1) and (2) above.
In respect of the contraventions found in Orders (9), (11) and (14) above, the Respondent is required to enter into a bond in accordance with section 70NEC of the Family Law Act 1975 for a period of eighteen (18) months, upon the following conditions:
(a)to be of good behaviour; and
(b)to comply with the requirements of the Orders made on 25 May 2009.
The Court makes no order for costs.
IT IS NOTED that publication of this judgment under the pseudonym Hayes & Stapleton is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 2750 of 2007
| MR HAYES |
Applicant
And
| MS STAPLETON |
Respondent
REASONS FOR JUDGMENT
Application
On 30 July 2014, the Court dismissed 17 separate counts alleging contraventions of Orders made by the Family Court on 25 May 2009 on the basis that either there was no case to answer (15 counts) or that the Application was incompetent (2 counts) (Hayes & Stapleton[1]). The Applicant father brought four separate Applications, three of which were filed on 13 February 2014, and one filed on 5 March 2014, alleging a total of 31 contraventions of the Orders over a period from 24 November 2012. The Applicant was found to have made out a case for the Respondent mother to answer in respect of the remaining 14 counts.
[1] [2014] FCCA 1692
The Applications were adjourned to 2 December 2014 for further hearing and submissions were taken the following day.
The Respondent denies intentionally breaching the orders and, in the alternative, claims that if she did so she had a reasonable excuse.
The Remaining Allegations
Those counts where the Court found that the Respondent had a case to answer are set out in the following paragraphs. They are Counts 1, 2, 9, 10, 12, 15, 17, 18, 21 and 22 of the first Application, Count 3 of the second Application, Counts 1 and 2 of the third Application and the one Count contained in the fourth Application.
Count 1 claims that on 24 November 2012 the Respondent contravened Order 5 made on 25 May 2009 in that “Mother attends the (omitted) and sits with the children and calls them away from our group. It is not a contact period”.
Count 2 claims that on 26 November 2012 the Respondent contravened Order 5 between 5:00 pm and 6:00 pm in that “Mother attends at children’s (hobby omitted) training session at (omitted) School from 5:00 pm to 6:00 pm and calls the children over during breaks from playing. It is not a contact period”.
Count 9 claims that on 2 April 2013 the Respondent contravened Order 5 between 4:00 and 5:00 pm in that “Mother attends the (hobby omitted) meeting on the ovals while Ms R, the coach, speaks to the girls. I go over with the girls and Ms J takes photographs of the mother and the car parked up the street. It is not a contact period as provided by the Orders”.
Count 10 claims that on 7 June 2013 the Respondent contravened Order 5 between 9:00am and 2:00 pm in that “I take X and another 4 students to (hobby omitted) in Lismore and the Mother attends and has contact without asking. It is not a contact period as provided by the Orders”.
Count 12 claims that on 1 August 2013 between 10:00 am and 1:00 pm the Respondent contravened Order 5 in that “While I was at (omitted) Hospital the mother advises that she has spent the day with Y at the (hobby omitted) carnival at (omitted), and I advise her that this is not her contact time and she should abide by the Orders”.
Count 15 claims that on 9 August 2013 at (omitted) Public School at approximately 7:00 pm the Respondent contravened Order 5 in that “the Mother attends at (omitted) Public School when the bus returns from the School's (omitted) Excursion and has contact with Y. It is not a contact time as provided by the Orders”.
Count 17 claims that between 9:30 am and 1:00 pm on 19 August 2013 at (omitted) Sports Stadium the mother contravened Order 5 in that “Mother turns up at Y's (hobby omitted) Carnival at the (omitted) Sports Stadium and comes and sits with only Y between us. I feel threatened and it is not a contact time as provided by the Orders”.
Count 18 claims that on 21 August 2013 in (omitted) at (omitted) at 3:45 pm the Respondent contravened Order 5 in that “Mother is in (omitted) and has parked outside library and walked across to (omitted) where Y walks home and is sitting with Y in (omitted) at the back of the library. It is a non-contact time”.
Count 21 claims that on 31 August 2013 between 9:00 am and 12:00pm at (omitted hobby) the Respondent contravened Order 5 in that “(omitted hobby) semi-finals day and Mother attends and has contact with both X and Y. It is not a contact period as provided by the Orders.”
Count 22 claims that on 2 September 2013 between 5:00 and 6:00pm at (omitted) School the Respondent contravened Order 5 in that “I take the girls to (hobby omitted) at 5:00 pm and the Mother’s car is outside and when I return at 5:50 pm to collect the girl(s), the Mother is at the sideline and having contact! It is not contact time as provided by the Orders”.
The above counts are all contained in the first Application filed on 13 February 2014. There is only one count in the second Application, namely Count 3, as Counts 1 and 2 were dismissed on 30 July 2014 (Hayes & Stapleton[2]).
[2] [2014] FCCA 1692
Count 3 of the second Application claims that on 23 January 2014 at Midday at Interrelate Children's Contact Centre (omitted) the Respondent contravened Order 5 in that “The Mother does not return the Children as agreed between the parties and has contact for more than half of the Christmas School Holidays, 2013-14”.
There are two allegations in the third Application filed on 13 February 2014. Count 1 of the third Application claims that in the afternoon of 1 August 2013 the Respondent contravened Order 2 made on 25 May 2009 at (omitted) and (omitted) in that “The Mother without any responsibility, removed my daughter Y from the care of the (omitted) Public School staff and transferred her by private car to (omitted) Hospital and submitted her for medical examination”.
The second Count in that Application claims that on 1 August 2013 between the hours of 9:00 am and 4:00 pm at (omitted) Sports Ground and (omitted) Hospital the Respondent contravened Order 5 made on 25 May 2009 in that “The Mother attended an (hobby omitted) Carnival at (omitted) Sports Ground and had contact with Y and them removed her from the care of the (omitted) Public School staff and took her by private car to (omitted) Hospital. This was not during a contact period as per the Orders of the Honourable Justice Moore given 25th May 2009”.
The fourth Application contains only the one Count, claiming that on 2 March 2014 at 5:00 pm at (omitted) Railway Station in Sydney the Respondent contravened Order 5(A)(b) in that “The Mother does not comply with ‘the mother or her nominee to return the children to the father or his nominee at 5pm on the Sunday’”.
Evidence and Submissions
The Applicant’s evidence has been set out in some detail in the earlier decision at paragraphs [22] to [129] and it is not necessary to repeat it here.
The Respondent’s evidence is that she has not intentionally breached the Court Orders and that she has followed the legal advice that she has been given. The Respondent conceded that she did contravene the Orders about contact but that she had a reasonable excuse for doing so, in that she took the child Y to hospital for examination when the child injured her back at the sports carnival.
The Respondent said that on occasions she had met the children by chance but did not believe that she was precluded by the Orders from seeing or speaking to them on those occasions.
As to her failure to return the children to the care of the father on 23 January 2014, the Respondent claims that there had been a verbal agreement between the Applicant and herself that the children need not be returned until 27 January. Although there was a written agreement between her and the Applicant, the Respondent claimed that it had been signed under duress.
As to the Applicant’s claim that she had contravened the Order by not returning the children to the Applicant at (omitted) Railway Station on 2 March 2014, the Respondent claimed that she was prevented from doing so by the fact that her car had broken down at (omitted), New South Wales, a little earlier.
The Respondent submitted that Order 5 made on 25 May 2009 did not prohibit her from seeing the children at times other than specified in the Orders.
The Respondent also submitted that it was inappropriate for the Applicant to bring an Application complaining about matters said to have taken place as long ago as November 2012, when it was difficult for her to remember the circumstances so long ago.
The Applicant submitted that he commenced these proceedings “in the belief that the mother was going beyond the limits set by her Honour Justice Moore. The Father similarly believes that the Mother’s views and attitudes are not in the best interests of the children…to that end the Father is not prepared to extend the contact with the Mother as he believes that it is not in the best interests of the children to be exposed to these attitudes and that they undermine his relationship and that of other members of his family with the children…In fact the Father believes given the Mother’s failure to change her views, seek mental health counselling and the propagation of new discrediting material that the current contact between the Mother and the children is not in their best interest and that contact between the Mother and the children should be supervised and restricted to a contact centre”.[3]
[3] Applicant’s written submissions 3.12.2014 pages 1 and 2
The Applicant also submitted that “there have been previous contraventions found against the Mother”[4]. During the hearing the Applicant submitted that the Court should consider the imposition on the Respondent of a period of imprisonment.
[4] Ibid page 5
Conclusions
Section 70NAA of the Family Law Act 1975 (Cth) sets out at subsection (1) an outline of Division 13A of the Act:
This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.
Section 70NAF provides that the standard of proof to be applied is proof on the balance of probabilities. This standard also applies to the determination of whether a person had a reasonable excuse for a contravention of an order.
Thus, each of the allegations must be scrutinised to determine whether the Court can be satisfied on the balance of probabilities that the contravention has been made out.
Most (indeed, all but one) of the contraventions alleged by the Applicant are contraventions of Order 5 made on 25 May 2009. Order 5 states:
Upon the completion of the three month period referred to in 4 the children spend time with the mother as follows:
(A) during school terms:
(a) for two weekends each term [the 2nd and 8th unless otherwise agreed] in the (omitted)/(omitted) area, the mother or her nominee to collect the children from school on Friday at the commencement of the period and to return them to school on Monday at the conclusion of the period;
(b) for one weekend [the 5th unless otherwise agreed] in the Sydney Metropolitan area, the mother or her nominee to collect the children from the father or his nominee at 9am Saturday from (omitted) Railway Station and the mother or her nominee to return the children to the father or his nominee at 5pm on the Sunday.
(B) during school holidays:
(c) for the holidays at the end of the 1st and 3rd terms from the last day of school to the final Wednesday of those holidays, the mother or her nominee to collect the children from school at the commencement of the period and the father or his nominee to collect them from the Interrelate Contact Centre at (omitted) or other agreed venue at the conclusion of the period;
(d) for one half of the holidays at the end of the 2nd term and during the December/January school holiday period, at times to be agreed and failing agreement:
(i) for the first half in years ending in an even number, the mother or her nominee to collect the children from school at the commencement of her time with the children and the father or his nominee to collect the children from the Interrelate Contact Centre at (omitted) or other agreed venue at the conclusion of the period;
(ii) for the second half in years ending in an odd number, the mother or her nominee to collect the children from the Contact Centre at (omitted) or other agreed venue at the commencement of the period and the father or his nominee to collect the children from the Interrelate Contact Centre at (omitted) or other agreed venue at the conclusion of the period;
(C) at other times:
(e) if the mother is in the (omitted)/(omitted) area and not otherwise spending time with the children according to these orders, for three hours with both children on each of the children’s birthday(s) at times agreed and failing agreement from after school until 7pm if it falls on a school day and from 3pm to 7pm if not on a school day;
(f) at other times agreed between the parents in writing.
It can be seen that the Order sets out the times when the Respondent mother is to spend time with the children on weekends, during school holidays and on other occasions.
Parenting Orders are defined by s.64B of the Family Law Act 1975, and include, in subsection (2):
(a) the person or persons with whom a child is to live;
(b) the time a child is to spend with another person or other persons;
…
(e) the communication a child is to have with another person or other persons;
Order 5 is couched in positive terms. It does not contain any injunction or prohibition on the Respondent spending time with the children or either of them at any other time. The Order sets out the times when the Respondent is to spend time with the children, but there is no implied prohibition on the Respondent seeing or speaking to the children at other times.
It appears clear that if the Respondent were to spend time with either or both of the children outside the times specified by the Order, it would only constitute a contravention if that time were to hinder or prevent the children from living with or spending time with the Applicant.
Turning now to Count 1 in the first Application, where it is claimed by the Applicant that on 24 November 2012 at the (omitted) the mother sat with the children and called them away from the Applicant’s group. The circumstances are such that it must follow that if the children were “called away” from the Applicant’s “group”, they were not for that period of time spending time with the Applicant. This would therefore constitute a contravention of the Order, although a relatively minor one. The Respondent has not established a reasonable excuse.
The second count in the Application relates to an incident on 26 November 2012 where the Respondent is said to have attended the children’s (hobby omitted) training at (omitted) Public School and called the children over during breaks from playing. Again, it would appear from the evidence that the Applicant was present, as he observed this incident or these incidents, and it follows that the children therefore spent time with the mother and not with him. The contravention is established. The Respondent has not established a reasonable excuse.
Count 9 of the Application relates to the Respondent attending a (hobby omitted) meeting at (omitted) Sports Ovals on 2 April 2013 while the coach was speaking to the girls. The Applicant’s partner, Ms J, took photographs of the mother and her car parked up the street. I stated at paragraph [51] of the earlier decision[5] that it would be a matter for submissions as to whether the Respondent’s attendance could be classified as “spending time with” the children. In my view this does not constitute spending time with the children in breach of the Order and this count will be dismissed.
[5] Hayes & Stapleton [2014] FCCA 1692
Count 10 refers to a situation where the Applicant took the child X and four other students to the Regional (hobby omitted) at (omitted) and the Respondent attended and had contact with the child without asking.
I held in the earlier decision at [53] that it would be a matter for evidence and submission as to whether this constitutes a contravention of the Order. As it does not appear from the evidence that the Respondent’s actions deprived the Applicant from spending any time with the child I am not satisfied that this constitutes a contravention of the Order. This count will be dismissed.
The incident at (omitted) and (omitted) on 1 August 2013
The Applicant has based three separate counts on this one incident. Count 12 of the first application claims that the Respondent contravened Order 5 when she advised the Applicant that she had spent time with the child Y at the (omitted hobby) Carnival. This was an incident where the child apparently injured her back and the Respondent took her to (omitted) Hospital for examination and treatment.
The same incident forms the basis of the two claims in the third Application filed on 13 February 2014, the first of which alleges a contravention of Order 2 made on 25 May 2009 and the second count again alleges a contravention of Order 5. Again, in the earlier decision I stated at paragraph [126]:
In my view, there is a risk that one or other of the counts will be found to be void for duplicity. The facts will not, in my view, support two separate allegations. The Applicant will need to choose which of the two he seeks to pursue, leaving the other one to be argued in the alternative.
The Applicant did not follow this advice.
Thus, there are two counts claiming that the Respondent contravened Order 5 on 1 August 2013 in essentially the same circumstances, and one count claiming that the Respondent contravened Order 2.
Order 2 made on 25 May 2009 provides:
The father is to have sole parental responsibility for the children X and Y born (omitted) 2001.
I am not satisfied that the mother’s actions in attending the sports carnival and taking the child Y to (omitted) for treatment of a suspected back injury in any way constitutes a contravention of Order 2. This count will be dismissed.
There are two counts claiming a contravention of Order 5 that arise out of essentially the same facts, being Count 12 in the first Application and Count 2 in the third Application. The latter is more comprehensive. They cannot stand together. Count 12 of the first Application will be dismissed for duplicity.
It follows that Count 2 of the third Application remains. The Respondent states that she had a reasonable excuse for this contravention.
Reasonable Excuse
Section 70NAE of the Family Law Act 1975 sets out the meaning of the term “reasonable excuse” and contains a non-exhaustive list of examples. Sub-section 70NAE(4) provides that:
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).
In the circumstances, where the mother took the child to hospital at (omitted) for examination and treatment after she had apparently injured her back at a sporting carnival, I am firmly of the view that a reasonable excuse has been established to the requisite evidentiary standard.
Count 15 of the first Application concerns an incident on 9 August 2013 when the Respondent attended at (omitted) Public School when a bus returned from an excursion and the Respondent had contact with the child Y. The Applicant deposed that he had to call the child over to get her bag and take her home.
It does not appear that the Respondent’s actions deprived the Applicant of living with or spending any or any significant time with the child. I am not satisfied on the balance of probabilities that the contravention claimed has been made out and this count will be dismissed.
Count 17 of the first Application relates to an incident on 19 August 2013 where the Respondent attended a (hobby omitted) Carnival at the (omitted) Sports Stadium and sat next to the child Y, when the Applicant was sitting on the other side of the child. I commented in the earlier decision at [80] that it was irrelevant whether or not the Applicant felt threatened, as he claimed.
There is no evidence that the Respondent’s actions deprived the Applicant of living with or spending any time with the child. This count has not been made out and will be dismissed.
Count 18 of the first Application refers to an incident on 21 August 2013 where the Applicant observed the Respondent sitting with the child Y in (omitted) at the back of the library. From the Applicant’s evidence, it appears that he was driving past when he observed the Respondent with the child. The child admitted the incident when she returned, although she initially denied it.
Clearly, the child was not spending time with the Applicant when the incident occurred but was walking home from school when she met the Respondent. This does not constitute a contravention of the Order and this count will be dismissed.
Count 21 of the first Application refers to the Respondent attending the children’s (hobby omitted) semi-finals at (omitted) on 31 August 2013 and having contact with both children. The Applicant’s evidence, taken at its highest, is that the Respondent “coaxed Y to sit with her while X was playing”. This would appear to constitute a contravention of the Order, in that the child was apparently spending time with the Respondent and not the Applicant. It is a trivial contravention, but it has been made out.
Count 22 of the first Application refers to an incident on 2 September 2013 where the Applicant took the two girls to (hobby omitted) at 5:00pm and when he returned at 5:50 pm the Respondent was at the sideline having contact. The Respondent submitted that being on the sideline of the (hobby omitted) court when one or other of the girls was playing (hobby omitted) does not constitute “having contact”.
In the earlier decision at [97] I described the evidence as “neither strong nor particularly convincing”. I adhere to that view and I am not satisfied on the balance of probabilities that a contravention has been made out. This count will be dismissed.
There is one surviving Count in the second Application filed on 13 February 2014 relating to the failure of the Respondent to return the children to the care of the Applicant on 23 January 2014 as agreed and thereby having contact with the children for more than half of the Christmas school holidays in 2013-2014. The Respondent claimed that there had been a separate agreement that the children would not be returned to the care of their father until 27 January, but I am not satisfied that this claim has been made out.
The contravention has been made out on the balance of probabilities.
This leaves the allegation in the fourth Application (the third Application having been dealt with at [42]-[51] above) that the Respondent contravened Order 5 in that she did not return the children to the Applicant at (omitted) Railway Station in Sydney at 5:00 pm on 2 March 2014. It is the Respondent’s evidence that her car broke down at (omitted) which is why she was not able to return the children on time.
However, it is the Applicant’s evidence, which I accept, that the children had not been returned to his care on 4 March 2014. Whilst a delay of a day or a little more may have constituted a reasonable excuse, it appears to me that the delay was too long for a reasonable excuse to be established on the balance of probabilities.
I find the contravention to have been made out.
Consequential Orders
Section 70NEA of the Family Law Act 1975 provides that where the Court is satisfied that a person has committed a contravention of a primary order without a reasonable excuse and no court has previously imposed a sanction in respect of an earlier contravention of the primary order, then the Court may deal with the matter under Subdivision E of Division 13A, unless the Court is satisfied that the person has behaved in a way that showed serious disregard for his or her obligations under the primary order.
The Applicant submitted that “there have been previous contraventions found against the Mother”[6] but I cannot find in the Court file any record of the Court having “made an order imposing a sanction or taking action in respect of a contravention by the person of the primary order” (s. 70NEA(2)(a)). I note that the Applicant commenced contravention proceedings against the Respondent on 4 November 2010 but on 5 December 2011 Sexton FM[7] made this Order:
[6] Applicant’s Submission 3.12.2014 page 5
[7] As Her Honour then was
The Father’s application for contravention filed on 4 November 2010 be dismissed.
I find that no court has made an order imposing a sanction or taken action in respect of a contravention by the Respondent mother of the primary Order, being the Orders made on 25 May 2009.
I must now turn to the requirement of subsection 70NEA(4), which I shall quote in full:
This Subdivision does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.
In order to meet this requirement, the Court must consider the nature of the contraventions found against the Respondent to decide whether the circumstances satisfy the Court that the Respondent has shown a serious disregard for her obligations.
The findings are these:
(1) The Respondent mother did on 24 November 2012 without reasonable excuse contravene Order 5 made on 25 May 2009 by calling the children X born (omitted) 2000 and Y born (omitted) 2001 away from the Applicant and spending time with the children at a time that was not provided by the said Order as a time when the said children were to spend time with the Respondent.
(2) The Respondent mother did on 26 November 2012 without reasonable excuse contravene Order 5 made on 25 May 2009 by calling the said children X and Y away from the Applicant and spending time with the children at a time that was not provided by the said Order as a time when the said children were to spend time with the Respondent.
(9) The Respondent mother did on 31 August 2013 without reasonable excuse contravene Order 5 made on 25 May 2009 by coaxing the child Y to sit with her instead of the Applicant and thereby spending time with the child at a time that was not provided by the said Order.
(11) The Respondent did on 23 January 2014 without reasonable excuse contravene Order 5 made on 25 May 2009 by failing to return the said children X and Y to the care of the father and thereby spending time with the children for more than half of the Christmas School holidays 2013-2014.
(14) The Respondent did on 2 March 2014 without reasonable excuse contravene Order 5 made on 25 May 2009 in that she failed to return the children X and Y to the care of the father or his nominee by 5:00 pm on that day.
The Applicant is clearly of the view that the Respondent has behaved in a way that has shown a serious disregard for her obligations under the primary Order. As he says in his Submission of 3 December 2014:
…given the Mother’s failure to change her views, seek mental health counselling and the propagation of new discrediting material[8]…
But it needs to be remembered that the attitudes expressed by the Mother, and on her behalf by her solicitor, are the ones to which the children will be exposed if the current levels of contact between the children and the Mother are maintained and if the Mother continues to exercise contact by serendipity or in the belief that there are some imagined alternate orders that afford her the contact she seeks.[9]
[8] This “new discrediting material” is apparently a reference to the issues raised by the Respondent in her case, which the Applicant himself described in his Submission of 30 July 2014 as “a rehash of much that was heard before Her Honour Justice Moore in 15 days of hearing and additional days for the written submissions of all parties more than five years ago”.
[9] Applicant’s Submission 3.12.2014 page 2
Whilst the Applicant refers to the Respondent’s failure to seek mental health counselling, there is no requirement for her to do so in the Orders of 25 May 2009.
It can be seen that the only two contraventions found that are of any real substance are those in Orders (11) and (14) above. The contraventions in Orders (1), (2) and (9) can only be described as trivial. It is regrettable that the Applicant did not proceed only with the contraventions found in Orders (11) and (14). In my view, the circumstances of those two findings do not warrant a finding that the Respondent has behaved in a way that showed a serious disregard for her obligations under the primary order.
Consequently, the provisions of Subdivision E of Division 13A apply.
The powers of the Court in Subdivision E are set out in subsection 70NEB(1) of the Act, which provides that the Court may do any or all of the following:
a)direct the person to attend a post-separation parenting program;
b)make a further parenting order that compensates the other person for time he did not spend with the child;
c)adjourn the proceedings to allow a party to apply for a further parenting order;
d)make an order requiring the Respondent to enter into a bond under section 70NEC of the Act;
e)make an order requiring the Respondent to compensate the Applicant for reasonably incurred expenses;
f)make an order for costs against the person; or
g)if the court makes no other orders in relation to the current contravention, order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
I have considered all of these matters.
There is a history of animosity and poor communication between the parties relating back to a lengthy hearing before Her Honour Justice Moore in the Family Court in which serious allegations were made against the Applicant. They were not accepted by the Court, but the Applicant clearly still resents these allegations that were made against him. That is not at all surprising in the circumstances.
The Respondent was represented for part of the proceedings, and the cross-examination of the Applicant by her then solicitor was often irrelevant and unfocused, dealing less with an examination of the evidence supporting the allegations of contravention but were more in the way of a “rehash” of matters that had been previously litigated, as the Applicant submitted, or were otherwise in the way of criticisms of the Applicant’s parenting skills. They were not the issues in this case.
The cross-examination of the Applicant was of very little assistance to the Court except to demonstrate the extent of the animosity between the parties and the poverty of their communication.
However, this does not warrant the imposition of a period of imprisonment on the Respondent, as the Applicant has submitted. The circumstances do not satisfy the Court that the provisions of Subdivision F of Division 13A, relating to a more serious contravention, should apply. Consequently, the imposition of a sentence of imprisonment in accordance with section 70NFG is not available at law (see s.70NFB(2)).
Whether a sanction should be applied at all
It is well established law that a Court has a discretion to withhold relief in cases where there has been unwarrantable delay (R v Australian Broadcasting Tribunal; ex parte Fowler[10] per Barwick CJ, Gibbs, Stephen, Mason and Aickin JJ at 568.5 and 570.3; S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs[11] per Ryan, Merkel and Conti JJ at [8], [11]).
[10] (1980) 31 ALR 565
[11] [2004] FCAFC 283
Unwarrantable delay justifies the withholding of relief (The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd[12] at 400). A delay of more than a year should ordinarily lead to relief being refused in the exercise of the court’s discretion (Re Commonwealth of Australia; Ex parte Marks[13] per McHugh J at 495-496).
[12] (1949) 78 CLR 389
[13] (2000) 177 ALR 491
In S58 of 2003[14] at [8] their Honours approved a decision by the Primary Judge to refuse relief on the ground of the “long and poorly explained delay” and cited with approval this statement at paragraph [21] of the decision at first instance:
Further, I would as a matter of discretion decline, on the ground of the applicant’s long and unsatisfactorily explained delay, to grant any relief to which he might otherwise be entitled.
[14] supra
The Court held at [11] that it was “eminently open to his Honour to characterise the appellant’s delay, as he did in the passage quoted at [8] above, as ‘poorly’ or ‘unsatisfactorily’ explained.
In the current matter, the findings in Orders (1) and (2) refer to contraventions of the primary Order on 24 and 26 November 2012. It was not until 13 February 2014, over one year and two months later, that the Applicant chose to file his Application to deal with those two contraventions.
This is an unwarrantable delay. The Applicant’s explanation of this delay in commencing proceedings was to the effect that he had written to the Respondent to take her to task about these breaches of the Order, but when she persisted in doing so he decided to commence proceedings. This, to my mind, is not a satisfactory explanation.
The Court has power under subsection 70NAA(1) “to make orders to enforce compliance with orders under this Act affecting children”. That is the purpose of division 13A. This purpose cannot be achieved, in my view, by a delay of more than twelve months in commencing proceedings to enforce the Order said to have been contravened.
The Applicant has not provided a satisfactory explanation for this delay. It is also relevant that the two contraventions themselves are so far at the lower end of the scale as to be essentially trivial.
In the circumstances, in the exercise of the Court’s discretion I decline to make an order in respect of the two contraventions found to have been committed on 24 and 26 November 2012.
Having exercised the Court’s discretion not to make those orders, I have considered whether it would be appropriate to make an order that the Applicant pay some or all of the Respondent’s costs, as provided by s.70NEB(1)(g). For the reasons set out below, I am not of the opinion that such an order should be made.
Costs are discretionary, but the Court’s discretion must be guided by the matters set out in subsection 117(2A) of the Act.
There is no evidence of the parties’ financial circumstances, but the applicant is in employment as a (occupation omitted) and has the care and control of the parties’ two teenage daughter. There is no evidence of the Respondent’s financial circumstances, but I note that she is no longer represented, presumably for financial reasons.
Neither party is in receipt of assistance by way of legal aid.
The conduct of the Respondent to the proceedings was unsatisfactory. I have already mentioned the cross-examination, which I found at [79] and [80] to be irrelevant and unfocused and of very little assistance. In addition, as the Applicant correctly submitted, the Respondent was ordered on 28 April 2014 to file and serve any affidavit material upon which she sought to rely within 21 days. When the earlier decision was handed down on 30 July 2014, where the Court found that there was no case to answer in respect of 17 of the Counts, the Respondent, through her solicitor, claimed that she and her client were not ready to proceed. As the Applicant said in his Written Submission of 3 December 2014:
They should have been ready to proceed on all counts![15]
[15] Applicant’s submission 3.12.2014 page 4
Neither party has been wholly unsuccessful in the proceedings.
There is no evidence of any written offer of settlement.
There will be no order for the Applicant to pay some or all of the Respondent’s costs under s.70NEB(1)(g).
Turning to the consequential orders to be made in respect of the three contraventions found in Orders (9), (11) and (14) above, I will consider the matters set out in subparagraph 70NEB(1).
The parties are far and away from being assisted by any post-separation parenting program. Their longstanding mutual hostility and poor communication would make attendance at such a program futile.
There is nothing to indicate a need for a further parenting order to be made to compensate the Applicant for time not spent with the children. The children live with him and their time with the Respondent has been limited by the Orders of the Family Court made on 25 May 2009.
I do not propose to adjourn the proceedings to allow either or both of the parties to the primary Order to apply for a further parenting Order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order. The Applicant submitted that he wishes for there to be an order further restricting the Respondent’s time with the children, including that there should be a requirement for the Respondent’s time to be “supervised and restricted to a contact centre”.[16]
[16] Applicant’s Submission 3 December 2014 page 2
Without taking into consideration the rule in Rice & Asplund[17], which states that where an order has been made in relation to the issues of where a child should live, the Court should not lightly entertain an application to reverse the earlier order, it would not appear to be realistic to require the parties’ two children to spend time with their mother for two hours at a contact centre. These girls are teenagers. X was born on (omitted) 2000; she is about to turn 15. Y was born on (omitted) 2001; she will turn 14 in just over two months’ time. A contact centre is hardly appropriate for girls of their ages.
[17] (1978) 6 Fam LR 570; (1979) FLC 90-725
I any event, the Applicant told the Court that the previous proceedings in the Family Court occupied some 15 hearing days. Anything like a repetition of such a matter would not be heard in this Court, under the protocol that applies between the Courts. It would have to be heard in the Family Court.
I consider that the imposition of a bond under section 70NEC of the Family Law Act 1975 would be appropriate. It would be without surety or security and last for a period of 18 months. Under s.70NEC(2) a bond is to be for a specified period of up to 2 years, so this sanction is in the upper half of the range, and is a reflection of the seriousness of the contraventions found in Orders (9) and (14).
No compensation is sought for any expenses incurred as a result of any of the contraventions.
I have already considered the question of costs at [91] to [98] above. I will make no order for costs for those reasons.
The need for legislative reform
These proceedings brought by the Applicant illustrate why there is a serious concern about the way such applications are brought, particularly by self-represented applicants. The purpose of contravention is to enforce compliance with parenting orders, but this seems to be overlooked by many applicants, who, as in this case, delay bringing an application until they have stored up a large number and then “throw the book” at their former spouse or partner.
In my view, this leads to an abuse of the process of the Court, and is tedious and time-wasting, especially, as in this case, where the Applicant recorded some 31 different complaints over a period of 16 months before bringing his Applications. A total of 17 of them were dismissed at the end of the Applicant’s case, due to the Applicant’s:
a)misconception of the meaning of the order said to be contravened;
b)misconception of what in fact constituted a court order;
c)lack of understanding of the evidentiary requirements to prove a contravention on the balance of probabilities;
d)lack of understanding of the concept of a reasonable excuse;
e)failure or a refusal to differentiate between a contravention of some substance and one that was essentially trivial; or
f)failure to elect not to proceed with one or other claim when warned by the Court of the likelihood of a dismissal on the grounds of duplicity.
Three of the original 31 counts related to alleged contraventions, all very trivial, that were said to have taken place in November and December 2012, more than a year prior to the filing of the Application. They should not have been brought. It is a most ineffective way of enforcing compliance with a parenting order by waiting for more than a year to take action to enforce it.
One of the counts, Count 3 dating from 10 December 2012, was dismissed because there was no case to answer Hayes & Stapleton[18] at [25]-[27] and no order was made in respect of Counts 1 and 2, dating from 24 and 26 November 2012, in the exercise of the Court’s discretions due to the unwarrantable and unsatisfactorily explained delay.
[18] supra
In my view, these three claims were an abuse of the Court’s process. Regrettably, such abuses appear more frequently than they should, especially where litigants are not legally represented. Whilst the Court may decline relief due to unwarrantable delay and such an order may sound in costs, the damage has already been done because these meritless matters have already taken up valuable court time.
In order to prevent such abuses of process unnecessarily taking up the time of the Court, in my view an amendment should be made to the Family Law Act 1975 so as to provide that proceedings for the enforcement of a parenting order shall not be instituted, except by leave of the court in which the proceedings are to be instituted, after the expiration of 12 months after the date on which the respondent to the application is alleged to have contravened the order.
I note that there is a similar time limit imposed by s.44 of the Family Law Act 1975 in respect of the institution of certain financial proceedings after 12 months from the date of a divorce order.
I propose to refer this decision to the Chief Judge of the Court.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 17 August 2015
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