Kalant and Jordain (No 3)

[2020] FamCA 577

FAMILY COURT OF AUSTRALIA

KALANT & JORDAIN (NO. 3) [2020] FamCA 577

FAMILY LAW – ORDERS – Alleged contravention of parenting orders – absence of reasonable excuse is not an element of a contravention – significance of reasonable excuse – pleading contraventions – where proceedings had been adjourned multiple times – where Mother absented herself from proceedings – proceedings resumed on an ex-parte basis – risk of injustice in ex parte proceedings – risk of injustice where a party refuses to participate in proceedings after being given the opportunity to do so – evaluation of contravention applications – burden of proof for reasonable excuse – Mother previously dealt with for contraventions – not shown that the contraventions should be dealt with as less serious contraventions – more serious contraventions

Family Law Act 1975 (Cth) ss 70NAF, 70NFA(3)(a), Subdivision E

APPLICANT: Mr Kalant

RESPONDENT: Ms Jordain

FILE NUMBER: PAC 2727 of 2015

DATE DELIVERED: 17 July 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 10 July 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Bainbridge

SOLICITOR FOR THE RESPONDENT: Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Burgess

Orders

1. On 10 December 2019 Ms Jordain contravened Order 8(b) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to facilitate telephone communication between X and the Father;

2. On 12 December 2019 Ms Jordain contravened Order 8(b) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to facilitate telephone communication between X and the Father;

3. On 13 December 2019 Ms Jordain contravened Order 6(g) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to allow X to spend time with the Father;

4. On 24 January 2020 Ms Jordain contravened Order 6(j) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to allow X to spend time with the Father;

5. On 4 February 2020 Ms Jordain contravened Order 8(b) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to facilitate telephone communication between X and the Father;

6. On 6 February 2020 Ms Jordain contravened Order 8(b) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to facilitate telephone communication between X and the Father;

7. On 11 February 2020 Ms Jordain contravened Order 8(b) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to facilitate telephone communication between X and the Father;

8. On 13 February 2020 Ms Jordain contravened Order 8(b) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to facilitate telephone communication between X and the Father;

9. On 18 February 2020 Ms Jordain contravened Order 8(b) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to facilitate telephone communication between X and the Father;

10. On 21 February 2020 Ms Jordain contravened Order 6(k) of the orders of  Judge Tonkin of 5 October 2018 in that she failed to allow X to spend time with the Father.

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 Jordain & Kalant 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

FILE NUMBER: PAC2727/2015

Mr Kalant

Applicant

And

Ms Jordain

Respondent

REASONS FOR JUDGMENT

Introduction    

1. The Father filed a Contravention Application on 20 December 2019, a Contravention Application on 5 February 2020 and a Contravention Application on 2 March 2020 alleging that the Mother had, on three occasions, breached Orders made by Judge Tonkin dated 5 October 2018.  These orders regarded time spent with the Father and telephone communication with the child, X.

Litigation history

1. A Final Hearing in this matter took place in the Federal Circuit Court on 24 – 25 July and 23 August 2017, followed by Interim Orders being made pending a decision, dated 23 August 2017. 

2. Thereafter and prior to Final Orders being made, the matter was reopened on the application of both parties, being further heard on 1 – 2 August and 6 September 2018.  Final Orders were delivered on 5 October 2018.

3. As noted above, from December 2019 through to March 2020 the Father filed a series of contravention applications.  The first of these was set for hearing on 23 January 2020, where the Mother applied for and was granted an adjournment.  The matter was listed for case management on 26 February 2020 and the Mother was required to appear in person.  She did not do so, attending by telephone. 

4. The proceedings were listed for hearing to occur on 16 April 2020, by which stage the March contraventions had been added.  The Mother was directed to file any further adjournment application by 9 April 2020, and advised that she would be permitted to lead oral evidence.

5. On 16 April 2020, the Mother initially refused to appear (by telephone), then subsequently joined by telephone.  The matter was again adjourned, this time to 8 May 2020 for directions.  The Mother failed to appear, and the proceedings were listed for hearing to occur on 22 May 2020, with any adjournment application to be filed by the Mother by 15 May 2020.  The Mother was directed to appear in person.

6. On 21 May 2020, the Mother filed an application to adjourn the proceedings which was refused on 22 May 2020, with the hearing commencing but not completing due to restrictions in the duration of hearing imposed by the COVID-19 pandemic. 

7. On this occasion, the Mother was informed of the allegations as set out below, and asked whether she wished to admit or deny the allegations.  In doing so, the Mother was advised that, despite each allegation being qualified by the phrase “without reasonable excuse”, the Mother’s admission or denial was taken as only relating to whether she had contravened the order, not with whether she accepted that it was without reasonable excuse.  The contraventions alleged were amended to remove the phrase “without reasonable excuse”.

8. Accordingly, where the Mother admitted a contravention she reserved her position in relation to reasonable excuse.  Her admissions are recorded below at the recitation of each of the contraventions.

9. It is perhaps important to observe at this stage that the presence of a reasonable excuse does not act as a defence to a contravention, and the absence of a reference to reasonable excuse is not a deficiency in the elements that comprise a contravention.  Rather, reasonable excuse qualifies the responses that a court may impose following a finding of contravention.  By way of illustration, Subdivision D deals with the finding of contravention separately from the finding of reasonable excuse, and the finding of reasonable excuse qualifies the available responses by the Court.  This outcome is to be held in contrast to Subdivisions E and F which deal with contraventions where there is not a reasonable excuse.

10. It is neither necessary nor desirable for an allegation of contravention to be styled as “without reasonable excuse”.  Rather, reasonable excuse is a matter to be established to the civil standard by a person against whom a contravention has been proven.

11. The incomplete proceedings were adjourned to 28 May 2020, and the Mother was directed to attend in person.  On 28 May 2020, the proceedings did not go ahead as I fell ill, and were administratively adjourned to 5 June 2020. The Mother failed to appear on that occasion and the proceedings were adjourned, with a direction that the Mother was to attend in person, to 10 July 2020.  The Mother was directed to file any adjournment application by 3 July 2020.

12. On 10 July 2020, the Mother attended court, seeking a further adjournment on the basis of medical issues.  Although not filed in accordance with directions, the application for adjournment was heard, but refused, with reasons being given.  The cross-examination of the Father by the Mother recommenced.

13. Shortly thereafter, the Mother, on speaker phone, called for an ambulance to attend the court.  The Mother was warned that should she leave the proceedings, they would continue in her absence. 

14. During the cross-examination, which took place with the Mother in the courtroom and the Father appearing by video link, the Mother made a series of allegations regarding the Father’s conduct in the video link.  The context of those allegations was that the video link set up in Court in the Registry on that occasion comprised a large and conspicuous television screen on the bench facing the bar table, on which the Father appeared.  It was clear that the Mother was able to see the Father on said screen.  It was equally clear, by virtue of its positioning, that I could not see the Father on that screen.  The Mother, in a heightened tone, part way through her cross-examination, asserted that I could not see the Father, and accordingly could not see the manner in which he was behaving toward her on the screen.  The Mother’s criticism of the Father’s appearance and demeanour, and my inability to see it, continued in a heightened tone for some time.

15. In a short lull in the criticism, I advised the Mother that the Father was shown on another screen on the bench, directly in front of me, and that her criticism of the Father was unfounded.

16. Shortly thereafter the ambulance attended.  The Mother left with ambulance staff.

17. It may be observed that conducting a matter on an ex parte basis is highly undesirable.  Such proceedings carry risks of doing injustice to a party who is not participating in the hearing.  Accordingly, they should be approached with great caution and even reluctance.  However, where a party, although given full opportunity to do so, refuses to participate in the hearing of the matter, seeking unjustified adjournment of the matter, and then absents him or herself, failing to proceed also carries with it the spectre of likely injustice.

18. Where a party has sought the exercise of the Court’s jurisdiction to resolve a justiciable dispute with another party, the exercise of that jurisdiction should not be stymied by a parties’ refusal to participate.

19. The hearing of the contravention applications continued in the Mother’s absence.

Contravention Application filed 20 December 2019

1. The Father alleged that the Mother breached Order 6(g) of the Orders made by Judge Tonkin dated 5 October 2018. Order 6(g) is as follows:

   6. X shall spend time with her father as follows unless otherwise agreed in writing:

   (g)      during school term in 2019 commencing from 4.00 p.m. Friday 8 February 2019 until 4.00 p.m. Sunday 10 February 2019 and each alternate weekend thereafter with the father to collect X from McDonald’s Suburb G, A.C.T. at the commencement of time and the mother (or her agent) to collect X from McDonald’s Suburb F at the conclusion of time;

2. The Father’s Contravention Application stated that on 13 December 2019, “The Respondent Mother did fail to allow the child X to spend time with the Applicant Father. The Respondent Mother failed to attend with the child for changeover at 4:00pm on 13 December 2019 pursuant to Orders dated 5 October 2018.”

3. The Mother admitted to this contravention but reserved her position as to reasonable excuse.  However, the Mother failed to lead any evidence capable of establishing reasonable excuse.

4. The Father alleged that the Mother breached Order 8(b) of the Orders made 5 October 2018.  Order 8(b) states:

   8. X shall communicate with her parents, unless otherwise agreed in writing, as follows:

   (b)      commencing 2019 and thereafter during school terms X shall communicate with her father each Tuesday and Thursday between 6.30 p.m. and 7.00 p.m. (or such other time as may be agreed between the parties) with the father to contact X on the mobile phone provided to her by the father and the mother to facilitate the call;

5. The Father stated that the Mother failed to facilitate communication via telephone between the Father and X on 10 December 2019 at 6:30pm, as X’s phone was not answered.

6. The Mother admitted to this contravention but reserved her position as to reasonable excuse.  Again the Mother led no evidence of reasonable excuse.

7. The Father also stated that the Mother did not facilitate telephone communication a second time, on 12 December 2019 at 6:30pm as X did not answer her phone again. 

8. The Mother did not admit to this contravention. 

Contravention filed 5 February 2020

1. The Father stated that the Mother breached Order 6(j) of the Orders dated 5 October 2018 on 24 January 2020.  The Father stated that “I was due to spend time with X from 3:00pm on Friday 24 January 2020 to 3:00pm on Sunday 2 February 2020, a period of some 9 days.” He stated that the Mother failed to attend with X for changeover that afternoon and that the Father left at 4:00pm.

2. The Mother admitted to this failure to provide X for changeover but reserved her position as to reasonable excuse. Again, the Mother led no evidence to establish a reasonable excuse.

Contravention Application filed 2 March 2020

1. The Father alleged that the Mother breached Order 6(k) of the Orders dated 5 October 2018. His application stated that on 21 February 2020 at 4:00pm “the Respondent Mother did fail to allow the child X to spend time with the Applicant Father. The Respondent Mother failed to attend with the child for changeover at 4:00pm on Friday 21 February 2020 pursuant to Orders dated 5 October 2018.”

2. The Mother admitted to this contravention but reserved her position as to reasonable excuse. No evidence was led by the Mother to establish reasonable excuse.

3. The Father alleged that the Mother breached Order 8(b) of the Orders dated 5 October 2018 on the following occasions:

   a)4 February 2020;

   b)6 February 2020;

   c)11 February 2020;

   d)13 February 2020; and

   e)18 February 2020.

4. He stated that “the Mother did not facilitate telephone calls between the Father and the child X on Tuesdays or Thursdays as required by the Orders on 4, 6, 11, 13 and 18 February 2020.”

5. The Mother did not admit to any of these contraventions relating to telephone contact with the Father. 

6. However, the Father’s evidence provided that on the dates outlined above he had called the number for the mobile phone he provided for X but that the phone was not answered on any of the dates he was due to have calls.[1] 

   [1] Father’s affidavit filed 10 March 2020 [15]

7. This was sufficient to establish the contravention on the balance of probabilities.

Conclusion

1. Whether by virtue of the Father’s evidence of the contraventions, or in reliance upon the admissions of contravention made by the Mother, each of the allegations made by the Father is made out.  On no occasion did the Mother establish that there was a reasonable excuse for the contravention.

2. The Father sought further that the contraventions be assessed as more serious contraventions falling within Subdivision F.

3. Section 70NFA, which deals with when a contravention is “more serious” is in the following terms:

   (1)  Subject to subsection (2), this Subdivision applies if:

   (a)     a primary order has been made, whether before or after the commencement of this Division; and

   (b)    a court having jurisdiction under this Act is satisfied that a person has, whether before or after that commencement, committed a contravention (the current contravention ) of the primary order; and

   (c)     the person does not prove that he or she had a reasonable excuse for the current contravention; and

   (d)    either subsection (2) or (3) applies.

   Note:         For the standard of proof to be applied in determining whether a contravention of the primary order has been committed, see section 70NAF.

   (2)  For the purposes of paragraph (1)(d), this subsection applies if:

   (a)     no court has previously:

   (i)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

   (ii)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order; and

   (b)the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.

   (3)  For the purposes of paragraph (1)(d), this subsection applies if a court has previously:

   (a)made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order; or

   (b)under paragraph 70NEB(1)(c), adjourned proceedings in respect of a contravention by the person of the primary order.

   (4)  This Subdivision does not apply if the court dealing with the current contravention is satisfied that it is more appropriate for that contravention to be dealt with under Subdivision E.

   (5)  This Subdivision applies whether the primary order was made, and whether the current contravention occurred, before or after the commencement of this Division.

4. The Father identified that the Mother has previously been dealt with for contravention of the orders of Judge Tonkin by Judge Dunkley on 7 May 2018.  On that occasion, Judge Dunkley found that the Mother had contravened her Honour’s orders without reasonable excuse on four occasions.  The Mother was directed to enter bonds for a total period of 12 months and to attend a post separation parenting programme.

5. His Honour characterised those contraventions as less serious contraventions.

6. This brings the current contraventions within s 70NFA(3)(a). 

7. The repeated nature of the contraventions, and the nature of the withholding of X both for face to face and telephone time, means that I am not satisfied that it is more appropriate to deal with the contraventions under Subdivision E.

8. Accordingly, the Mother is found to have contravened the orders of Judge Tonkin in the manner alleged in the Father’s Contravention Applications filed 20 December 2019, 5 February 2020 and 2 March 2020 and to have done so without reasonable excuse.  Further, each of the contraventions falls within the more serious category.

9. The proceedings have been adjourned to 24 August 2020 to deal with the Mother in respect of the contraventions.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 17 July 2020.

Associate:   

Date:    17 July 2020