J and J (No 1) - [2003] FMCAfam 440

FEDERAL MAGISTRATES COURT OF AUSTRALIA

J & J (No. 1)

[2003] FMCAfam 440

FAMILY LAW – Contravention of parenting orders – respondent did not contravene order – where respondent claims to have misunderstood obligations under orders – application dismissed – costs – applicant wholly unsuccessful – costs order made in favour of the respondent

Family Law Act 1975
Family Law Amendment Act2000
Child Support Assessment Act 1989

Applicant:

Respondent:

File No:

PAM2317 of 2003

Delivered on:

11 August 2003

Delivered at:

Parramatta

Hearing date:

8 August 2003

Judgment of:

Ryan FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms D Hausman

Solicitors for the Respondent:

Ross Selvaggio & Associates

ORDERS

The contravention application filed 10 June 2003 is dismissed.
The Respondent have leave to make an oral application for costs.
That the Applicant pay the Respondent's costs assessed at $1,945 within twenty-eight (28) days from today’s date.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 2317 of 2003

C J

Applicant

And

S J

Respondent

REASONS FOR JUDGMENT

The Application

These reasons were delivered orally.
This is an application by CJ (“the applicant”) that the respondent contravened parenting orders. It is brought pursuant to Div 13A of Pt VII of the Family Law Act 1975. The applicant started the proceedings when he filed a Form 49 Contravention of Child Order application on 10 June 2003. He claims that SJ (“the respondent”) contravened order 2(a) made on 7 May 2001 in the Family Court of Australia at Sydney.
When the orders were made, the parties were scheduled to start a final hearing concerning the father's contact to their daughter M born 19 October 1993 (“the child”). Both parties were represented and a child's representative had been appointed to represent M's interests. The orders have been registered in this Court and thus I have jurisdiction to determine the application.
Orders 2, 3 and 8 made 7 May 2001 are as follows:
2.That the husband have contact with M as follows:
(a)Each alternate weekend for four (4) hours on Saturday and the Sunday of the same weekend between 9.30 am and 6.00 pm and the husband shall during the Saturday contact, take M to horse riding or such other activity as M be enrolled in or involved in on Saturday:-
(i)In relation to the Saturday contact same shall commence on 12 May 2001 with such contact to occur for a four (4) hour period calculated as follows:
Either:
(a)     To commence one (1) hour before the activity to be undertaken by the child and continue for four (4) hours therefrom:
Or
(b)    If there is no activity from 9.30 am to 1.30 pm.
and for the purposes of this order, the wife shall advise the husband in writing no less than four (4) days in advance of the contact period of the time and place of the activity to be undertaken by the child.
(b)That in the event that the husband is unsure whether M’s activity on a Saturday is cancelled then he shall communicate directly with the organisation responsible for the said activity.
(c)Contact shall be suspended on Mother’s Day;
(d)On M’s birthday from 9.30 am to 2.00 pm should her birthday fall on a non-contact weekend and, should her birthday fall on a weekday, from 6.00 pm to 8.00 pm, except the year 2001, which unless otherwise agreed in writing shall be on Tuesday 23 October 2001;
(e)That the husband shall have contact during the school holidays for a period of 21 days for the 2002 calendar year and each calendar year thereafter (or such greater period as may be agreed in writing) such days being daily from 9.30 pm to 6.00 pm each day, such contact to be exercised as follows:
(i)For a period of seven (7) consecutive days at the hours above stated in the period commencing Boxing Day 2002 (and each year thereafter or as agreed in writing) and thereafter for the balance of the said seven (7) days and a further four (4) days in the April school holidays; a further five (5) days in the June/July holidays and a further five (5) days in the September/October holidays with the said days in June/July, September/October and April to be contiguous and concluding on the Sunday immediately before school recommences;
(ii)    On Father’s Day from 9.30 am to 6.00 pm.
(f)By telephone each Wednesday or Thursday between 6.30 pm and 7.30 pm while M is with the wife who shall ensure the husband has her current mobile number and the wife shall ensure her mobile service shall be turned on during those periods.
(g)Each Christmas Day from 9.00 am to 1.00 pm in 2001, and alternate years thereafter and from 1.00 pm to 5.00 pm in 2002 and in alternate years thereafter.
(h)As to the school holidays which are prior to the holidays including Christmas Day 2002 (which holidays are dealt with elsewhere herein) the husband shall have contact as follows:
(i)June 2001 holidays              - two (2) days
(ii)Christmas 2001 (to be exercised on 26 December 2001, 27, 28, 29 December 2001 or as otherwise may be agreed in writing)   - four (4) days
(iii)April 2002  - five (5)5 days
(iv)June/July 2002                 - six (6) days
(v)October 2002                   - seven (7) days
Such days being consecutive each being from 9.30 am to 6.00 pm and (subject to any written agreement to the contrary) being in the last week and concluding on the Sunday prior to the recommencement of M’s school term.
3.That M shall be within the parental responsibility of the husband during the periods specified in clause 2(a), 2(c), 2(d) and 2(f) hereof and that he shall have the responsibility for making decisions for the day to day care, welfare and development of M while M is in his care.
8.Except for such periods as may coincide with the birthdays of the husband, his parents or his niece, G, the husband shall take M to social events, sporting or school activities during contact periods provided that the wife advise the husband in writing of such activities no later than four (4) days prior to contact and should the activity conclude after the conclusion of contact, the mother shall collect M from that particular activity.
The orders are lengthy and comprehensively address all foreseeable exigencies concerning contact. Surprisingly, the father is even ordered to ensure that M eats fruit and vegetables during contact. The precision with which the orders are drafted and their breadth suggest that these parties have a poor relationship. The personal animus that was so apparent in these proceedings clearly influenced the structure of the orders. Because the orders are so detailed, a reasonable person may have anticipated that disagreement about their effect was unlikely. I expect that the same attitudes that necessitated the detail made it inevitable that these parties would find scope for disagreement. During final submissions, the applicant said that he started the proceedings as a matter of principle. The respondent did not make the same concession but nonetheless, she appeared to be similarly motivated.

The Issues

M loves horse riding and since May 2001 she has taken lessons an Equestrian Centre in Sydney. The respondent made arrangements for M to have her lessons at this centre while the parties were at the Family Court settling the May 2001 orders. The applicant does not cavil with the respondent's evidence that he agreed to take M to horse riding lessons and that he nominated their 11 am start time. Unfortunately, the parties did not discuss who would pay for M's lessons. The centre charges $30 for each lesson. The first contact horse-riding lesson occurred on 12 May 2001. Although the centre requires payment at the start of a lesson, neither party paid, nor were payments made on 19 May 2001 or 26 May 2001.
Either M or Ms F from the equestrian centre raised the non-payment with the respondent. On the next two occasions, the respondent sent an envelope containing the fees along with M that the child could use if the applicant did not pay for her lessons. The respondent explained the situation to M, thus:
“I said to her, ‘Look, if Daddy refuses to pay, then pay for the lesson with the money I have put in the envelope so you won't miss out or be embarrassed but only if Daddy refuses to pay’. She said, ‘Okay’.”
Unfortunately, the respondent did not discuss the fee issue with the applicant. During her oral testimony, the respondent belatedly claimed that she did try to discuss the issue on a number of occasions. I do not accept her evidence. Her affidavit is thorough and gives a comprehensive narrative of events, including conversations and correspondence concerning this very issue. Nowhere does the respondent claim that she had any such discussion with the applicant.
The horse riding lessons continued without payment until September 2002. On 20 September 2002, the respondent wrote to Ms F[1] advising that she would not pay for M's horse-riding lessons taken during contact. She was paying for horse riding lessons during the weekends M was with her. The respondent did not send the applicant a copy of this letter.
[1] Annexure A Applicant’s affidavit
On Saturday, 19 October 2002, the applicant collected M and took her to the Equestrian Centre. M did not have any money with her. I accept the applicant's evidence that he telephoned the respondent and the following conversation ensued:
Applicant: “It's CJ, SJ. There is no money in the bag containing M's horse riding gear to pay for the riding lessons.”
Respondent: “That's right, you have to pay for the lesson.”
Applicant: “That's not our previous arrangement and I've told you I will not be paying for horse riding lessons as I did not book them.”
Respondent: “You have to pay for the lessons. I'm tired of paying your bills.”
Applicant: “That's not been the previous arrangement and I told you I'm not paying for them. I didn't book them.”
Respondent: “You have to pay for the lessons. I'm tired of paying your bills. If you don't pay for the lessons in the future, then you'll not have access to M on Saturdays. You are in breach of the Court orders if you do not take M to an organised activity.”
Applicant: “I'm willing to take M to any organised activity on Saturday but there is no requirement for me to pay for an activity organised by you. If you don't have an activity organised, then the orders say I can pick her up at 9.30 am on Saturdays for four (4) hours.”
The respondent then hung up on the applicant. He paid for that lesson.
On Saturday, 12 November 2002, the applicant arrived at the respondent's home to collect M. He arrived at 9.30 am, which is the commencement time for Saturday contact if no activity is planned. The applicant says he intended to take M horse riding. I do not believe him. His claim is inconsistent with his arrival time and the telephone conversation that ensued with the respondent. It was in the following terms:
Applicant: “I'm here to pick up M.”
Respondent: “You should pick her up at 10 am and take her horse riding and you can pay for the lesson.”
Applicant: “I assumed you had stopped the lessons as you didn't wish to pay for them. As far as I know, there's no lesson planned.”
Respondent: “Then you can't have access on Saturdays then.”
Applicant: “There's no obligation on me in the Court orders to organise any specific activity, just to take M to one if it's already organised.”
Respondent: “You're in breach of the Court orders and I'll go to the Family Court over this.”
The respondent did not make M available for contact that day. On Saturday 16 November 2002, 30 November 2002, 1 February 2003, 15 February 2003, 1 March 2003, 15 March 2003 and 29 March 2003, the respondent refused the applicant contact with M. Her refusal was based upon the applicant's refusal to take M horse riding during contact. The respondent agrees that he can afford to pay for the lessons but sadly for M, will not do so. He made it plain that unless the respondent paid for her lessons, M would miss out on the lessons. As far as the respondent was concerned this meant M could not have contact with the applicant.
The applicant continued to attend the respondent's home to collect M until 1 March 2003. As to the latter periods, he telephoned in advance and after the respondent refused his request for contact he did not drive to her home. In some circumstances, failure to attend for contact could be considered abandonment of it. Neither party suggests that that is the situation here. It is the respondent's failure to make M available for alternate Saturday contact that founds the contravention application.
Annexed to the May 2001 orders is a summary of the obligations the respondent had as a person bound by a contact order. Hence, the orders comply with section 65DA(2). The explanation is in the usual form. This addresses stage 1 of the Parenting Compliance Regime. In addition to the specific obligations set out under the orders, the respondent has obligations imposed by section 65N.
At the start of the hearing I put the particulars of the alleged breaches to the respondent. She agreed that contact did not take place on the dates set out in the contravention application. The respondent said that she had a reasonable excuse for non-compliance with the orders, namely, that she did not understand that she was obliged to give contact in the event that the applicant refused to take M horse riding. This raises two questions that concern the interpretation of the orders. Firstly, is the respondent's understanding of the effect of the orders correct? If it is, then she had no obligation to give contact. If her understanding is incorrect, should the respondent be excused because she did not understand her obligations under the order, section 70NE(1A)?

Relevant Law

Prior to the amendments effected by the Family Law Amendment Act2000, Part XIIIA of the Family Law Act 1975 dealt with both sanctions for failure to comply with orders (section 112AD) as well as contempt of court (section112AP). Under that Part, the provisions in relation to failure to comply with orders treated parenting orders differently by changing the onus of establishing a reasonable excuse in those cases, to the respondent, by provision for counselling (section 112AD(5) and by the additional remedy of compensatory contact.
Under the Family Law Amendment Act2000 the legislative scheme changed in the following particular respects. Firstly, failure to comply with orders affecting children was moved out of Part XIIIA, sanctions, to Part VII, that is children. Failure to comply with other orders remained in Part XIIIA. The provisions in relation to contempt were moved to a new Part XIIIB, contempt of court. Applying the recommendations of the 1998 Family Law Council report “Child Contact Orders: Enforcement and Penalties” the amendments to Part VII introduced a three-stage parenting compliance regime structure to address prevention, remedial measures and ultimately punitive sanctions. Sections 63DA and 65DA address prevention and then, triggered by a finding that an order affecting children has been contravened, remediation (Subdivision B, Division 13A) and sanctions (Subdivision C, Division 13A).
Stage 1 of the Parenting Compliance Regime relates to prevention of breaches through knowledge and information to the parties. Stages 2 and 3 deal with contravention of orders affecting children. Stage 2 applies where:
·there is found to be a contravention without reasonable excuse of any type of order affecting children except a child maintenance order;
·there has been no similar finding in relation to the same order, that is, a second or subsequent breach;
·or there has been a similar finding and the Court is satisfied, in any event, it is more appropriate for that contravention to be dealt with under stage 2; and
·unless the Court is satisfied the person who contravened the primary order has behaved in such a way that they showed a serious disregard for his or her obligations under the order. If so, stage 3 must be applied.
The orders available under stage 2 are identified in section 70NG(1). The Court can order that the respondent or both parties attend a post‑separation parenting programme, initially, for assessment for suitability and then to participate, a compensatory contact order or adjourn so that a further parenting application may be made.
Stage 3 of the parenting compliance regime applies:
·for second or subsequent breaches of the same order;
·or if a court is satisfied that the person behaved in a way that showed a serious disregard for his or her obligations under the primary order; and
·unless the court is satisfied that is more appropriate for the contravention to be dealt with under stage 2. See section 70NJ(1) and (2).

Did the respondent breach an order?

Did the orders or section 65N require the respondent to give contact on the Saturdays complained about?
Both parties agree that alternate Saturday contact was included in the May 2001 orders so that the applicant and M could share an activity. For whatever reason, it was considered that this specific contact needed to have a specific purpose. This is to be contrasted with other contact ordered in order 2 which does not mandate that the applicant take M to horse riding or any other activity. During other contact periods the applicant must take M to pre-arranged activities only if the respondent gives him four days advance written notice. This is specifically referred to in order 8.
The applicant says that the order provides that he has Saturday contact starting at 10 am if M has an 11 am lesson or 9.30 am if no activity has been arranged. He says if no activity is arranged then the nexus between Saturday contact, an activity or horse riding is broken. In my opinion order 8 requires that the respondent give the applicant no less than four (4) days written notice of the time and place of the activity. This written notice applies to the words:
“Or such other activity as M may be enrolled in or involved in on a Saturday.”
Notice of the horse riding lessons was given and accepted as a condition precedent for the Saturday contact when the orders were entered. Until the respondent, equestrian centre or child cancelled the horse riding lessons order 2(a) required the applicant to take M to them. The applicant was not entitled to cancel the lessons and still keep his entitlement to Saturday contact.
Did the respondent's letters in September 2002 have the effect of cancelling M's lessons or signal her agreement that horse riding was no longer an essential prerequisite for this contact? In my opinion, they did not. The respondent emphatically demonstrates her insistence that the applicant takes M horse riding and also pay for the lessons. Her refusal to pay for the lessons does not entitle the applicant to treat the lessons as cancelled.
By order 3, the applicant has parental responsibility for M during contact. Parental responsibility is defined in section 61B of the Family Law Act 1975 as follows:
In this Part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
The applicant pays generous child support, presently $353.34 per week, more than is probably spent on M's day-to-day care. This is the amount he is assessed to pay pursuant to the Child Support Assessment Act 1989. This payment represents the contribution the applicant must make to the child's costs while in the respondent's care. It does not represent the total amount he will pay towards his daughter's care.
The Child Support Assessment Act 1989 recognises that parents who have the care of a child during contact incur costs associated with the child's care. Hence, there is a sliding scale that adjusts the amounts payable to the carer parent if a point is reached whereby the child is, for example, substantially in the liable parent's care or there are high costs associated with contact. In my opinion, this means that parental responsibility includes the obligation to attend to the child's financial needs during contact. This does not have the effect of empowering the respondent to enrol the child in expensive activities for Saturday contact and demanding that the applicant meet the costs. There is a distinction between an “agreed activity”, horse riding and activities initiated by the applicant or activities initiated by the respondent. Those arranged by the respondent, without the applicant's consent, explicit or implied, are costs that she must pay. Those arranged by the applicant are costs that he must pay. In my opinion, the cumulative effect of the orders, section 61B, and the Child Support Assessment Act 1989 is that the applicant must pay the costs of the horse riding lessons arranged in May 2001.

I agree with Ms Hausman's submission that order 2(a) established a mutual obligation upon the parties, an obligation on the applicant to take M horse riding or other notified activities and an obligation on the respondent to give contact on the Saturdays provided the applicant indicated he would comply with the order. Saturday contact is to be contrasted with orders for contact on other occasions, which do not have that same condition precedent concerning attendance at an activity.
The applicant emphasised that the orders provide an either/or approach to Saturday contact. He says that if there is no activity planned contact commences at 9.30 am. However, one must look at the entirety of the orders in order to understand how order 2 is intended to operate. One starts with order 2(a) and sees the nexus to mandatory participation in an activity for contact to happen. Order 2(b)(a) provides a mechanism whereby the applicant can satisfy himself that the activity in relation to which he has notice may have been cancelled. He is to contact the organisers of the activity to ascertain whether it is continuing. Both parties agreed that this was intended to operate so that if horse riding was cancelled, for example, because it was raining, the applicant could make himself aware that that had occurred.
For other types of activity in relation to which the respondent must give notice, pursuant to order 2(a)(i)(b), the applicant will still have contact if notice is not given or the activity is cancelled. I have already indicated that I am satisfied that the notice provision in order 2(a)(i)(b) does not relate to horse riding. That is because horse riding is addressed specifically in order 2(a). Hence, once the applicant indicated that he would no longer take M to her horse riding lessons, the respondent was entitled to withhold contact altogether on those Saturdays. In those circumstances, the application asserting contravention of the orders fails.

The respondent’s understanding of the orders

If my interpretation of the orders is wrong I must consider the respondent's understanding of her obligations pursuant to the orders. Her understanding of their effect accords with mine. I am satisfied that she has a genuine belief as to her interpretation of the orders. I agree with the applicant that her willingness to give contact on the Saturday prior to the hearing should be viewed somewhat cynically. I accept his submission that it was conceded by the respondent because she thought that somehow it might be to her advantage in this hearing. It did not achieve that purpose.
Where a respondent to a contravention application asserts that they have misunderstood their obligation pursuant to the orders, they have an obligation to attempt to clarify the effect of the orders. A respondent, in the face of continuing dispute as to the effect of a contact order, for example, is not entitled to withhold contact on an unending basis waiting for the dispute to be resolved either by the applicant giving in or the Court determining the issue. In this situation a party has a positive obligation to take advice and to attempt to resolve the differing interpretation. In the same way that a party is not entitled to suspend orders for the asserted protection of a child interminably they must attempt to resolve the dispute and at least obtain legal advice about their obligations.
After about 4 weeks, when it was clear that the applicant's interpretation differed from the respondent's, the respondent had the obligation and opportunity to attempt to resolve the impasse. Not having taken steps to clarify her understanding of the orders, after about 4 weeks, if my interpretation of the orders is wrong from that point, the respondent was in breach of the orders.
The respondent said that she had always intended that the applicant could have contact from 10 am, even if the horse riding or other activity was not occurring. I do not accept her evidence. It is inconsistent with the conversations she had with the applicant. As well as inconsistent with the letter she attached to the front of the property when the applicant attended to collect M. He wanted contact to M. Had the respondent indicated, at any time to the applicant, that he could have had M from 10 am he would have taken it. With respect to the respondent, this is yet another instance where I am satisfied she gave deliberately misleading evidence.
If the applicant’s interpretation of the orders was correct after about four weeks of non-compliance the respondent’s misunderstanding would not have been a reasonable excuse. I contemplated whether I would have ordered that both parties attend a post-separation parenting programme. It seems to me that something major needs to be done to try and improve these parties' attitude to their shared responsibilities of parenting M. Circumstances from M's point of view will probably only become more difficult unless there is an improvement in the current poor relationship between her parents. Although this long after separation, one would have little hope that a post-separation parenting programme may improve things, I would have ordered both parties to attend a post-separation parenting programme arranged through UNIFAM.
In the event, the applicant has failed to prove that the order was breached.
For these reasons I make the orders identified at the start of this judgment.

The costs application

This is an application that the applicant pays the respondent costs of defending his contravention application. Section 117 of the Family Law Act 1975 provides that each party to the proceedings, under the Act, shall bear his or her own costs.
This is subject to sub-section 2, which provides that if the court is of the opinion that there are circumstances that justify it, in doing so, the court may, subject to sub-section (2A) make an order for costs. I turn to consider the matters contained in sub‑section (2A).
The respondent's financial circumstances are outlined in her affidavit. She receives child support of $353 per week and a social security payment of $136 per fortnight. She has returned to work part time as a counsellor for which she receives about $300 gross per week. The respondent lives in her own home, which is subject to a mortgage for which she pays $405 per month. She has modest savings. The applicant is in full time employment as a project engineer. He earns about $80,000 per annum. I do not have evidence about other aspects of his financial circumstances. In the circumstances the application of the subparagraph favours the respondent.
Subparagraph (b) does not arise.
Subparagraph (c) does not arise.
Subparagraph (d) - The applicant asserted that the proceedings were necessitated by the failure of the respondent to comply with orders made in May 2001. He has not proved his case, and subparagraph (d) does not therefore apply.
Subparagraph (e) - This is the gravamen of the respondent's case. She says that the applicant has been wholly unsuccessful in the proceedings. That is inarguably so. The application of the subsection favours the respondent.
Subsection (f) does not arise.
Subsection (g) - The applicant submits that before he commenced the proceedings he took legal advice in relation to them. He had assistance from his advisers in the preparation of his affidavit and his application. He started these proceedings for two reasons:
·It was a matter of principle; and
·he was confident that he could prove the contravention complained of.
He has been unsuccessful in doing so.
The respondent has incurred costs, which costs I am satisfied ought to be paid by the applicant. Her costs arise only as a consequence of resisting the application. Her defence of the application has been complete in the sense that the applicant was wholly unsuccessful. Before parties decide that they will bring to the court matters, which are prosecuted for the purpose of proving a point or establishing a matter of principle, they should be confident that the law will deliver the outcome they seek.
The outcome of the costs application may seem somewhat harsh to the applicant and I have some sympathy for the position that he finds himself in. However, he brought his application, he lost, and in my opinion the orders for cost should be made.
As to quantum, I am not persuaded that I should certify for counsel. Costs will be in accordance with the Federal Magistrates Court Rules.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate:
Date: 20 October 2003