Jenkins and Lloyd

[2017] FamCA 550

FAMILY COURT OF AUSTRALIA

JENKINS & LLOYD [2017] FamCA 550

FAMILY LAW – CONTRAVENTION – where two counts – where evidence does not support finding in relation to either – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Jenkins

RESPONDENT: Ms Lloyd

FILE NUMBER: MLC 2364 of 2007

DATE DELIVERED: 24 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE:

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Jenkins in person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms Lloyd in person

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the contravention application filed by the applicant on 13 June 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jenkins & Lloyd has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2364 of 2007

Mr Jenkins

Applicant

And

Ms Lloyd

Respondent

REASONS FOR JUDGMENT

1. A contravention of an order is defined in the Family Law Act 1975 (Cth) (“the Act”) in s 70NAC is established if and only if, relevantly in this case, the respondent mother is bound by the order of 9 June 2015 and she has intentionally failed to comply with, or made no reasonable attempt to comply with it. If the contravention is established, that is, the Court is satisfied that the allotted ordered time did not occur as defined by the order, an assessment must then be undertaken whether the respondent - in this case, the mother – had a reasonable excuse for that non-compliance.

2. Section 70NAE of the Act sets out the circumstances under which a person may be taken to have had a reasonable excuse. It provides a number of examples, none of which is more than a guide to the types of things that the Court should consider. They include, for example, not understanding the obligations of the order, believing on reasonable grounds that actions were necessary to protect the health or safety of either herself, in this case, or the child or any other excuse which the Court considers is such as justify her being so excused.

3. In this case, the absence of legal representation has meant that the Court has not had much more than a stream of consciousness from both parties who have been embroiled in litigation for the best part of 10 years.  The child, B, is 10. 

4. The starting point here is to consider the two allegations.  In respect of the first of the two, the respondent mother says that whilst the contact did not occur, she has a reasonable excuse and in the second, she denies that the breach occurred at all.

5. In respect of the first, the applicant alleges that the respondent refused to provide the child for his period of the Easter school holidays in 2017.  The second allegation is somewhat concerning because of its age.  It asserts that the mother failed to provide “normal access” for the date which he says was his entitlement under the order, namely, 7 October 2016. 

6. The first of the allegations is asserted to be a breach of paragraph 3(e) of the orders of 9 June 2015.  It cannot be because that relates to school holidays in 2015 only.  I think he means paragraph 3(i).  That reads “during all school term holidays in 2017 by agreement between the parties and failing agreement, the second half of all school term holidays in 2017 and each year thereafter”.

7. The second of the allegations is asserted to be a breach of paragraph 3(b).  It cannot be that either because it is related to alternate weekends commencing on 8 August 2015 which is then superseded by 3(c) or (d). 

8. Paragraph (c) began a rotation of Friday to Monday and 3(d) began a rotation of Thursday to Friday.  The assertion contained in the affidavit talks of the weekend, so it must relate to 3(c).  Inaccuracy has not caused more than inconvenience to the Court and no prejudice to the respondent mother because she is obviously living this cycle of contact and understands what is involved.

9. The onus is on the applicant to prove the contravention, but if the contact did not take place, the onus of establishing a reasonable excuse falls to the respondent.  In this case, it is unusual because the applicant says that he wants the mother punished and that that is the reason why he brought the contravention.  It may have been more sensible to have brought an application to rectify the orders of 2015. 

10. The 2015 orders are poorly drawn the blame for which can only fall on the relevant practitioners.  In reality, Mr Jenkins, who was unrepresented on the day of the hearing says that he was bullied into agreeing to the orders.  Even if that is so, he still signed up to the orders and the Court must now enforce its orders absent some other application.  The drawing of the orders also highlights the importance of the person typing and certifying their correctness.  That responsibility falls to the solicitor who draws the orders.  The Court’s policy is to seal the orders if they are certified as being correct and that happened here.

11. Paragraph 3 contains confusing punctuation and on a first reading, would suggest that upon a date arriving, the previous paragraph ceases.  That was obviously not intended by the parties.  In addition, the orders are silent on the issue of what happens to these weekdays and weekends during school holidays.  Some people might consider that common sense might apply, but the reality is after 10 years of litigation, that is unlikely here.  To that extent, if there is a contravention brought, then the party who brings it has to prove it strictly according to the order.

12. The evidence of the parties here is disputed.  In my view, the absence of clarity leaves the Court with two possible options.  First, common sense could be applied which would normally be that the term time provisions would be suspended during school holidays and then would resume as if it had not been suspended.  If it were otherwise, a parent could not go away on holidays.  The problem is whether it resumes as if not suspended, or whether it starts afresh, each term.  These orders are silent on that issue.

13. The second option is to say that the parties’ perception is reflected in the reality of what they have done.  I would be hesitant here to adopt that where they do not agree on virtually anything at all. 

14. The rules of the Court require the applicant to attach the order to the application.  That did not happen here.  But again, I accept there was just inconvenience to the Court and no prejudice to the respondent.  Indeed, it got worse than that because the respondent, who was not required to file an affidavit at all, nor is she entitled to do anything more than attend, filed an affidavit at the Court on the last occasion.

15. It is now suggested that she did not provide a sealed copy to the applicant.  Ironically, he seems to have photographed what he was given and then insisted that he get a stamped copy;  he handed back the document he copied.  Whilst the orders require service of their sealed copies, this case is about procedural fairness and natural justice.  I have no doubt that the applicant saw what the respondent had written and had time to digest and consider it. 

16. Rule 21.02 of the Family Rules 2004 requires the applicant to state whether a court has previously found the respondent has contravened the order without reasonable excuse.  The applicant is silent on that issue, so I have accepted there is no such assertion.  It is not the Court’s task to burrow into files to work out those sorts of matters, particularly in a case such as this where the disputes have been going on for years.  There are over 100 documents on this Court file.

17. The respondent was asked to indicate her position about the two allegations and I had indicated her position.  In other words, in respect to both allegations, the onus of proof falls to the applicant, save that, the onus falls on the respondent in respect of whether or not she had a reasonable excuse for the first of the allegations. 

18. The order itself, which was made by consent of the parties on 9 June 2015, points out the basis upon which the respondent says she has a reasonable excuse.

19. Bearing in mind these parties have significant conflict in their lives.  I am told there is an intervention order in existence.  Paragraph 6 of the 9 June 2015 orders takes on a significance in this case.  It reads: 

    All changeovers that do not occur at the child’s school are to take place at [C] Contact Centre … On any occasion when [C Contact Centre] is closed, changeover to take place at McDonald’s in [G Street, Suburb H], by way of the father parking outside the main entrance and the mother waiting inside the entrance door and the child walking to or from the father’s car provided that all times, the father is prohibited from getting out of the car or approaching or speaking to the mother in any manner whatsoever.

20. The mother’s evidence in this case is clear.  Indeed, it is unchallenged.  Nothing suggests that the contact centre was not open or indeed, was closed.  Quite the contrary.  The mother’s evidence is contained in a letter dated 12 January 2017 from the contact centre which made quite clear that the applicant did not want to use it anymore.  There might be a dispute in this case as to whether he was banned or whether he banned himself or whether he declined to use it anymore for whatever reason but the reality is that paragraph 6 of the orders requires that the parties attend at C Contact Centre unless it is closed. 

21. The venue under those circumstances would then be McDonald’s.  In this case, the mother attached to her affidavit, an email warning the father that she would not go to McDonald’s, but he simply ignored that.  As he has indicated in court today, McDonald’s is the venue and he will not go back to the contact centre because of his problems with them in the past.

22. Whilst the proof required of either party is not a strict test or standard, the Court is entitled to take into account that if one person unilaterally alters the order, they cannot allege a breach if that is not the position under the order.  There is no evidence that the contact centre was closed.  There is evidence here that the mother would not attend at McDonald’s and further, there is evidence that she told the applicant to sort out his problems with the contact centre.

23. If he has burnt his bridges, the only avenue for him is to seek an alteration of the orders to reflect what he wants.  In this case, the orders for contact at the contact centre were there for a good reason.  In her affidavit, the mother claimed that there have been countless antagonistic comments and threats of court action on a regular basis since the child was born.  She denied there were many Family Court appearances, many intervention order appearances and the recurring nature of this consistency in her view, was vexatious.

24. The approach of the applicant looks very close to that description.  Here however, it is for him to prove what he has asserted, namely, a breach of the wording of the order not what he would like it to be.  The contact centre at C Contact Centre was the appropriate handover place and he refused to go there.  He cannot complain that there has been a breach of the order as he has.  On that basis, the first allegation must fail. 

25. The second allegation is equally problematic because of the dispute about the dates.  There is silence in the order about when the holidays occur and more importantly, what happens to the week day contact.  I am not in a position to guess.  I can only look at what the parties have agreed and here they do not agree.  I have, however, endeavoured using a calendar to work out just what the correct week was. 

26. The suspension during school holidays which I would have considered appropriate would show that    7 October was not the applicant’s weekend – 14 October was.  If the holidays meant that the term time was then resumed as soon as the school started, it might be different.  But the applicant cannot unilaterally determine that.  I am, therefore, not in a position to find that the second allegation has been proved to any satisfaction, let alone on the balance of probabilities.  The second application must fail as well.  On that basis, both allegations have been unsuccessful.  The contravention application on 13 June 2017 is dismissed.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 24 July 2017.

Associate: 

Date:  2 August 2017