Hodges and Xiu (No. 2)

[2014] FamCA 166

Amended pursuant to Rule 17.02 of the Family Law Rules 2004
FAMILY COURT OF AUSTRALIA

HODGES & XIU (NO. 2) [2014] FamCA 166

FAMILY LAW – ORDERS – Contravention – Reasonable excuse – Wording of order confusing and respondent points to conflict with applicant – Reasonable excuse established.

Family Law Act 1975 (Cth)

Childers & Leslie (2008) Fam LR 379
Northern Territory and GPAO (1999) 196 CLR 553

APPLICANT: Mr Hodges

RESPONDENT: Ms Xiu

FILE NUMBER: MLC 6222 of 2008

DATE DELIVERED: 5 March 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Baume

COUNSEL FOR THE RESPONDENT: Mr Da Gama

Orders

1. That the application filed 6 February 2014 by the applicant is dismissed.

2. That the reasons this day be transcribed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hodges & Xiu (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6222 of 2008

Mr Hodges

Applicant

And

Ms Xiu

Respondent

REASONS FOR JUDGMENT

1. This contravention application arises out of orders made by consent before Dessau J on 14 February 2013.  Paragraph 4 of that order requires some considerable scrutiny.  It provides that the mother shall “arrange” – and I stop there and interpolate that I am not entirely sure what that obligation means – “an annual conference” – which is also undefined.  It goes on then further to say:

   To discuss [K’s] health and education.

   Just what “discuss” means is also open to interpretation. 

   In any event, what then followed in the order were five distinct subparagraphs.  Some of them are clearly to be read conjunctively with the opening sentence, but others I am not so sure.  For example, there is a defined place at which the conference is to be organised;  a facilitator is to be organised;  and, if, presumably, agreement cannot be reached about the facilitator, the facilitator is to be organised by the mother. 

   One thing that is clear is that the conference was to be held no later than the end of the third school term.  As such, in respect of this contravention, the focus really can only be on the period from the making of the order in February 2013 until August or September of the 2013 year.  It is common ground that the conference was not organised prior to the end of the third school term.

2. Paragraph 4 then provides that the case conference is to be attended by each parent, and up to four people chosen by each of them to include any:

   family, doctors, and allied health or teaching professionals, in addition to any other person nominated by [K’s] School.

3. It is not clear whether those words include any family, or does the comma appear there as an error, in which case it presumably means family doctors.  If so, whose family doctors?  Is it both parties’ family doctors or K’s family doctor?  Who are the allied health and/or teaching professionals?  Presumably if there are teaching professionals, then they would not fit in to the next category, which is “any other person nominated by [K’s] school.”  The whole part of this is very confusing. 

4. The fifth part of paragraph 4 reads:

   With an agenda to be provided by the mother to the father at least 28 days before the conference, to be returned to her by the father with any additional agenda items within 14 days of his receipt of it.

5. That seems relatively clear.  The mother was to arrange an annual case conference to discuss K’s health.  She was to prepare an agenda to be sent at least 28 days before the appointed conference date.  The father then had the opportunity to add additional agenda items. 

6. Subparagraph 4(e) concludes with a semicolon.  Then the following sentence appears almost as if it was part of (e), but it seems more to be part of the opening sentence of paragraph 4:

   Provided that in the absence of any agreement, the mother shall determine the educational issues and shall, between annual conferences, keep the father informed of any educational decisions and advise him of appointments.

7. If I treat (a) to (e) as conditions or parts of the obligations concerning the conference, then the conference becomes even more confusing because paragraph 4 could be read that the mother shall arrange an annual case conference to discuss K’s health and education, provided that in the absence of any agreement, the mother shall determine the educational issues. 

8. I think it would be fair to say that the wording of this particular order was void for uncertainty and therefore becomes unenforceable.  Be that as it may, the mother has conceded she did not organise a conference before the end of the third term, but she says she has a reasonable excuse.  She points to the seventh paragraph of her affidavit filed on 3 March 2014, as the reasonable excuse.

9. The mother says that during terms 1 and 2, the educational health professionals were conducting an overall assessment for funding.  She was waiting for the assessment outcome, and planning to have a case conference in term 3 after the completion of the assessment.  In term 3, the father started to unilaterally explore mainstream schools which under the order made in February 2013, was the mother’s sole responsibility.  That was subject to paragraph 4, which is the conference order. 

10. The relevance of the father exploring mainstream schools is somewhat perplexing.  The mother went on to say that the father having done that, refusing to involve her which resulted in conflict developing between them.  I detect that this is the nub of the case.  The mother then said:

    Due to the conflict and the applicant’s conduct, I believed it was not the right time to have a case conference.  However, I repeatedly requested the applicant to book a joint appointment or meeting with Dr [R] –

    who I interpolate here as the paediatrician for the child – to discuss mainstream schools, but he refused. 

11. The relevance therefore of the evidence in this case concerns the words due to the conflict and the applicant’s conduct.  She believed it was not the right time to have a case conference.  The mother’s evidence is somewhat in conflict with the fact that she said she realised that the Court treated these matters seriously, and she apologized for any lapse occasioned by her conduct and confirmed that in future she would strictly comply with the orders. 

12. Despite the apology, the excuse she used was that there was conflict.  She was not seriously challenged about that conflict.  She said in re-examination that the father had said to her that he would kick her out of Australia, and she perceived that as a threat.  This evidence in relation to the question of whether or not there is a reasonable excuse, I find is the most plausible. 

13. I have to determine this case on the balance of probabilities.  As I have indicated, the wording of the order was vague and confusing.  The mother says it was not the right time to have a conference, and that conflict with the father was developing.

14. On behalf of the respondent, her counsel submitted that the evidence supported her reasonable excuse.  Was her behaviour reasonable?  The applicant’s counsel points to the fact that there are no issues of health and safety to which the respondent points which might give rise to such a defence of reasonable excuse.  The law in this area is, as I indicated in discussion, at best, vague.

15. Section 70NAC of the Family Law Act 1975 (Cth) (“the Act”) defines the meaning of a contravention of an order. It simply says that a person is deemed to have contravened an order if they intentionally fail to comply with the order or make no reasonable attempt to comply with it if they are bound by it. The mother concedes the order was not carried out. Section 70NAE, however, says that the circumstances may excuse a person if they can show there is a reasonable excuse. Section 70NAE(1) says that the circumstances are not limited to those set out thereafter.

16. In Childers & Leslie (2008) Fam LR 379, Warnick J said:

    I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection.

17. In many ways, I interpret that to mean that his Honour said you have to look for something that is a little unusual.  In Northern Territory and GPAO (1999) 196 CLR 553, the Chief Justice and Gummow J, in relation to a non-child matter, but dealing with an equivalent provision, said the circumstances in which a person has a reasonable excuse for contravening an order under the Act include, but are not limited to, those specified in the relevant provisions. In other words, one does not have to draw conclusions from the specific examples to work out whether or not the general provision requires any specific things to be proved. Having regard to the vague nature of the wording of the order the respondent’s explanation it seems to me on the balance of probabilities to be reasonable. The application, accordingly, is dismissed.

RECORDED   :   NOT TRANSCRIBED

1. I have an application now by the successful respondent for costs. Section 117 of the Act provides that in this jurisdiction, each party shall pay their own costs unless there are circumstances that justify a departure from that principle. If the court is contemplating departing from that principle, it must take into account the matters set out in s 117(2A) of the Act. In this particular case, the successful respondent agreed that the order had not been complied with, but she proceeded to say that she had a reasonable excuse, which I have found is open to her, but she then apologised for her own behaviour. Under those circumstances, it would be very difficult for me to find that there is a justifiable reason to depart from the principle that each party pays their own costs. The application for costs is refused.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 5 March 2014.

Associate: 

Date:  24 March 2014