Kalant & Jordain (No. 2)

[2021] FamCA 125

FAMILY COURT OF AUSTRALIA

Kalant & Jordain (No. 2) [2021] FamCA 125   

File number(s):	PAC 2727 of 2015
Judgment of:	GILL J
Date of judgment:	12 March 2021
Catchwords:	FAMILY LAW – contravention – where the father seeks contravention orders – “without reasonable excuse” is not an element of the contravention – onus – where Mother’s allegations were vague and lacked evidentiary basis – whether orders contravened with reasonable excuse – where there was not a reasonable excuse.
Legislation:	Family Law Act 1975 (Cth) ss 70NDA, 70NEA
Number of paragraphs:	63
Date of hearing:	16 February 2021, 4 March 2021 and 12 March 2021
Place:	Canberra
Solicitor for the Applicant:	Bainbridge Legal
Counsel for the Respondent:	Mr White, SC
Solicitor for the Respondent:	Legal Aid, ACT
Solicitor for the Independent Children's Lawyer:	Ms M Burgess

ORDERS

PAC 2727 of 2015

BETWEEN:

MR KALANT

Applicant

AND:

MS JORDAIN

Respondent

MARY BURGESS

Independent Children’s Lawyer

ORDER MADE BY:	GILL J
DATE OF ORDER:	12 MARCH 2021

THE COURT ORDERS THAT:

1.The proceedings are adjourned to 10 am on 9 April 2021 for the determination of sanction.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

GILL J:

1. These proceedings concern two contravention applications, alleging that the mother has failed to comply with obligations imposed upon her by orders of this Court.  Those contravention applications relate to contraventions alleged to have occurred during the currency of a bond associated with a suspended term of imprisonment for the mother.

2. The hearing of the contraventions was first returnable on 3 February 2021, on which occasion the mother sought and was given permission to file in Court an affidavit setting out the circumstances of the alleged contraventions.  The proceedings were stood down to allow the mother to obtain advice from the duty lawyer, and the proceedings were ultimately adjourned until 16 February 2021 for hearing.

3. On 16 February 2021, the mother was represented by Ms Gilbert, initially appearing without the mother.  The proceedings were stood down, resuming with the mother present at 2 pm, at which time Ms Gilbert asked for, and obtained the standing down of the matter to take further instructions.  The matter then commenced, being adjourned at the close of the father’s case until 4 March 2021.  On that occasion, Ms Gilbert attended and advised that she had filed a notice of ceasing to act.  The mother was then represented on a duty basis by Mr Smith of the Legal Aid Office, who secured a further adjournment of the proceedings on behalf of the mother.

4. The proceedings recommenced on 12 March 2021, at which time the mother was represented by Mr White of Senior Counsel.

   The contravention application of 1 February 2021

5. By his contravention application filed 1 February 2021 (the first allegation), the father alleges that on 20 January 2021 at 4.00pm the mother did:

   Fail to allow the child X to spend time with the applicant father.  The Respondent mother failed to facilitate changeover at 4.00pm on Wednesday 20 January 2021 pursuant to orders dated 8 December 2020 at order 2(b)(i)(b).

6. Although the alleged contravention was specified as “without reasonable excuse” this phrase was omitted from the allegation when read to the mother, on the basis that the structure of the legislation is such that the issue of without reasonable excuse is not an element of the contravention, nor a defence to the contravention, but is a response that, if made out by the respondent, qualifies the nature of the discretion, and impacts the exercise of the discretion of the Court in dealing with the contravention.  That this is so is suggested by the provisions that differentiate between contraventions either with or without reasonable excuse.  In each case, the contravention is established whether or not there is reasonable excuse, and establishing reasonable excuse only arises following the finding of contravention.[1]

   [1] See for example the operation of Family Law Act 1975 (Cth) ss 70NDA and 70NEA.

7. Order 2(b)(i)(b) relevantly provides:

   By consent, the Court orders that

   2(b)(i)The Orders dated 5 October 2018 (as amended 1 September 2020) be varied such that the child X spend time with the father over the 2020/2021 Term 4 holiday period as follows:

   a…. and

   b.    From 4 pm on 20 January 2021 until 4 pm on 26 January 2021.

8. Changeover was to occur at the McDonalds at L Centre at the commencement of time, and at Suburb K McDonalds at the conclusion of time.  The mother admitted the contravention, and asserted reasonable excuse.

   The contravention application of 2 February 2021

9. By his contravention application filed 2 February 2021 (the second allegation), the father alleges that the mother did:

   Fail to attend upon the appointed expert Dr Q for the purpose of her interview/observations, pursuant to orders dated 22 October 2020.

10. The father particularised the contravention as occurring on 25 January 2021, as advised by R Clinic, by electronic means.

11. Again, reference to “without reasonable excuse” was omitted.

12. The relevant order was identified by the father as Item C of the Terms of Reference of the Orders of 22 October 2021, which relevantly provide:

    The parties will do such things necessary to facilitate the preparation of the report including attending upon the Court Expert as requested, noting that the Expert anticipates the interviews will take place on 25 January 2021 in Sydney.

13. On the mother’s assertion that she was awaiting a call from Dr Q, the mother was taken to be not admitting the contravention.

14. Secondly, the father alleged (the third allegation) that the mother did:

    Fail to facilitate the child X’s attendance upon the appointed expert Dr Q for the purpose of her interview/observations, pursuant to orders dated 22 October 2020.

15. The father particularised the contravention as occurring on 25 January 2021, as advised by R Clinic, by electronic means.

16. The relevant order was identified by the father as Item C of the Terms of Reference of the orders of 22 October 2020, which relevantly provide:

    The parties will do such things necessary to facilitate the preparation of the report including attending upon the Court Expert as requested, noting that the Expert anticipates the interviews will take place on 25 January 2021 in Sydney.

17. Again, reference to “without reasonable excuse” was omitted.

18. On the mother’s response that she had X ready for a telephone attendance on Dr Q, but that the call never came, the mother was taken to be not admitting the contravention.

    The hearing

19. The father relied upon his affidavits filed 1 and 2 February 2021 in support of the contraventions, including exhibited items K9 and K10.  A further bundle of documents was exhibited as F2.  He was cross-examined by the solicitor then appearing for the mother and by the ICL.

20. The matter was then stood down for the mother’s solicitor to take further instructions regarding making a response or calling evidence in accordance with Rule 21.08.  On the matter being recalled, the ICL sought, and was granted permission, to resume cross-examination of the father.

21. The proceedings were then adjourned in the manner identified earlier in this judgment.

22. To the extent that a prima facie case might be required, taking the father’s evidence at its highest was sufficient to establish the three contraventions.

    Evidence in relation to the first contravention

23. As noted, the mother conceded this contravention.  This, whether with or without the assistance of the evidence given by the father, was sufficient to, if necessary, establish beyond reasonable doubt that the mother failed to provide X in accordance with the orders as alleged.

24. The key disputed issue was whether the mother established, on the balance of probabilities, that in accordance with s 70NAE she had a reasonable excuse for not providing X.  In addressing the issue of reasonable excuse, the mother’s senior counsel appropriately relied upon s 70NAE(5), being that

    The respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child).

25. It was accepted that this ground requires both a subjective element of “belief” and an objective element of “reasonable grounds”.

26. The matter raised by the mother was as to whether the then current COVID-19 restrictions, or rather, her understanding of them, justified the mother in failing to hand over X.  It was urged by the mother’s senior counsel that the mother’s explanation should be seen in the context of the then fluid-COVID 19 situation and restrictions.  Undoubtedly, this is so.

27. In her affidavit filed in Court, the mother observed that the previous time that X was returned to her by the father from NSW prior to the contravention, being 26 December 2020, the mother and X were required to test for COVID-19 and quarantine for two weeks due to COVID-19 arrangements and ACT Health Regulations.

28. The mother asserted that prior to 20 January 2020, she “realised” that the father would be travelling from a COVID-19 hotspot in NSW to the ACT.  She says that she formed this view because the father works in the S Council area, or in her oral evidence, Suburb F.  The father accepted that he worked in a hotspot area.

29. The mother accepted that as of 20 January 2021, she did not know where in Sydney the father lived, but asserted that the father’s workplace, which was known to her, was in a relevant hotspot.  The height then, of what was known to the mother, was that she had a vacuum of knowledge in respect of where the father lived, and that the father’s workplace was in a hotspot.  The mother did not identify the significance of the father’s work being in a hotspot to any restrictions affecting X.

30. The mother also expressed concern that X may be taken into a hotspot area, or have contact with people from a hotspot.  The mother was particularly concerned that if X had to quarantine on her return that she and her brother would be caused to miss the start of school.  She was also concerned, she said, that X may become the source of an outbreak of COVID-19 in the ACT.

31. The mother asserted that she attended changeover with X, and requested to see the father’s exemption.  She said that he appeared to email it to her, but that she did not receive it, which caused her to infer that he was lying about an exemption.  This conflicted with the father’s account that he asked the mother for her email address to send it to her and that she refused to give it to him.

32. The mother then declined to hand X over, travelling to the Suburb C police station.  She says that she invited the father to likewise attend the police station but he did not.  The father said that such an attendance would have conflicted with the conditions on which he was permitted to enter the ACT.  The mother says that she was there advised that she had to comply with COVID-19 restrictions.  The mother did not make clear the content of the restrictions that she was advised to follow, nor who then advised her of such, nor as to what she told such an advisor of her situation.

33. Although the mother asserted that she had conducted previous research and sought previous advice as to the restrictions, again she did not set out who in particular (beyond departmental sources) was the source of such, nor what they were told of the mother’s circumstances, nor as to the currency of that advice with respect to the handover time.  The mother was, at best, vague about the basis on which she formed her asserted view as to the restrictions, or even what her view of the content of the restrictions was.

34. The annexure at K9 paints a somewhat different picture.  Contained therein is an email chain between Ms Long who has previously appeared for the mother on a duty lawyer basis and the solicitor for the father, Mr Bainbridge.  The mother concedes that Ms Long was still assisting her as at 20 January 2021, and that she had contact with Ms Long that day.

35. An email from Ms Long to Mr Bainbridge at 11:40 am on 20 January 2021 expresses the concerns now raised by the mother, being concerns that X would be caused to enter a red zone in Sydney and accordingly be required to quarantine on return to Canberra, causing the necessity for her brother to also quarantine, and for them both to miss the start of the school year.

36. Promptly, at 12.15 pm on 20 January 2021, Mr Bainbridge responded to Ms Long, advising that as the father did not live in, and X would not be staying in a red zone, unless there was some change to the requirements there would be no requirement for X to quarantine on her return to Canberra.  He provided an assurance that the father would avoid taking X into any area that might cause her to be quarantined.

37. At 1.09 pm on 20 January 2021, Ms Long responded to Mr Bainbridge, confirming that X would be made available by the mother for the 4 pm handover at the McDonalds at L Centre that afternoon.  Although Ms Long requested further information, the receipt of such was not a condition of X being handed over.  No request was made for the father to provide evidence of an exemption to the mother. 

38. The mother denied having instructed Ms Long in this manner.

39. Ultimately, the mother attended the the McDonalds at L Centre at the handover time, as did the father.  However, X was not handed over by the mother, on the basis that the father did not provide the mother with a relevant exemption.  The mother’s evidence on this point appeared disingenuous.  Although the mother asserted that she was prepared to hand X over on the relevant information being presented, being an exemption, she also asserted that an exemption would not be able to be procured by the father.  She also said that she thought he may have completed the paperwork for one that afternoon, but contradictingly asserted that the relevant system would not have permitted him to receive one due to a bar on receiving one once it was indicated that the application was related to court proceedings.  The mother also suggested that maybe the father would have decided to remain in the ACT for a week enabling him to see X, inferentially without a risk of attending a hotspot.  Such an issue was never raised.  The mother’s shifting evidence undermined the notion that confidence could be placed in her evidence of her belief in relation to reasonable excuse.

40. The mother’s credibility was further undermined by the evasive manner in which she approached questions asked in cross-examination.  Senior counsel for the mother rightly identified that caution should be exercised in assessing the mother’s evidence due to the ongoing strain of the proceedings.  Even giving due allowance for such, the mother’s evasive approach to questions undermined her credibility further.

41. It may be seen that the mother’s demands of the father at handover conflict with the representation made on her behalf by Ms Long that indicated that the collection of X and travel to Sydney no longer remained an issue.

42. The contradictory evidence given by the mother in relation to an exemption being procured, or able to be procured by the father, the mother’s more general evasiveness in answering questions and, more importantly, the correspondence from Ms Long, undermine the mother’s assertion of belief that withholding X was relevantly necessary. 

43. Despite the mother’s denial that she had instructed Ms Long in the manner represented by Ms Long, Ms Long’s status as her legal representative, even on a duty basis, at the time, combined with the consistency of the matters raised by Ms Long with the matters raised by the mother, followed by a direct representation by Ms Long that the mother would provide X mean that I do not accept the mother’s denial.  Despite the hearsay nature of Ms Long’s representation, the circumstances of the representation are such that I accept it over the mother’s denial.

44. Further, the mother’s assertion as to reasonable grounds for her concerns, while expressed in the context of the fluid COVID-19 situation, lack credibility both in the context of the correspondence of Ms Long, and in the context of the vague nature of the evidence given by the mother as to the information that she sourced to found her belief.

45. The mother has failed to establish on the balance of probabilities either a relevant belief, or reasonable grounds for such, as to provide a reasonable excuse for the contravention.

    Evidence in relation to the second and third contraventions

46. Although each of these matters requires individual consideration, it is convenient to set out the evidential matters together as they share a common factual substratum.

47. The first aspect is that X was not provided to the father, as set out above, in circumstances where he would then have responsibility for facilitating X’s attendance for assessment upon Dr Q.

48. The second aspect is that an email from Dr Q’s administration manager directed to the ICL on 25 January 2021 stated:

    As you will be aware, Ms Jordain called our office to express she will not be able to proceed with online appointment as she did not have access to suitable technology and she also had two children at home with her and no support person.

49. At [29] - [33] of the mother’s affidavit the mother set out the circumstances in relation to the non-attendance upon Dr Q as follows:

    I am aware that X, and indeed Mr Kalant and myself, were to be interviewed by the expert report writer on 25 January 2021.  My concern about this was not that X may have been staying with Mr Kalant during the interview times, as I believe Mr Kalant appears to allege, but that all our interviews were now due to COVID, be by video or by phone.

    In the first instance, I do not own a computer or a laptop and my "smart" phone while it does now have a working video, is seen by X as a toy and is a way to distract her with some of her apps.  I believe without a stationary laptop, and a quiet empty room, we would both be at a disadvantage between those two mediums, as would Dr Q as I do not believe she would be able to get the information she needs.

    Secondly, I do not believe that this either type of interview would be a true representation of Mr Kalant, or myself, or more importantly, X - who is only seven years old - and her interactions with either of us.  X does not concentrate on Facetime - she wants to play or jump on the trampoline.  Mr Kalant is very aware of this because when he facetimes her, he spends more time speaking with me, than her, as she is running off and unable to concentrate.

    It has been brought to my attention that Ms T was interviewed by Dr Q in place of me where I supposedly did not "turn up."  This is incorrect.  I called Dr Q's office to express my concerns as stated in the two paragraphs above, but told her secretary I would be happy to give it a go either way, if they wanted me to.  I was told they would call me back.  They did not call me back.  I only found out today, that Ms T was being interviewed - when I was waiting for my call back to see whether we would proceed or not.

    I believe Ms T is not on the Terms of Reference and no leave was sought to the Court to have her added to it, so I do not understand why it was okay for her to be interviewed.

    Furthermore as I have said previously, given Y features heavily in assessing the overall situation and any impact a separation may have on X, I do not understand how it would be okay to interview Ms T, but not X's blood brother.

    At any rate, it would seem to me to bescommon [sic] sense that certain nuances about a person and their state of being, particularly how they interact with a child, and observing a young child, can simply not be picked up or observed via phone, and while video is marginally better, it still doesn't replace the real thing - a face to face meet. We have the added disadvantage of no computer so we only have a small screen on a phone. The fact that it is handheld is also a distraction for X.

    For the reasons above, I was and am concerned that interviewing us in this way because of COVID, and not in person, would negate the whole purpose of a true and accurate family report, be a waste of the thousands Mr Kalant is to pay, and more concerningly, not in the least provide a faithful representation of the tragic situation this broken family finds themselves in.  The fact that this interview is of utmost importance in this prolonged case, means I believe that it should be done in the proper way to avoid any error, and I think allow Mr Kalant, X, Y and myself, the best chance to be done with this nightmare, in the least traumatic and most efficient way possible for us all.

1. There the mother identified that she was aware that the interviews were to take place by video or by phone, identifying such as a matter of concern for her.  The mother accepted that she had a telephone available with video capability, but criticised the efficacy of the use of such.  The mother made various other criticisms of the efficacy of arrangements for the assessment of X.  The thrust of the mother’s evidence appeared to be as to her concerns with the assessment process. 

2. It should be noted that while the mother accepted that she had a telephone available with video capability she did not accept that she had relevant credit to fund data for the use of that capability. 

3. Further aspects of the mother’s evidence indicates that she was deeply opposed to the assessment taking place via electronic means.  That opposition became even more apparent in relation to representations made by the mother to the Registrar on 21 January 2021.  The father’s evidence is that the mother said to the Registrar words to the effect that she had spoken to Dr Q’s office and that the appointment was likely to be cancelled for the following Monday, which was the 25^th, because X was too young to do it by video.

4. Exhibit F2 at page 6 contradicts that such a representation was made by Dr Q’s rooms.

5. On the same issue, under cross-examination the mother asserted, firstly, that X had been assessed as too young for a video assessment. When pressed, the mother asserted that this assessment had come from a general practitioner, although she could not say when it had occurred.  The mother then, when further pressed, asserted that no such assessment had taken place, but that the doctor had said that X was too young for such a process when the mother had told her about it.

6. The mother’s shifting evidence at this point again undermined her credibility.

7. It may, however, be accepted that the mother, as represented by her, was awaiting a call from Dr Q's rooms on 25 January 2021 following her raising of the issues with the receptionist, with such a call never eventuating.

8. Ultimately, it may be accepted that following the mother’s representation to Dr Q’s rooms that she lacked the relevant technological facilities for the assessment, and that she could provide no appropriate space for the interviews to take place, as per Exhibit X1, Dr Q determined that she would not conduct the interviews.

9. Accordingly, the mere waiting for a call to be made from Dr Q’s rooms is not, of itself, a failure to comply with the requirement of the Orders.

10. However, that is not the end of the matter.  It may be seen that the assessment did not take place in a context where the mother neither provided the electronic facilities, nor an appropriate space for the assessment.  Further, the mother did not complete any of the material that was sent to her from Dr Q to form a part of the assessment process.  The failure of the mother to do so becomes an issue in the case in determining whether the mother failed to “do such things necessary to facilitate the preparation of the report.”  It was the lack of these steps that meant that the assessment was unable to take place as scheduled on 25 January 2021 by electronic means.

11. The mother was on notice from approximately 12 January (exhibit F2) of the need to obtain or provide such facilities.  Further, the need to take steps to secure such became even more pressing when the mother withheld X on 20 January 2020.  From 12 January, the mother was aware of the need to provide facilities to enable herself to take part.  From 20 January, she was aware of the need to do so in respect of X.

12. The mother gave no evidence of any step taken by her to secure the appropriate facilities, or to enable her to complete the documents sent by Dr Q.  Her evidence was left at a mere assertion that obtaining the relevant facilities was impossible.  That assertion may have gained credence if the mother’s credibility was not harmed by her varying and evasive answering of questions under cross-examination or if, more importantly, the mother had given evidence of taking any step to obtain or secure the relevant facilities.  No evidence from her set out even the smallest effort or inquiry made on her part to do so.

13. In such circumstances, noting the strong opposition of the mother to the process, it cannot be accepted that the mother complied with her obligation to “do such things necessary to facilitate the preparation of the report.”  Further, this state of the evidence means that the mother has fallen short of establishing that she had a reasonable excuse for the non-compliance.

14. It may be concluded that, on the balance of probabilities, the mother contravened Item C of the Terms of Reference of the Orders of 22 October 2020, in both aspects as alleged, and has failed to establish a reasonable excuse for so failing to comply with those obligations.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.

Associate:

Dated:       16 March 2021