Jarratt & Eastmond
[2024] FedCFamC2F 850
•14 June 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jarratt & Eastmond [2024] FedCFamC2F 850
File number(s): NCC 2802 of 2023 Judgment of: JUDGE GLASS Date of judgment: 14 June 2024 Catchwords: FAMILY LAW – CONTRAVENTION – oral reasons – where contraventions established – where primary orders are eight years old – where consequential relief sought is inappropriate Legislation: Family Law Act 1975 (Cth) ss 70NAC, 70NAE Cases cited: Behn & Ziomek [2015] FamCA 1185
Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655
Harvey & Harvey [2018] FamCA 516
Manolis & Manolis [2022] FedCFamC1F 443
Stavros & Stavros (1984) FLC 91-562
Division: Division 2 Family Law Number of paragraphs: 40 Date of hearing: 11 June 2024 Place: Melbourne Counsel for the Applicant: Mr Allen Solicitor for the Applicant: Koulouris & Associates Counsel for the Respondent: Mr Myles Solicitor for the Respondent: Victoria Legal Aid ORDERS
NCC 2802 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JARRATT
Applicant
AND: MR EASTMOND
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
14 JUNE 2024
UPON THE COURT FINDING THAT:
A.The Respondent contravened parenting orders made 28 April 2016 on five occasions in July and August 2023.
THE COURT ORDERS THAT:
1.The Contravention Application filed 8 September 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE GLASS:
By way of application filed on 8 September 2023, Ms Jarratt alleges that Mr Eastmond has contravened parenting Orders made 28 April 2016 in relation to their son, X, who will turn 16 this year, on five occasions. Other counts pleaded in the application were struck out by Order dated 17 November 2023 or withdrawn at the commencement of the hearing.
Ms Jarratt alleges contravention of Orders that provide for X to spend time with his father during school terms on alternate weekends from after school Thursday until before school Monday and after school Thursday until before school Friday in the alternate week. X is to otherwise live with Ms Jarratt.
Mr Eastmond denies the allegations. Alternatively, he contends that he has a reasonable excuse for the contraventions.
CONTRAVENTIONS
It is common ground that the application falls to be determined by reference to Division 13A of Part VII of the Family Law Act 1975 (Cth) as it existed prior to 6 May 2024.
Pursuant to section 70NAC of the Act, Mr Eastmond is taken to have contravened the Orders if he has intentionally failed to comply with them or made no reasonable attempt to do so. Ms Jarratt bears the onus of proof that any non-compliance with an order constitutes a contravention as so defined.[1]
[1] Behn & Ziomek [2015] FamCA 1185 at [14].
The making of reasonable efforts to comply with the order requires Mr Eastmond to do more than merely stand by and do nothing to encourage X to return to his mother.[2] The obligation is not to remain merely passive.[3] It requires a positive application of parental authority. Parents have obligations to ensure, as far as possible, compliance with orders.[4] How a parent discharges the positive obligation to encourage a child to stay with a parent varies in accordance with the age and maturity of the child concerned.[5]
[2] Stavros& Stavros (1984) FLC 91-562 at 79,539.
[3] Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655 (“Elspeth & Peter”) at [25].
[4] Elspeth & Peter at [25].
[5] Harvey & Harvey [2018] FamCA 516 at [71].
Section 70NAE of the Act provides a non-exhaustive definition of reasonable excuse. That definition includes where Mr Eastmond believed on reasonable grounds that not allowing X and Ms Jarratt to spend time together was necessary to protect the health and safety of a person, and the time they did not spend together was no longer than necessary to protect that health and safety.
Mr Eastmond bears the onus of establishing any such reasonable excuse.[6]
[6] Manolis & Manolis [2022] FedCFamC1F 443 at [19].
By Count 1, Ms Jarratt alleges that Mr Eastmond refused to allow X to return to her care after his time with his father on Monday, 24 July 2023.
On that day, X did not return to Ms Jarratt’s care at the end of the school day. At 3.07pm, Mr Eastmond sent Ms Jarratt a message in the following terms:
[X]’s coming to my place, he will be staying at my place more often from now on. You have created an impossible situation for him and I. Having him labelled special needs was the last straw on the back of a very long list of extreme living conditions. Iv told him to switch his phone off for the night so you can process this change without creating a stressful situation for all.[7]
[7] Affidavit of Ms Jarratt filed 15 May 2024, Annexure C.
Ms Jarratt sought to make arrangements for X’s return to her by public transport, which were initially ignored by Mr Eastmond. It is common ground that X did not thereafter return to his mother in accordance with the Orders.
By Count 2, Ms Jarratt alleges that Mr Eastmond refused to allow X to return to her care after his time with his father on Monday, 7 August 2023.
By Count 3, Ms Jarratt alleges that Mr Eastmond refused to allow X to return to her care after his time with his father on Monday, 21 August 2023.
By Count 4, Ms Jarratt alleges that Mr Eastmond refused to allow X to remain in her care on Monday, 31 July 2023, in circumstances where X’s time with Mr Eastmond was not due to commence until after school Thursday in that week.
By Count 5, Ms Jarratt alleges that Mr Eastmond refused to allow X to remain in her care on Monday, 14 August 2023, in circumstances where X’s time with Mr Eastmond was not due to commence until after school Thursday in that week.
In relation to all five counts, it is common ground that X was living with his father at the times alleged, contrary to the Orders providing for him to spend more limited time with his father.
Mr Eastmond gave oral evidence that X generally conveys himself to his father’s home on public transport. It was not suggested to Mr Eastmond that he had, on any of the occasions pleaded, collected X from school or arranged for someone else to do so on his behalf. Even if Mr Eastmond could not recall how X came to his home on particular days, the evidence does not satisfy me that X was collected by his father or an agent on his behalf on the relevant days.
Mr Eastmond gave evidence that the letter of the law would have him drive X back to his mother’s house or ring her when X was at his home at a time he was supposed to be with Ms Jarratt. There is no evidence that he took either of those steps on any of the five occasions pleaded in this application. He gave oral evidence that the reason he did not put X in the car and take him back to his mother’s was because he loves X, and X wanted to stay with his father. Mr Eastmond denied that he had ever told X he needs to go home to his mother’s, although he did say that they had discussed it.
I am not satisfied that Mr Eastmond made any reasonable attempt to comply with the Orders. He applied no positive parental authority to encourage X to return to his mother’s home in accordance with Court Orders.
I find the five contraventions established.
Mr Eastmond submits that he had a reasonable excuse for contravening the Orders. It is not suggested, however, that the contraventions were necessary to protect health and safety. Rather, it is suggested there is a reasonable excuse because X was acting of his own volition. That suggestion is inconsistent with the requirement imposed to make reasonable attempts to comply with the Orders, including through the positive application of parental authority. I am not satisfied that a child acting of their own volition amounts to a reasonable excuse in the circumstances of this case.
Mr Eastmond gave evidence that he thought X might have been disappointed if his father took him back to his mother’s home, contrary to his expressed desire to stay with his father. I also do not accept that the prospect of a child being disappointed amounts to a reasonable excuse for the contravention of the Court’s Orders.
Mr Eastmond referred to the absence of evidence as to how difficult it would have been for X to be returned to his mother’s care. I am not satisfied a reasonable excuse is thereby established. Mr Eastmond, himself, gave evidence that he thought X would understand returning to his mother was the right thing to do.
Mr Eastmond also gave evidence that the obligation that fell on him was to file an application to vary the Orders. He did not do so when he sought to change the arrangements to include an additional Wednesday night in October 2022, nor when X commenced living with him for 11 nights per fortnight in July 2023 or, indeed, at any subsequent time.
Mr Eastmond also refused an invitation to participate in a child-inclusive mediation, which would have afforded X an opportunity to have his views independently assessed.
I am not satisfied that Mr Eastmond has a reasonable excuse for contravening the Court’s Orders.
CONSEQUENCES
Ms Jarratt seeks that Mr Eastmond be placed on a good behaviour bond, including to comply with the Court’s Orders, and that there be a suspension of X’s time with his father for a period of four weeks. She submits that the Orders must be enforced, absent any unacceptable risk to X being demonstrated or some other good reason in X’s best interests for not enforcing them.
As a general proposition, Courts are not compelled to enforce their orders. Enforcement of orders is always a matter of discretion.
Here, the Orders that Ms Jarratt seeks to enforce are eight years old. They were made when X was seven years old. As I have already referred to, he will turn 16 this year.
The evidence does not now satisfy me that those Orders remain in X’s best interests and should therefore be enforced.
Since October 2022, X has been spending additional time with his father on Wednesday nights. That arrangement was implemented with Ms Jarratt’s acquiescence. Mr Eastmond gave unchallenged evidence that the change was X’s idea and that it was an arrangement that X was happy with. Ms Jarratt gave unchallenged oral evidence that X told her he didn’t see anything wrong with that proposal. She was non-responsive to a question put to her that the reason X wanted to spend more time with his father was because he enjoyed it.
In relation to X commencing to live primarily with his father in July 2023, Mr Eastmond gives unchallenged evidence that X then told him he wants to spend more time with his father for reasons that included him having a better life with his father and it being a family environment. He also gave unchallenged oral evidence that X’s wishes are to spend more time with his father.
I place no weight on Ms Jarratt’s oral evidence that X felt coerced or pressured to spend time with his father. The example she gave of X understanding something bad would happen to his father was in February 2024, long after the extant arrangements for X had commenced. She conceded that X had not told her that his father was not allowing him to return to his mother’s home.
I also do not accept that Ms Jarratt’s oral evidence that X never came to her and asked for more time with his father without his father’s prompting, suggests that Mr Eastmond’s unchallenged evidence about X’s views can be rejected.
Mr Eastmond’s evidence that X essentially conveys himself to his father’s residence each afternoon was also unchallenged. X has accordingly, for nearly 12 months, consistently taken himself to his father’s house each afternoon, rather than returning to his mother’s.
Certainly, questions are raised by the evidence as to which of X’s parents is more capable of meeting his needs, including those needs which have been assessed by a speech pathologist in late 2021.
However, I am not now satisfied that X’s best interests are served by returning to an arrangement whereby he lives primarily with his mother, contrary to his expressed views at the age of nearly 16, which views are corroborated by his repeated decision to go to his father’s home each afternoon.
For those reasons, I am not satisfied that orders should be made to ensure compliance with the Court’s 2016 Orders. Both the imposition of a bond and a suspension of X’s time with his father are inconsistent with that conclusion.
Ms Jarratt sought no alternative relief by way of consequence for the contraventions I have found established.
In the particular circumstances of this case, I am not satisfied that any consequence should follow from the contraventions which have been established to my satisfaction.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Glass. Associate:
Dated: 14 June 2024
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