KALINK & KARSTEN

[2019] FCCA 3258

FEDERAL CIRCUIT COURT OF AUSTRALIA

KALINK & KARSTEN [2019] FCCA 3258

Catchwords:
FAMILY LAW – Contravention.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR KALINK

Respondent: MS KARSTEN

File Number: MLC5836 of 2016

Judgment of: Judge McGuire

Hearing date: 1 November 2019

Date of Last Submission: 1 November 2019

Delivered at: Bendigo

Delivered on: 20 November 2019

REPRESENTATION

Counsel for the Applicant: Ms Smallwood SC

Solicitors for the Applicant: Lampe Family Lawyers

The Respondent appeared in person

ORDERS

1. The Court finds that the mother, Ms Karsten, guilty without reasonable excuse in respect of five counts of Contravention of family law Orders pursuant to Contravention Applications filed 7 February and 18 October 2019.

2. The matter is adjourned for the taking of submissions in respect of penalty in the Federal Circuit Court at Melbourne on Monday 16 December 2019 at 9.30 a.m.

IT IS NOTED that publication of this judgment under the pseudonym Kalink & Karsten is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5836 of 2016

MR KALINK

Applicant

And

MS KARSTEN

Respondent

REASONS FOR JUDGMENT

Applications

1. The father Mr Kalink, is the applicant in two Contravention Applications filed 7 February and 18 October 2019.

2. These applications together came on for hearing before me in the Federal Circuit Court at Melbourne on 1 November 2019.

3. The respondent mother, Ms Karsten, represented herself in the applications.  She did so under some difficulty being wheelchair-bound after a recent motor vehicle accident.  Ms Karsten was provided with details of the procedure in Court and the nature of Contravention Applications generally.  She was afforded an invitation to request assistance of the Court at any time should she have questions as to procedure.  My observations of Ms Karsten were that she is an articulate and intelligent woman and appeared to grasp the nature and content of the applications before the Court. She conducted her cross-examination in a proper and courteous manner albeit briefly.

4. The applicant was represented by solicitors and Senior Counsel at the hearing.

The Pleas

1. The application first in time being that filed 7 February 2019 contains four separate counts of alleged contravention.  After some initial comment from the bench, the applicant through his Counsel elected not to prosecute the second of those counts.  Further, the respondent initially entered a plea of guilty but with a reasonable excuse to count four on that application.  A direction of not guilty was made without submissions to the contrary from Counsel for the applicant.

2. There remain, therefore, two live counts to be prosecuted in respect of that first application and to which the respondent entered pleas of guilty but with a reasonable excuse to each.  Those counts are pleaded as follows: –

   Count 1 - That on 14 November 2018 and contrary to orders 2,3 and 4 of the orders of 29 January 2018 the Respondent applied for, and enrolled the child, X into a Secondary School without the knowledge or agreement of the Applicant;

   Count 2 – That in 2018, January 2019 and contrary to orders 7 (f) of the orders of 29 January 2019 the Respondent failed to provide the children over the Christmas period and failed to communicate with the Applicant to arrange Christmas time between the Applicant and the children.

3. The application filed 18 October 2019 contains four separate counts.  Again, a directed finding of not guilty was made in respect of count four.  Leaving three live counts to which the respondent entered pleas of guilty but with a reasonable excuse to each.  The particulars of those counts are as follows:

   Count 3 – That on 30 September 2019 contrary to order 7 of the orders of 31 May 2019 the Respondent failed to contribute her share of payment to Dr A for reportable family therapy;

   Count 4 – That on 30 September 2019 and contrary to order 3 of the orders of 31 May 2019 and order 5 of orders of 19 September 2019 the Respondent failed to attend upon Dr A’s office for reportable family therapy; and

   Count 5 - That on 18 October 2019 and contrary to order 10 of the orders of 31 May 2019 The Respondent failed to provide evidence of seeking a treating Psychologist specialising in Autism Spectrum Disorder for Y, and has not provided the name of the Psychologist.

4. The applicant father relied on his affidavits affirmed 18 October and 6 February 2019 in respect of the remaining counts set out above.  He was cross-examined by the respondent.

5. The respondent had not filed affidavits and is not required to do so under the legislation.  She gave evidence in the witness box in respect of her claimed reasonable excuses and was cross-examined by Counsel for the applicant.

Relevant Law

1. Given that the respondent has entered pleas of guilty but with a reasonable excuse to each of the remaining counts, she carries an onus of proof to a standard of on the balance of probabilities.

2. S.70NDA of the Family Law Act 1975 ('the Act') provides:

   This subdivision applies if:

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

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

   (c)the respondent proves that he or she had a reasonable excuse for the current contravention.

3. S.70NAE of the Act references the meaning of 'reasonable excuse for contravening an order’ as follows:

   (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 is bound by it; and

   (b)     the Court is satisfied that the respondent ought to be excused in respect of the contravention.

   (3)If a Court decides the person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the Court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

   (4)…

   (5)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 spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a) 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); and

   (b)     the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a). 

The Evidence and Consideration

Count 1

1. Count 1 alleges that the respondent enrolled the child X into a particular secondary school without the knowledge or agreement of the applicant.

2. The respondent says that she had a reasonable excuse in that she tried to engage the applicant by sending multiple emails.  She says he has a history of not responding and alleging he does not receive her emails.  She says that she endeavoured over a six-month period to engage the applicant in the issue are but ultimately enrolled her daughter in the particular school in March or April 2018 for the 2019 school year.

3. The respondent was cross-examined at length in respect of various email sources and was presented with evidence which, in fact, shows responses by the applicant father but only to emails from a different source.  It was put to the respondent that her emails in respect of this issue were, in fact, concoctions.  Significantly, in my view, the respondent was unable to explain why she should receive other email correspondence from the father but not in respect of this issue or give any satisfactory explanation as to why she did not attempt other means of communication with him.  It remains that, prima facie, she enrolled the child in school without the consent of the father contrary to order (2) of the orders of 29 January 2018 which provide for equal shared parental responsibility and, perhaps more relevantly, contrary to orders (3) and (4) of those orders which go further in specifying and defining issues of 'long term care, welfare and development' including 'education' and at [4] specifically obliging the parties to 'consult with the other person in relation to the decision to be made'.

4. Whilst I maintain some doubts as to the authenticity of the mother's emails, the fact remains that she did not 'consult' with the father prior to enrolling the child at the school.  The order does not limit her obligations to emails.  It provides a broader obligation of ‘consulting'.  As such, I am not persuaded that the mother has discharged her onus of proving a reasonable excuse and there will be a finding of guilt in respect of this count.

Count 2

1. This count alleges that the mother failed to provide the children to the father over the Christmas period and failed to communicate with the applicant to arrange Christmas time between the applicant and the children. 

2. Order 7 of the orders of 29 January 2018 provide inter alia:

   That notwithstanding anything stated in paragraph 6, the Applicant and the Respondent shall each spend time with the children each of the following special days: –

   …

   (f)     For half of Christmas Day at times to be agreed or in the absence of agreement: –

   (i) in each year:

   A.  With the Applicant (father) from 5:00pm Christmas Eve until 9.00am Christmas Day;

   B.  With the Respondent (mother) from 9.00am Christmas Day until 10.00am Boxing Day.

3. The respondent says that the parties’ son, Y, did in fact attend the father's home on the relevant Christmas Day but did not enter his house. He was apparently taken to the home by the maternal grandparents and left after a short period.  The daughter, X, did not attend at the home at all.

4. The mother's claimed reasonable excuse is somewhat convoluted.  She says that the children had made allegations of sexual impropriety in the father's home such as he walking in on them in the bathroom.  She says that these allegations extended from sometime in 2017 but that she did not go to the police until January 2019.  She says that the children had been running away from their father's home during December 2018.  She says that she tried to encourage the children, but they were refusing to go to their father.  She says that she disciplined the daughter by removing some privileges and placing her in her room.

5. The thrust of the mother's evidence in cross-examination was more to the children's reluctance being connected somehow to the father not consenting to the daughter attending the school of her choice.  As such, it is pertinent to note that the obligations of a primary parent extend to being able to facilitate and encourage the children's relationship and compliance with Court orders in respect of the other parent.  The failure to do so is prima facie a demonstration of a lack of a parenting skill.

6. In this matter, I am comfortably satisfied that the children's reluctance to attend on their father on Christmas Day is primarily related to the school issue.  This was obviously a matter in which the mother was heavily involved and ultimately made decisions unilaterally and without consultation with the father.   I am not satisfied that the mother has shown a reasonable excuse for the children not attending upon their father on Christmas Day and prefer rather that she contributed to this situation by her own involvement of the children in the adult decision-making aspects of their education.  Consequently, there will be a finding of guilt without reasonable excuse. 

Count 3

1. This count alleges that the mother failed to contribute her share of payment to Dr A for reportable family therapy.

2. Order 7 of the consent orders made 31 May 2019 provides:

   The parties will be equally responsible for the costs associated with Y and X attending the family therapy referred to in paragraph 3 and co-operate to the extent necessary to mitigate such costs by obtaining mental health plans (if applicable).  Otherwise, they shall each be liable for any individual appointments they may have with the Family Therapist.

3. The mother concedes that she did not pay her share of the costs approximating some $4,400.  She says that she was unable to meet the costs at the time.  She says that she wrote to the father and/or his lawyer asking for consent that the father meet such costs in the first instance and that she repay him.  She agrees that she did not meet the costs which were ultimately borne by the father.

4. Firstly, the mother entered into consent orders in respect of the preparation and payment of the family report.  Secondly, she gave evidence in respect of other issues before the Court that she and her current husband were prepared to solely meet the payment of private school fees for the children or one of them.  Thirdly, she gave no evidence of attempts to obtain finance from any source other than the father. Fourthly, evidence was adduced showing email correspondence from the mother to the father with a grossly antagonistic content such that the mother should not have 'reasonably' assumed that the father might be inclined to provide her with finance to fund her share of the family report.  In all of these circumstances, I am not persuaded that the mother has raised a reasonable excuse in respect of her breach of the consent order.  There will accordingly be a finding of guilt without a reasonable excuse in respect of this count. 

Count 4

1. This count alleges that the mother failed to attend upon Dr A’s office for reportable family therapy.

2. Order 5 of the orders of 19 September 2019 provides:

   The mother comply with order 3 and 4 of the orders made 31 May 2019 and attend the office of Dr A on 30 September 2019. 

3. The purpose of the order was for the preparation of a report from reportable family therapy.  It seems that the children attended but with the mother's current husband.  The father attended.  The mother provided a medical certificate for her non-attendance.  There is no evidence that she made alternative appointments for the purposes of the report.  Dr A’s ultimate report at [9] notes the mother's medical certificate but does not consider it sufficient reason for her non-attendance.  The medical certificate is un-particularised and generic only in its statement that the mother is 'unfit to attend'.  Perhaps, the rhetorical question is if the mother was able to attend upon the doctor for a certificate then why couldn’t she attend upon Dr A?  All of these factors combined to persuade me that the mother has not raised a reasonable excuse for her non-compliance with the order.  Consequently, I make a finding of guilt without reasonable excuse in respect of this count.

Count five

1. Count five alleges that the mother failed to provide evidence of seeking a treating psychologist specialising in Autism Spectrum Disorder for Y, and has not provided the name of the psychologist.

2. Order 10 of the orders of 31 May 20 19 provide:

   The mother forthwith seek recommendations from Ms B of C Therapy Group for a treating psychologist specialising in Autism Spectrum Disorder for Y, and provide the name of the recommended psychologist to the father.  Thereafter the parties forthwith do all such acts and things to arrange for Y to commence attending upon such psychologist at the first available opportunity.

3. The mother's asserted reasonable excuse is that she attempted to contact the said Ms B on five or six occasions by telephone and left messages but received no responses. She continues that, in any event, the child has engaged with the psychologist at the child's school. The upshot of the mother's own evidence is that she has unilaterally moved from the requirements of order [10]. I do not consider her efforts to contact Ms B to be sufficient excuse for non-compliance with the orders. Indeed, I consider it obligatory for the mother to have returned to this Court to obtain alternative orders or, at the very least, to obtain the father's consent to move from the said order. She has done neither. Further, the fact that the child sees a psychologist at the school does not, in my view, prima facie attend to the specific requirements of order [10]. Consequently, I am not satisfied that the mother has raised a reasonable excuse and there will be a finding of guilt without reasonable excuse.

Conclusion

1. I am satisfied, therefore, that the mother has breached each of the five counts remaining on the two applications and has not raised a reasonable excuse on any.  There will be findings accordingly.  The matter will be adjourned to the Federal Circuit Court in Melbourne on Monday 16 December 2019 at 9.30 a.m. for submissions as to penalty.

I certify that the preceding thirty three (33) paragraphs are a true copy of the reasons for judgment of Judge McGuire

Date: 20 November 2019