Herriot & Howes
[2020] FCCA 3483
•21 December 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
Herriot & Howes [2020] FCCA 3483
File number(s): BRC 32 of 2014 Judgment of: JUDGE MIDDLETON Date of judgment: 21 December 2020 Catchwords: FAMILY LAW – contravention and contempt applications – where there are two children of the relationship – where final orders were made 12 July 2019. Legislation: Family Law Act 1975 (Cth) Pt VII Div 13A, ss 60CA, 70NAC Cases cited: Re Group Pty Ltd v Kazal (No.4) [2017] FCA 1084 Number of paragraphs: 52 Date of last submission/s: 28 October 2020 Date of hearing: 28 October 2020 Place: Brisbane Counsel for the Applicant: Mr Galloway Solicitor for the Applicant: HCM Legal Counsel for the Respondent: Mr Baston Solicitor for the Respondent: Hofstee Lawyers ORDERS
BRC 32 of 2014 BETWEEN: MR HERRIOT
ApplicantAND: MS HOWES
Respondent
ORDER MADE BY:
JUDGE MIDDLETON
DATE OF ORDER:
21 DECEMBER 2020
THE COURT ORDERS:
1.The application for contravention filed 7 May 2020 is dismissed.
2.The application for contempt filed on 26 June 2020 is dismissed.
3.The application for contempt filed on 1 July 2020 is dismissed.
4.That the application in a case be adjourned for further mention to 9:30am on 11 February 2021 in the Federal Circuit Court of Australia at Brisbane.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Herriot & Howes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MIDDLETON
BACKGROUND
On 28 October 2020 I heard three applications filed by the applicant father on 7 May 2020 (contravention application), 26 June 2020 (contempt application) and 1 July 2020 (contempt application) respectively.
The applications relate to two children, X born 2005 (aged 15) and Y born 2007 (aged 13).
All three applications allege breaches of orders made on 12 July 2019.
The mother acknowledges that the child Y is not spending time with the father in accordance with the orders made 12 July 2019 but argues that she has a reasonable excuse for the non-compliance.
MATERIAL
The father relied upon the following:
(1)contravention application filed 7 May 2020,
(2)affidavit filed 7 May 2020,
(3)application for contempt filed 26 June 2020,
(4)affidavit filed 26 June 2020,
(5)application for contempt filed 1 July 2020,
(6)Affidavit filed 1 July 2020,
(7)Affidavit filed 14 October 2020 (submissions), and
(8)the order of 12 July 2019.
The mother relied upon the material as set out in her written submissions handed to the court on 28 October 2020. It should be noted that items 9, 10 and 11 were not filed with the court and as a result will not be relied upon. It is of course noted that the mother alleges that either there is no basis for the contravention or contempt alleged or that she has a reasonable excuse for the breach of the orders.
THE ORDERS SOUGHT
The father seeks make up time and a conviction for the contempt and the mother seeks that the orders of 12 July 2019 continue in force.
THE LAW
The contravention application invokes Part VII Div 13A of the Family Law Act 1975 (Cth) (the Act). As a result when dealing with contravention applications, particularly where the applicant seeks additional time by way of a parenting order, pursuant to section 60CA the best interests of the children is my paramount consideration.
The standard of proof in relation to contravention applications is the civil standard namely that I must be satisfied on balance of probabilities that a contravention has occurred and if it has occurred that there either is or is not a reasonable excuse for doing so.
The standard of proof for contempt applications is the criminal standard, that is, beyond reasonable doubt.
A civil contempt is a breach of a court order. The elements of the offence of a civil contempt were set out by Perram J in Re Group Pty Ltd v Kazal (No.4) [2017] FCA 1084 at [73] as follows:
“In the case of civil contempt, the plaintiff must prove that:
(i) an order was made by a court;
(ii) the order was sufficiently clear such that one can be sure beyond reasonable doubt that the order was not complied with;
(iii) the order was served on the alleged contemnor or that service was for some reason dispensed with under some lawful order;
(iv) the alleged contemnor had knowledge of the terms of the order;
(v) the alleged contemnor breached the order; and
(vi) the alleged contemnor took a deliberate step which, even if not intended to, breached the order. What is necessary is not that the alleged contemnor intended to breach the order but rather that the order was breached and that the action constituting the breach was intended. Hence, casual, accidental or unintentional acts which breach an order are excluded.
With regards to contraventions section 70NAC provides:
A person is taken for the purposes of this division to have contravened an order under this act affecting children if, and only if:
(a) where the person is bound by the order-he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise-he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
THE ALLEGED CONTRAVENTION
The first alleged contravention is that on 20 November 2019 at 7:22pm the respondent without reasonable excuse failed to engage X in individual counselling pursuant to the order of 12 July 2019 paragraph 5 (SIC).
The second alleged contravention is that on 14 December 2019 at 8:31am the respondent without reasonable excuse failed to engage X in individual counselling pursuant to the order of 12 July 2019 paragraph 5 (SIC).
Relevantly order 5 of the orders dated 12 July 2019 provides:
(5)That the child X spend no time with the father, until such time that the following has commenced and where appropriate, been completed:
(a)X engage in individual counselling. Both parents to support X be available to the therapist as required;
(b)the father has engaged in individual counselling with the therapist to assist him with building awareness and insight regarding his relationship with X from her perspective, and learn to engage with her in appropriate ways whereby X feels comfortable and supported in order to alleviate her fears;
(c)upon the view of the father’s counsellor that the father is ready to engage in therapeutic counselling with X and for such therapeutic counselling to commence after the father has:
(i)Given the mother report from his individual counselling outlining that he is ready to engage in therapeutic counselling with X; and
(ii)The father has completed the post separation parenting program course.
It is immediately clear when one reads the order that it is uncertain as to who would be responsible for arranging the individual counselling referred to.
In support of the first alleged contravention the father relies upon annexures to his affidavit filed 7 May 2020. That annexure is said to be an email between the parents wherein the father asked how X’s individual counselling was going and the mother responds that she will find out about the private counselling for X and will let you know the total cost to be paid by you.
There is no further evidence provided in relation to this alleged contravention. It is important in my view to note that the father had certain obligations in relation to spending time with X. He gave evidence that he had not complied with those obligations pursuant to orders 5 b and c.
I have no evidence as to whether the mother provided the father with the names of counsellors and their costs or otherwise however the evidence the father relies upon does not satisfy me on balance that the mother has intentionally failed to comply with the order. Indeed the evidence the father provides tends to support the view that the mother was willing to comply with the order.
In relation to the second alleged breach the father relies upon annexure W to his affidavit filed 7 May 2020. That annexure shows that the father again asked the mother whether X was attending any counsellors in the mother responds “so are you taking one”.
The email exchange identifies that the parties were in dispute as to whether counselling should be a free service or otherwise and in any event clearly identifies that the parties were unable to reach agreement in relation to X’s counselling.
The evidence in my view supports the view that the mother was willing to comply with the order but that she required the father to comply with his obligations pursuant to the order and meet the costs in circumstances where she complains he was not meeting any costs relating to the children.
In light of the evidence relating to the contravention application I am satisfied that the mother was not intentionally failing to comply with the order and that she was making reasonable attempts to comply with the order.
It is also relevant to note that the father provides no evidence to support a finding that the mother failed to engage the child in individual counselling on either 20 November 2019 at 7:22pm or 14 December 2019 at 8:31am. It seems those times and dates are arbitrarily chosen by the father without reference to any appointments having been made or otherwise.
Furthermore in my view it is not clear that there was a positive obligation on the mother alone to arrange for counselling. In those circumstances I dismiss the contravention application filed on 7 May 2020.
CONTEMPT APPLICATION FILED 26 JUNE 2020
The first alleged contempt is that on 15 May 2020 at 7:57am the respondent refused to engage X in individual counselling in deliberate breach of the court order made on 12 July 2019.
Having found previously that the order is not sufficiently clear and noting that the standard of proof is beyond reasonable doubt I am not satisfied that the father has proved contempt in relation to ground one.
All of the other contempt allegations relate to the child Y not being available to spend time with the father at various times and dates pursuant to the order of 12 July 2019.
Some context is important before determining whether the mother is in contempt of the order or not.
The parents agree that Y was spending time with her father pursuant to order 3 of the orders made 12 July 2019 until on or about the commencement of the school year in 2020. That is Y was spending equal amounts of time in the care of both parents.
Commencing 20 January 2020 Y was to spend time with her father each alternate weekend from after school Friday until 4:00pm on Sunday. It seems that Y’s time with her father whilst occurring at various times did not include overnight time in 2020.
When Y was interviewed on 20 July 2020 by Dr D, a family consultant, she informed him that she was not spending overnight time with her father “due to the father working or his choices around this,” “it just happened”, and that “her time with the father in 2020 had been consigned to a few hours or so on occasions that this happened”.
Furthermore Y described that an incident occurred in April 2020 where the father wish to spend overnight time with her in a hotel. She said that she initially found it surprising but was ultimately okay with it and texted her mother to tell what was going on.
Upon the father realising that the child was texting her mother he became angry and accused the child of spying on him and thereafter was yelling at the child.
Y said that the incident upset her greatly and that she wanted an apology from her father which had not been forthcoming as at the date of her interview. She informed Dr D that she had told her father that she did not wish to see him.
Y subsequently informed the family consultant that she was open-minded to spending time with the father again “if it didn’t happen again…. him making me feel scared and uncomfortable…. Then I’ll see him.” She informed Dr D that the father “needs to change… He needs to respect my feelings and opinions.” The family consultant notes that Y presented as calm pleasant and intelligent and that she was content and happy with the current in parenting arrangements.
The second contempt alleged is that on 29 May 2020 at 3:15pm the respondent refused to facilitate the child spending time with the father. In support of that allegation the father relies upon annexure E to his affidavit filed 26 June 2020.
Annexure E provides an email wherein the father says at 4:30pm I am here at your house to pick up Y. The first matter to note is that the allegation is that the child was not available at 3:15pm. The father provides no evidence that he was present at 3:15pm.
Annexure E further provides that at 8:16am the mother emailed the father advising that she required information as to where the child would be spending overnight time with the father. She indicated that she had previously asked for this information and it had been refused each time. She goes on to say that she will be keeping Y safe until the parties resolve that issue and furthermore that Y is still upset that the father had shouted in her face and scared her the last time she visited him.
It is quite clear from the email exchange that the mother was requesting reasonable information relating to where the child would be staying. That request was made in circumstances where the father had no suitable accommodation for overnight time and had previously suggested that he and the child spend overnight time in a hotel.
The action the mother took on this occasion was to request important and relevant information that related to the safety of the child and in my view was reasonably entitled to request that information.
The time between the child and her father did not occur because the father refused to provide that reasonable relevant information. In those circumstances I am not satisfied beyond reasonable doubt that the mother took a deliberate step which breached the order.
The third alleged contempt is that on 29 May 2020 at 4:00pm the mother dropped Y off to an address in Suburb E and drove away leaving the children alone with a male occupant.
The evidence in support of that contempt is found at paragraph 9 and 10 of the father’s affidavit filed on 26 June 2020.
The father alleges that the mother is flagrantly disregarding the court orders. When one considers the evidence of the family consultant and the evidence of the mother under cross examination it is quite apparent to me that she is not flagrantly disregarding court orders but rather she is caught in a bind between the court orders and the impact the father’s behaviour is having on the child.
The information contained within the family consultant’s memorandum dated 20 July 2020 satisfies me that the mother cannot comply with the court orders until such time as the father addresses his own behaviours and the impact they are having on the child. In short I am not satisfied beyond reasonable doubt that the mother is flagrantly disregarding the court orders.
CONTEMPT APPLICATION FILED 1 JULY 2020
There are two alleged contempts outlined in this application. They both relate to a failure in the child spending time with the father at 5:30pm on 12 June 2020 and at 3:45pm on 26 June 2020 respectively.
Whilst I accept that technically the orders have been breached I am not satisfied beyond reasonable doubt that the mother is intending to breach the orders.
As previously set out the child has advised the father that she does not wish to attend due to his actions and she requires an apology from him. Ordinarily this may be seen as a petulant child acting out however when one considers the history relating to the father’s relationship with this child’s older sister and the need for therapeutic counselling after the father has attended to his own counselling it is clear in my view that the father is in real terms responsible for this child not spending time with him.
He demands her attention on the one hand then fails to recognise that he has hurt and/or scared the child and needs to address this issue on the other hand.
Whilst ever these issues are at play it could not be said that the mother is flagrantly disregarding court orders.
Accordingly I dismiss the contempt applications filed on 26 June 2020 and 1 July 2020.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Middleton. Associate:
Dated: 21 December 2020
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