INGAM and TRUDY

[2017] FCWA 68

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: INGAM and TRUDY [2017] FCWA 68

CORAM: O'BRIEN J

HEARD: 12 MAY 2017

DELIVERED : 6 JUNE 2017

FILE NO/S: PTW 203 of 2008

BETWEEN: MR INGAM

Applicant

AND

MS TRUDY
Respondent

Catchwords:

PARENTING - contravention hearing - where the order allegedly contravened provides that the children are to spend time with the Applicant "as agreed between the parties" - where it is common ground that there is no such agreement - where the Applicant contends that alleged failure by the Respondent to make a bone fide effort to agree amounts to a contravention of the order - application dismissed.

Legislation:

Family Law Act 1975 (Cth), s 65N, s 65NA, s 70NAC, s 70NAD, s 70NAE, s 70NAF, s 70NBA
Family Law Rules 2004 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant

Respondent: Self-Represented Litigant

Solicitors:

Applicant: Self-Represented Litigant

Respondent: Self-Represented Litigant

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The matter for determination is the application of [Mr Ingam] (“the husband”) filed on 9 November 2016, in which he alleges that [Ms Trudy] (“the wife”) has contravened a parenting order made by the Honourable Justice Crisford on 16 June 2010.

2The children the subject of the parenting orders are [Child A] born [in] 2000, now aged 17, and [Child B], born [in] 2003 and now aged 14.

3The order contained in paragraph 2 of the Orders made on 16 June 2010 (“the relevant Order”) is the order in respect of which the contravention is alleged. It is in the following terms:

The children are to live with the Respondent and spend time and communicate with the Applicant, [Mr Ingam], as agreed between the parties.

4The husband filed various documents in support of his application, which contained a number of separate allegations. On 10 May 2017 he filed written submissions confirming that he intended to refer to the relevant sections of the Family Law Act 1975 (Cth) (“the Act”) and to the brochure produced by the Family Court of Australia setting out penalties for breaches of parenting orders. He confirmed also that he intended to make oral submissions at the hearing of his application on 12 May 2017 clarifying the material upon which he intended to rely.

5In the same written submissions, the husband said:

I will be confining my contravention of orders application, to the sole ground of making no attempt to comply with the orders: alleging that the respondent ([Ms Trudy]) by refusing to communicate with the applicant (me), has made no reasonable attempt to comply with the orders.

I do not seek a change to the orders, only that order (2) two be enforced.

6At the commencement of the hearing on 12 May 2017 the husband confirmed that his allegation was that the wife had contravened the relevant Order, by ceasing contact with him and no longer attempting to facilitate his time and communication with the children.

7The wife denied the allegation.

The evidence at the hearing

8The husband relied solely on parts of his affidavit filed on 3 January 2017. Helpfully, he was able to be very specific about the paragraphs of that affidavit upon which he intended to rely and confirmed that he did not seek to rely on any other affidavit material.

9The husband had, in an effort to narrow the issues for trial, served on the wife a notice to admit facts pursuant to the Family Law Rules 2004 (Cth). While the husband’s intentions in that regard were no doubt appropriate, I ruled that the provisions of r 11.08 (which provides that if a person served with a notice to admit does not file a notice disputing facts that party is taken to admit that the facts asserted are true) do not apply in this case. As the respondent to a contravention application cannot be compelled to give evidence, the use of a notice to admit facts to either indirectly compel the giving of evidence, or compel the admission of facts alleged by the applicant, is in my view inappropriate.

10The husband accordingly gave oral evidence so as to assert the facts which had been set out in the notice which he filed. I permitted him to give that evidence, without objection by the wife, as it was clear from the affidavit material filed that he had otherwise relied on what he understood to be the effect of the notice.

11As both parties were self-represented I explained to them the manner in which the trial was to proceed. I explained the process and importance of cross-examination. I made it clear to the wife that she was not obliged to give evidence and that the husband bore the burden of proving the alleged contravention on the balance of probabilities. I explained also that if the wife did choose to give evidence the husband would be entitled to cross-examine her.

12The wife initially indicated her intention to cross-examine the husband. Over a break in the proceedings she reconsidered her position and chose not to cross-examine him. She chose to give evidence herself and was cross-examined by the husband.

13I am satisfied that the hearing proceeded in a manner which afforded procedural fairness to both parties.

The law

14Both parties are bound by the parenting order in question.

15Section 70NAC of the Act provides that a person bound by a parenting order is taken to have contravened that order if he or she has “intentionally failed to comply” or “made no reasonable attempt to comply” with it.

16Section 70NAE sets out the circumstances that can constitute a “reasonable excuse for contravening an order”. The circumstances set out in that section are an expressly inclusive, rather than exclusive, list.

17Section 70NAF provides that the standard of proof to be applied, both on the question of whether there has been a contravention and on the question of whether there was a reasonable excuse, is proof on the balance of probabilities other than in certain cases (of which this is not one) in which harsher penalties are to be applied.

18Section 70NBA provides that in the context of proceedings alleging a contravention of a parenting order, the court may make an order varying the primary order whether or not the contravention is proved.

19Section 70NAD provides that parenting orders that deal with whom a child is to spend time, or communicate, are taken to include a requirement that people act in accordance with s 65N and s 65NA respectively. Those two sections provide that a person must not “hinder or prevent” the time being spent or the communication occurring, nor interfere with them.

The first issue – what conduct, if proven, would be capable of constituting a contravention of the order?

20A preliminary issue arises by virtue of the wording of the order in respect of which the contravention is alleged.

21As already noted, the order provides that the children are to spend time and communicate with the husband “as agreed between the parties”.

22In my view, a contravention of such an order would be proven in circumstances where it was established that there was an agreement between the parties that the children should spend time with, or communicate with, the applicant at a specified time or times, and the respondent intentionally failed to comply with that agreement or made no reasonable attempt to do so.

23In the present case, however, it is not alleged by the husband that there was any such agreement. Rather, the husband alleges that by cutting off communication with him, the wife has failed to comply with the order either by failing to reach agreement with him or by making no reasonable attempt to do so. He argues that an order whereby children are to spend time with the parent “as agreed between the parties” carries an implied and enforceable obligation to make reasonable and bone fide efforts to reach such an agreement. He argued that the relevant Order was to be construed against the background of the proceedings which led to them being made and “in the context of the framework which they establish”.

24He further submitted that the orders (errors as they appear in original):

…endorse the framework that was in place at the time [the orders were made], which was that [the wife] facilitate contact between the parties. [The wife] honestly reported that she was facilitating contact, but dishonestly reported the extent of it at the time.… in the light of [the wife’s] submission that she had facilitated contact, the judge ordered that this was to be the framework, and that it was to continue. The judge encouraged the Respondent and expressed her hope that such arrangements would continue.

25The husband referred to the decision of the Full Court in Yunghanns & Yunghanns (1999) FLC 92-836 in which the court said at [142] that the relevant order under consideration in that case:

…..must be construed in the context of the other orders also contained in the consent orders of that date, and in the light of the proceedings of which they were the culmination and of the parties thereto.

26While the husband’s reference is accurate, at [143] of the same judgment the Full Court went on to say this:

In the absence of any allegation of fraud or mistake or other vitiating circumstances in the formation, drafting or recording of the orders, extrinsic evidence is not admissible to contradict the plain words of the order, or to seek to establish the agreement between the parties which lay behind it (citations omitted).

27In considering what form of conduct is capable of amounting to a contravention of an order, the court must have regard to the plain words of the order itself.

28In my view, the wife’s obligation under the relevant Order is to facilitate any time or communication with the children that is agreed from time to time. By the operation of s 70NAD she is further obliged not to hinder or prevent, nor interfere with, any such time or communication.

29The wife’s obligations which, if not met, are capable of amounting to a contravention of the order only arise once there is a relevant agreement for the children to spend time with, or communicate with, the husband.

30Accordingly, I reject the husband’s argument that an alleged failure on the part of the wife to make a bone fide effort to agree arrangements for the children would, if proved, amount to a contravention of the order for the purposes of s 70NAC.

Conclusion

31As the husband’s allegation is framed squarely in terms of a failure on the part of the wife to make a bona fide effort to agree (as distinct from any allegation that she has hindered, prevented or interfered with any specific agreed arrangement or reneged on any such agreement) it follows from what is set out above that in my view the allegation cannot be made out, and the husband’s application must be dismissed.

32It is unnecessary, therefore, to traverse in these reasons the detail of the evidence given by the husband in support of his application. It is sufficient to say that the evidence was directed solely to support the allegation as framed. There was no evidence to suggest that the wife had failed to comply with any specific agreed arrangement.

33For the sake of completeness, I record that even had I concluded to the contrary the evidence given by the wife would have satisfied me on the balance of probabilities that there was reasonable excuse for the alleged contravention.

34Child A is 17 years old. Child B is 14. They live in [the South West], where they attend school and have active lives including part-time employment outside school hours. The husband lives in Perth.

35The wife’s evidence was that the children have both expressed their firm wish not to spend time with or communicate with the husband. She said they have reiterated those views following the last occasion on which they saw the husband in December 2016. Her evidence was that she has endeavoured to encourage both children to communicate with their father but that she cannot force them to do so. It was common ground that she had permitted the children to communicate directly with the husband and she gave evidence that she would have no problem with the children spending time with the husband or communicating with him if it is in accordance with their wishes and they are happy to do so.

36It is unnecessary for present purposes to resolve the factual disputes between the parties as to the circumstances which the wife would allege have led the children to be afraid of the husband, nor is it necessary to determine whether or to what extent they are presently afraid of him. It is sufficient to say that I accept the evidence of the wife to the effect that the children have expressed strong views, amounting to a refusal, that they do not presently wish to spend time with or communicate with the husband, and that she has made reasonable efforts to persuade them away from those views. I note that at trial the husband did not actively dispute the wife’s evidence as to the children’s expressed wishes; rather, he both blamed her for those wishes and argued that they could not be “turned around” unless she made a more active effort to communicate with him and reach an agreement.

37I record also that both at the directions hearing prior to trial, and at the trial itself, I invited the husband to consider whether he would seek any variation of the existing order so as to address what he would regard as the underlying problem. On both occasions, I pointed out to him the power of the court to vary the existing order in the context of the current application, whether or not the alleged contravention was proved.

38The husband declined that invitation. He expressly said that he did not want the existing order to be varied, notwithstanding his position that it is not working. Rather, he sought that the wife be found to have contravened the order, that she be penalised “or even warned” and that I make an “order or judgment” that would “make the wife facilitate him seeing the children again or communicating with them”.

39In those circumstances, the only order appropriately to be made is for the husband’s application to be dismissed.

I certify that the preceding [39] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
06/06/2017