JH and MH - [2007] FMCAfam 796

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JH & MH

[2007] FMCAfam 796

FAMILY LAW – Contravention application – standard of proof – when criminal standard applicable.

Family Law Act 1975, ss.65M, 65N, 70NAC, 70NAD, 70NAE, 70NAF, 70NFB and Division 13A

Briginshaw v Briginshaw (1938) 60 CLR 336
Stevenson v Hughes (1993) FLC 92-363

Applicant:

Respondent:

File Number:

PAM4004 of 2006

Judgment of:

Lindsay FM

Hearing dates:

16 & 19 April 2007

Date of Last Submission:

2 July 2007

Delivered at:

Adelaide

Delivered on:

11 October 2007

REPRESENTATION

Counsel for the Applicant:

Mr Battley

Solicitors for the Applicant:

K R Lawyers

Counsel for the Respondent:

Mr Thistleton

Solicitors for the Respondent:

Karen L. Haga & Associates

ORDERS

The Court finds that the mother contravened without reasonable excuse the Order of the Court made on 27 October 2006 (paragraph 1(a)) on 28 October 2006 (twice), 5 November 2006 and 11 November 2006 as alleged in an Application filed by the father on 20 December 2000.
Further consideration of the application of Sub-Division E or Sub-Division F of Division 13A of Part VII of the Family Law Act 1975 and of the question of penalty is adjourned to a date and time to be fixed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

PAM4004 of 2006

Applicant

And

Respondent

REASONS FOR JUDGMENT

On 16 April 2007 the mother entered pleas of ‘not guilty’ in relation to five separate counts of having breached orders made by this Court by consent on 27 October 2006.
That Order relevantly provided that the three children of the marriage live with the father:
a)until 17 November 2006:
i)from the beginning of the scheduled extra-curricular activities each alternate Saturday to the end of such activities, commencing on 28 October 2006, with the children to be returned home for lunch between activities; and
ii)from 10am to 4pm each alternate Sunday, commencing 5 November 2006; and
b)between 17 November 2006 and 28 December 2006, from 6pm each alternate Friday to 6pm the following Monday, commencing Friday 17 November 2006.
The three children of the marriage are a daughter, NMH, aged nine and a half at the time of the alleged contraventions; a daughter, DRH, aged approximately seven and a half years at such time; and a son, EH, aged approximately four and a half years at such time.
The father filed an affidavit in support of his application and affidavits were filed by two other witnesses. The father was cross-examined but the witnesses were not.
The mother relied upon an affidavit sworn on 15 December 2006. That was an affidavit filed in support of an application to vary the orders. No issue arose as to the fact that such affidavit had been filed pertaining to the subject contraventions prior to her pleas having been taken. During the course of the trial reliance was also placed on certain portions of an affidavit filed by her on 25 October 2006, ie. prior to the making of the subject orders. Those portions of that affidavit were admitted to rebut a suggestion that allegations of physical misconduct during the marriage relating to the father had been recently invented.
She also relied upon an affidavit of one RS and adduced some oral evidence from him. Both the mother and her witness were cross-examined.
When the hearing concluded on 19 April 2007 I ordered and subsequently received written submissions from each of the counsel for the parties.
These proceedings are governed by Division 13A of the Family Law Act 1975 (the “Act”). Section 70NAC of the Act describes what it means for a person to be taken to have contravened an order. It provides that a person must intentionally fail to comply with the order or have made no reasonable attempt to comply with the order.
The various provisions of Division 13A relating to the imposition of penalty apply only if the contravention is proven to have occurred and to have occurred without the contravener having a reasonable excuse for not complying with the order.
‘Reasonable excuse’ is defined by s.70NAE of the Act. Relevantly that section provides:
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3) ...
(4)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a)the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
The standard of proof is on the balance of probabilities (see s.70NAF of the Act) unless I propose to impose specific penalties arising from the matter being dealt with under Sub-Division F of Division 13A of Part VII of the Act (more serious contravention) in which case the criminal standard applies. It is a curious circumstance to have the burden of proof determined by the nature of the penalty, especially when the findings stage and the penalty stage of a contravention proceeding are two separate processes. Even after a finding of contravention, an opportunity for submissions needs to be given to a respondent before penalty is imposed. The legislation invites a judicial officer to make the finding of guilt on the civil standard and then determine after hearing submissions on penalty whether the criminal standard has been met. Unless the more serious penalties are to be imposed a finding of guilt on the criminal standard is otiose. It would seem to be a strange business to be reconsidering the evidence after hearing submissions on penalty to determine whether the evidence satisfied the criminal standard but that is something, it seems to me, that is going to happen necessarily very frequently. The matter is further complicated by the circumstance that the decision on whether the criminal standard should apply is actually a two stage process. This is so because the more serious penalty provisions will only apply if I have determined that the contravention can be characterised as a more serious contravention under sub-division F. In the case of a first offender that will only arise if I am satisfied that the person has behaved in a way that showed a serious disregard of his/her obligations under the order. Again, it seems to me that it is necessary to provide an opportunity for counsel to make submissions about that matter in the light of the findings relating to the contravention itself. Consideration of whether the evidence has satisfied the criminal standard will only become necessary if there has been a serious disregard and if the court chooses one of the more serious penalty options. So for example if I made a finding of contravention on the civil standard and decided to impose a bond (s.70NFB(2)(b)) no occasion for consideration of the criminal standard would arise, even though I was satisfied as to there having been a serious disregard. In that case I would have been obliged to make my finding of serious disregard only on the civil standard. However, if having found a serious disregard I proposed to impose the more serious penalties then it seems to me that the criminal standard must be applied both to that exercise and the serious disregard exercise because those penalties are conditional upon my having found the serious disregard. It must be doubted whether the legislature intended such a complicated manner of implementing the provisions as to standard of proof, but such are the provisions and they must be applied.
There was no controversy during the course of the hearing that the father had attended at the former matrimonial home on the relevant days and at the relevant times.
The charges relate to three separate days. A single count in relation to a fourth day (the 17 November 2006) was not proceeded with by the husband by the time that written submissions were filed by his counsel.
On 28 October 2006 (which was a Saturday), the father alleges that none of the children spent time with him on that day. There are two counts for that day because the order is taken by the father to include an obligation to facilitate the time-spent both before and after lunch.
The third charge relates to 5 November 2006 (which was a Sunday) but relates only to the daughters. The next count relates to 11 November 2006 (which was a Saturday) and relates only to the daughters.
I should note that the charges are framed and the trial proceeded as if the orders were orders that provided for the father to spend time with the children. They are in fact orders that provide for the children to live with the father at certain times. No point was taken in relation to this discrepancy. Nothing turns on the distinction in terms of the legislative provisions and the obligations created by the orders. The provisions of s.65M and s.65N are taken to create obligations which become part of live-with and spend time-with orders respectively (see s.70NAD).
Live-with orders create obligations as follows (s.65M):
(2)A person must not, contrary to the order:
(a)remove the child from the care of a person; or
(b)refuse or fail to deliver or return the child to a person; or
(c)interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order.
Spend time-with orders create obligations as follows (s.65N):
(2)A person must not:
(a)hinder or prevent a person and the child from spending time together in accordance with the order; or
(b)interfere with a person and the child benefiting from spending time with each other under the order.
It is difficult, given those provisions to see how materially different the evidence led in a contravention of a “live-with” order would be from that led in respect of a contravention of a spend-time order. All of the obligations created by s.65N are either the same as or are necessarily latent in s.65M.
I am satisfied on the balance of probabilities that the mother has breached the relevant order on each of the four occasions alleged without a reasonable excuse. In applying the civil standard I have given consideration to the matters identified by Dixon J (as he then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at a common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect references.
There were some deeply unsatisfactory aspects of the evidence of the wife. I will deal with my concerns about her evidence generally before turning to the specific findings as to each separate contravention. I find that she is very reluctant to provide an opportunity for the children, especially the girls, to relate to the father. Her antagonism or feelings of betrayal by the father inform the way in which she deals with his relationship with the children.
She tried to paint the failure of the children to attend upon time spent with their father as their choice. I found no evidence to suggest that the children themselves would not choose to attend upon their father if she permitted them to do so. She attempted to suggest that the reason they made their choice was that they were fearful of him. She gave their fear of him as their reason for not attending. She described the sort of fear the children had of their father at page 38 of the transcript:
He has a fly swatter in the house, he has to have authority with that fly swatter. He hits them over the head with that recklessly, all over the body. He uses his fists upon the children, he breaks furniture, he punches walls. They have seen so much rage. He rampages the house when he doesn’t get his way, he threatens to break televisions and other pieces of furniture. Concerning emotional abuse, simple things. When he comes in from work, you go running towards him to greet him from home, “Don’t come near me, I’ve got my best suit on. Don’t touch me, I’ve only got – these are my best clothes”. If you don’t go towards him to greet him, “Oh, a man goes to work and this is what he comes to, nothing”. If he says this is a particular colour and we say no, it’s a different colour, no, you’ve got to agree to what he says.
I had great difficulty in believing the wife that any of those events took place or that, if they did, she had not grossly exaggerated their effect. She was simply not convincing in giving this evidence and other aspects of her evidence also served to undermine her credibility in relation to her account of these events. I did not find her explanation as to why she entered into consent orders on the 27 October 2006 in the face of these alleged behaviours on the part of the husband at all convincing. Similar concerns arise in relation to her consent to a modified set of time spent orders (providing for handover at a contact service) in February of 2007. On two occasions she has consented to orders notwithstanding her stated belief that the children are gravely fearful of their father who has behaved during the marriage in the ways she has described. I do not accept the children are fearful of their father for these or for any other reasons. I find that they have been confused and distressed at the pressure placed upon them by their mother.
She gave evidence that the child NMH hated her father and said that NMH had told her many times that she hated her father. She said that NMH did not even like to engage in conversation regarding her father unless she is forced to do so at a contact centre. The mother made it quite clear she believed that NMH hated her father. She also believed that DRH hated her father. Her views in relation to these hatreds of their father held by the girls only emerged during cross examination and even then reluctantly. If it was a view that was honestly held by her it would have featured, I would have thought, in affidavits filed by her before both the October orders and the February orders and it does not. The highest she was prepared to put it in affidavit form was that NMH had said she hated her father. I did not accept her explanation as to why her belief is not referred to in the affidavits. She tried to say that it was not relevant to the applications before the court on those occasions. That cannot be the case.
There was an air of complete artificiality about her evidence as to why NMH ceased to attend upon time spent after September of 2006 (when he took her to the beach).
In cross examination the mother did not give the impression of attempting to answer the questions fully and frankly. She was evasive at times and at other times disingenuously tried to give an impression of not understanding the question or the thrust of the question.
On the other hand the general impression I formed of the father was that he was genuinely attempting to accurately describe his experiences on the four occasions. He also impressed as having an insight into the difficult circumstances the mother had created for the children and I was confident that he had tried to act in a way to minimise the impact of the children’s participation in these events on them.
The father’s affidavit of the 30 December 2006 set out in some detail his account of events. He also relied upon his affidavit of the 16 February 2007 filed in response to an affidavit of the mother. That affidavit of the mother was filed on the 15 December 2006 and she relied upon it.
On the 28 October 2006 the father attended at the home at approximately 9:30 am. He had telephoned the house beforehand and spoken with DRH. He had been told by her that her mother was not allowing her to go with him. He arrived at the home a short time later. He appears to have remained for between fifteen and thirty minutes and spent that time trying to persuade the children to come with him. The mother spent part of this time on the phone to her lawyer. He says that the mother told him on his arrival that the children did not want to go with him. He said that NMH said to him that she could not go with him. He was unable to persuade them to attend. He said that the mother did nothing to encourage them to go and eventually told him that if he did not leave she would seek an Apprehended Violence Order. The circumstances were clearly tense and awkward for the children and the parties.
The mother’s counsel quite properly concedes that the mother was under a duty to take an active role in encouraging the departure of the children with the father. (See the decision of Nygh J in Stevenson v Hughes (1993) FLC 92-363).
As to the events of the morning of the 28 October, I accept the father’s account of them. The mother did nothing to assist in the departure of the children. The way in which the mother spoke to the father in the presence of the children and her passivity during the father’s difficulties in having the children leave with him amount in my view to a clear intention not to comply with the order. In her defence, the mother says that she did all that she was able to do. Her counsel, in a careful and thoughtful submission, suggested that the evidence of the father’s own failure to persist in removing the children from the home in the circumstances presented to him are an index of the difficult dynamic in the family at the time. The suggestion was that neither parent could really do anything to ensure that the transition to the father took place. The problem with that submission is that I think the mother had considerably more leverage to bring to bear in relation to the children and the impression I formed on the evidence was that from whatever had passed between the children and the mother prior to the father’s arrival, the effect of it was to present the refusal of the children to attend with him as a fait accompli. In a very real sense the mother acted in a way that ensured the children knew they did not have her permission to attend with their father.

An additional defence is raised by the mother in respect of the 28 October. She said that as far as EH was concerned she did not understand the orders to apply in relation to him on the 28 October. She said as far as the Saturdays were concerned, the extra curricular activities referred to in the order were only engaged in by the girls. So that her understanding was that on Saturdays until the 17 November only the girls were obliged to attend. When EH did attend on the 11 November he attended, according to the mother, as an act of grace on her part. But her understanding is contrary to the plain text of the order. The obligation related to all three children on each day even if for a part of the time that the order operated, the commencement and conclusion were defined by the activities of only two children. I am not satisfied she misunderstood the obligations as they related to EH. Her evidence on this topic was lacking in conviction and I did not accept it.
The father attended at the home again in the afternoon. The wife opened the door and EH came outside to the father and told him that his mother had said that “you are not allowed to come here … why do you want to take my sisters away”. A conversation with DRH followed. (It had been the father’s birthday on the 27 October. DRH said that they were not allowed to call him.) It was clear the children were not permitted to attend with him. That was the understanding the children had. I find that their understanding was a result of what their mother had said to them. The father’s failure to persist in the teeth of the children’s predicament is understandable. His decision does not cause me to depart from my view that there was no real attempt by the mother to comply with the order. The mother knew that facilitating physical proximity between the father and the children would not be sufficient in itself to enable the departure of the children to occur. She was right about that. It is unrealistic to take the view that he had a meaningful opportunity to exercise parental responsibility on the day. His time with the children took place in the context of it being at the home they shared with their mother and the close physical proximity of the mother and her having made plain to them that she was withholding her approval or permission for them to attend with their father.
On the 5 November 2006 the transaction between the children between the children and the father at the door of the children’s home appears to take place without the mother being physically proximate in a way that was not the case on the 28 October. It is true that the father makes his own decision to leave without the girls (EH went with him) after having had an opportunity to speak with them. It is also true that he does not directly instruct them to leave with him. But his assessment of the appropriate way for him to behave takes place against the background of NMH having raised with him financial issues (see paragraph 24 of his affidavit of the 20 December 2006). EH told him that his sisters were not allowed to go and that their mother had said that he did not like them. I accept fully the father’s evidence as to these matters. I do not accept the mother’s account of what the father said to the girls on this day. I accept his denials as to those matters. Even the mother’s own account (see paragraph 15 of her affidavit of the 15 December 2006) is silent as to any contribution she made to the state of mind of the girls as revealed by the conversation she alleges. She seems to think that it is sufficient to aver that the girls state that they are not coming with the father without providing an explanation as to what she did to encourage them. I take into account the other aspects of her evidence referred to in this judgment in evaluating her evidence as to the events of the 5 November 2006. I find that she intentionally failed to comply with the order on that day as it related to the girls. I take into account that EH was permitted to attend (albeit on the basis that she did not think the order extended to him on that day). That might be suggestive of the individual children having an autonomy with respect to whether they attended. But it is just as likely to be a function of that fact that her relationship with the girls is such that they are more sensitive and accommodating of her own wishes and anxieties as they relate to their father, than is their brother.
I am not persuaded that the attendance of another person with the father on this day materially affected any of the events.
On the 11 November 2006, the father attended at the home at 10am. He says that he was greeted at the door by the wife. EH came to him. He called out to the girls but they did not respond. Once again, EH told him that they were not allowed to go with him. He managed to speak briefly with DRH who said that she was going to her class with her mother. Despite indicating her disapproval of his conduct in staying at the home for as long as he did, the mother allows the father to take EH with him and he departs with EH.
When he returns with EH later in the morning he manages to speak with the girls and they indicate that they will attend their classes with him in the afternoon.
When he is on his way in his car to the home just before 1:30pm he receives a call on his mobile telephone from DRH who tells him she has changed her mind and will be going to the class with her mother. He tells her he will be arriving in five minutes.
When he arrives, he has the opportunity of speaking with the girls at the door but they refuse to go with him.
He concedes that the mother actually used words to the girls indicating on this afternoon that they had to attend with him. She alleges that she said:
Please go. We have discussed this and you need to spend time with your father.
It is not entirely clear whether she says this in the morning or in the afternoon. In any event the father conceded in cross-examination that she used those words. However the meaningfulness of the words and whether or not they were a perfunctory rather than a real encouragement to the children must be evaluated against the whole of the evidence as to the behaviour of the children on that day and also taking in account what had transpired on the previous occasions and also taking in account all of the other aspects of the evidence of the parties discussed herein. I am not satisfied that the mother conducted herself on either the morning or the afternoon of the 11 November in a way that constituted a discharge of her obligations to facilitate the transition of the girls to their father. I find that the girls were still operating under the belief that their mother in a very real sense was not permitting them to attend with their father.
For the foregoing reasons, I am satisfied on the civil standard that the mother contravened the orders without a reasonable excuse on each of the four occasions alleged. I consider that it is appropriate to hear submissions from the parties in the light of these findings as to whether or not the contraventions constituted a serious disregard of her obligations or whether there is any other requirement for dealing with them as the more serious category of contravention. As discussed above, the evaluation of the evidence according to the criminal standard of proof may be required in certain circumstances but I will need to give the parties an opportunity to address me about that.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Lindsay FM

Associate: Ms N. Julius

Date: 11 October 2007