KAYE & ALLISON

[2015] FCCA 2840

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAYE & ALLISON [2015] FCCA 2840

Catchwords:
FAMILY LAW – Children – parenting orders – contravention of parenting orders – reasonable excuse – reasonable excuse for contravening an order – where contraventions admitted – whether respondent has established a reasonable excuse – three counts alleged – where reasonable excuse established in respect of two counts only.

Legislation:

Family Law Act 1975 (Cth), ss.70NAE, 70NAF, 70NEA

Federal Circuit Court Rules 2001, r.25B.04

Cases cited:
In the Marriage of Gaunt (1978) 4 Fam LR 305; FLC 90-468

Applicant: MR KAYE

Respondent: MS ALLISON

File Number: SYC 7760 of 2013

Judgment of: Judge Scarlett

Hearing date: 20 October 2015

Date of Last Submission: 20 October 2015

Delivered at: Sydney

Delivered on: 23 October 2015

REPRESENTATION

Counsel for the Applicant: Mr Breeze

Solicitors for the Applicant: Clinch Long Letherbarrow Lawyers

Counsel for the Respondent: Ms McIntosh

Solicitors for the Respondent: Everett Evans

ORDERS

1. The Respondent Mother has established a reasonable excuse for contravening on 15 May 2015 Order 5(c) made on 29 January 2014.

2. The Respondent Mother has established a reasonable excuse for contravening on 18 May 2015 Order 5(a) made on 29 January 2014.

3. The Respondent Mother did on 21 May 2015 without reasonable excuse contravene Order 5(a) made on 29 January 2014 in that she failed to allow the child X born (omitted) 2011 to spend time with the Applicant Father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7760 of 2013

MR KAYE

Applicant

And

MS ALLISON

Respondent

REASONS FOR JUDGMENT

Application-Contravention

1. This is an Application by the Father of a little boy called X, known as “X”, to deal with the Mother for contravention of parenting Orders made by this Court on 29^th January 2014. The child concerned was born on (omitted) 2011 and is now four years old. He lives with his mother, the Respondent.

2. The Applicant claims that the Respondent contravened the orders on three occasions between 15^th and 21^st May 2015.

3. The Respondent admits the allegations, but claims that she has a reasonable excuse for contravening the orders in each case. She has sworn an affidavit on 14^th October 2015 in which she sets out the reasons why she claims that she had a reasonable excuse for the contraventions. 

The Orders

1. The relevant Orders are Orders 5(a) and 5(c) made by consent on 29^th January 2014. Those Orders provide:

   That commencing on 31 January 2014 the child is to spend time with the father as follows:

   (a)     From 9am to 5pm each Monday and Thursday;

   …

   (c)Upon the completion of (b) and commencing on Friday 28 February 2014 from 5pm on Friday until 5pm on Saturday thereafter.

Contraventions

1. There are three contraventions alleged in the Application, all of which the Respondent has admitted and to all of which she has claimed a reasonable excuse.

2. All three counts allege a contravention of both Orders 5(a) and (c) but this is technically incorrect, although nothing turns on it, in my view.

3. Count 1 alleges a contravention of the Order at 5:00pm on Friday 15^th May 2015 in that:

   Respondent refuses to allow me to take the child, X, into my care as per the court orders attached.

4. Count 2 alleges a contravention at 9:00am on 18^th May 2015 in that:

   Respondent, Ms Allison, refused to allow me my court ordered access to my son X.

5. Count 3 alleges a contravention at 9:00am on 21^st May 2015 in that:

   Respondent, Ms Allison, refused to allow me my court ordered access to my son X.

6. The Applicant, who appears to have drafted his Application without legal assistance, has appended the words:

   *The above contraventions paragraph 6 through 11 are ongoing and repeated by the respondent weekly.

7. In my view, these words are not sufficient to establish any further contraventions. Each contravention of an order must be particularised in such a way that the Court may follow the procedure set out in Rule 25B.04. This procedure includes:

   At the hearing of the application, the Court must:

   (a)     inform the respondent of the allegation; and

   (b)ask the respondent whether the respondent wishes to admit or deny the allegation; and

   (c) hear any evidence supporting the allegation;

8. An allegation of a continuing contravention does not constitute a separate count which should be put to the respondent.

Reasonable Excuse

1. Section 70NAE of the Family Law Act 1975 (Cth) provides a guide to the meaning of the phrase “reasonable excuse for contravening” an order. Subsections 70NAE(1) and 70NAE(5) are relevant to this matter and are reproduced in full:

   70NAE(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).

   …

   70NAE(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 by 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).

2. There are, as it can be seen, two legs in subsection (5), both of which must be met.

The Respondent’s Evidence

1. The Respondent relied on her affidavit of 14^th October 2015. She was cross-examined on her affidavit by Mr Breeze of Counsel, who appeared for the Applicant.

2. The Respondent deposed in her affidavit that on 14^th May 2015 she arrived at the Applicant’s house at 5:05pm to find that the child was missing and had apparently left the house at some time after the father last saw him at 4:45 pm, when the child was watching television. She complained that the father would not help her go to look for the child. She drove around in her car and at about 5:30 pm she called the Police and reported the child missing, as by that time he had been gone for 45 minutes and it had become dark. Shortly after 5:30 pm the father telephoned her to say that a woman had found the child and brought him home.[1]

   [1] Affidavit of Ms Allison 14.10.2015 at paragraph [9]

3. The following day the mother informed the father that she was suspending the arrangements. On 21^st May 2015 the parties were negotiating about regular telephone contact between the father and the child.

4. The Mother also said in her affidavit that:

   When X went missing in the dark in (omitted) on 14 May 2015 as described below, this was the last straw for me. X was three years and nine months at the time. I was already very concerned about X’s safety in the care of his father however when X went missing, I was overwhelmed with fear and could not in good conscious[2] hand him over to his father without him being supervised.[3]

   [2] sic

   [3] Affidavit of Ms Allison 14.10.2015 at [6]

5. The Mother set out a number of instances of the Father’s behaviour that she says have caused her to have a belief on reasonable grounds that her actions were necessary to protect the child’s health or safety. They are:

   a)The Father abducting the child from her care at Sydney Airport on 31^st December 2013;[4]

   b)The state of the former matrimonial home left by the Father when the Mother returned on 31^st December 2013;[5]

   c)The fact that the child suffered an injury to his hand in an accident on a treadmill whilst in the care of the Father and paternal grandmother in June 2014;

   d)The fact that the Father arrived at the Mother’s home to collect the child on two occasions in April 2014 (the date was corrected by the Mother in her oral evidence) without a car seat in his car;

   e)The Father’s poor communication with her about his circumstances;[6]

   f)The fact that the Father and paternal grandmother from 15^th May onwards made “threats against my person, harassing emails and messages, Mr Kaye and Ms K both pounding on my door and missing personal items”[7].

   [4] Affidavit of Ms Allison 14.10.2015 at [17]

   [5] Ibid at [18]-[19]

   [6] Ibid at [28]

   [7] Ibid at [29]

6. In cross-examination, the Mother was asked about two letters sent to him by the Mother’s solicitors. These letters are set out in full.

7. On 20^th May 2015, the Respondent’s solicitors wrote to the Applicant, who was not represented at that stage:

   We have been contacted by our client in relation to an incident which occurred on Thursday 14^th May 2015 when you had visitation with X.

   We have been instructed that X was found by neighbours wandering the streets when our client arrived to pick up X from your home and was left unaccounted for approximately 40 minutes. He was then returned to your home by a neighbour and our client then took X home to her residence after this incident.

   Our client also instructs us that when she arrived at your home you did not attempt to help Ms Allison look for X as you were supervising your other child.

   We note that this matter is back before the Federal Circuit court on Wednesday 19 August 2015 for a final hearing. Until that time our client will not be allowing X to have access because the above facts show that he is at risk and not being adequately supervised.[8]

   [8] Affidavit of Mr Kaye 28.5.2015  Attachment “1”

8. The Respondent’s solicitors again wrote to the Applicant on 26^th May 2015, saying:

   We refer to the above matter and to our letter to you dated 20^th May, 2015.

   We have been instructed by our client that until the final hearing on the 18^th and 19^th August 2015 that it is not in X’s best interests or safety to spend time with you or your mother. Following the hearing, the Court will determine if it is in fact safe for X to spend time with you or at your home.

   We also ask that you not attend our client’s residence at any time and you must not approach her or X at any place where she or X may be.

   In view of these circumstances we strongly recommend that you retain a solicitor as soon as possible as we will be pressing for the final hearing to go ahead on the 18^th and 19^th May[9] 2015. If you do in fact instruct a solicitor shortly before the hearing, we will strongly object to the hearing date being vacated, to allow your solicitor more time to prepare.

   Therefore, if you are going to instruct a solicitor for the final hearing you should do so now. Please advise as soon as possible if you will be retaining a solicitor and your solicitor’s details.[10]

   [9] sic

   [10] Affidavit of Mr Kaye 28.5.2015 Attachment “3”

9. In answer to questions from the Bench, the Mother said that she spoke to her solicitor on two occasions after the incident, the first time being the day after. The Mother took no other action as the Courts were very busy and X was speaking to his father on the telephone. She also said that the Father did not see X until the child’s birthday in (omitted).

Submissions

1. Counsel for the Respondent, Ms McIntosh, submitted that it was significant that the three contraventions were close in time, one day after the incident on 14^th May, three days later and another three days later. She said it would have been startling, frightening and overwhelming for any mother for her child to go missing in that way when left in the care of his father. The Mother was disturbed by the Father’s “laissez faire” approach to the situation and she was concerned that he was not taking the matter seriously enough.

2. It was submitted that the incident of 14^th May when the child went missing was “the last straw” for the Mother. She was also put off by the Father’s aggressive behaviour when he came to the house on 15^th May.

3. Mr Breeze of Counsel, who appeared for the Father, referred the Court to the decision of In the Marriage of Gaunt[11], where the Full Court of the Family Court held:

   To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.[12]

   [11] (1978) 4 Fam LR 305; FLC 90-468

   [12] (1978) 4 Fam LR 305 at 308; FLC 90-468 at 77,398 per Evatt CJ, Emery SJ and Hogan J

4. Mr Breeze submitted that what the mother should have done was to move this Court to change the Orders to which she had previously consented.

5. It was submitted that the Mother had not established a reasonable excuse for the contraventions.

Consideration

1. It is the person who claims to have a reasonable excuse for contravening a parenting order who has the burden of establishing the reasonable excuse (Family Law Act 1975, s.70NEA(1)(c)). The standard of proof to be applied in determining whether the person who contravened the order had a reasonable excuse for doing so is proof on the balance of probabilities (s.70NAF(2)).

2. The Respondent must, under s.70NAE, establish both:

   a)a belief on reasonable grounds that not allowing the child and his father to spend time together was necessary to protect the child’s health and safety; and

   b)the period during which the child and his father did not spend time together was not longer than was necessary to protect the child’s health and safety.

3. The Mother has raised a number of issues about the Father’s behaviour as going to her having a belief on reasonable grounds. The incidents of 31^st December 2013 pre-dated the making of the Consent Orders on 29^th January 2014 and can hardly be seen as supportive of the Mother’s belief on or after 14^th May 2015.

4. The other incidents, referred to in subparagraphs [19](c) to (e) do not, to my mind, establish a reasonable belief on the part of the Mother that it was necessary to withhold contact with the Father from 15^th May onwards, even if they were events leading up to the incident on 14^th May, which the Mother regarded as “the last straw”.

5. However, the incident of 14^th May 2015 is a serious one and it is not difficult to see why the Mother was extremely concerned. She arrived to pick up the child at 5:05 pm only to find that he was missing and the father had last seen him 20 minutes earlier. The child had left the house and was somewhere roaming the streets, where he was located and brought back by a neighbour shortly after 5:30pm. As the mother deposed, it was dark, which is to be expected at 5:30 pm in Sydney in Winter. The child was less than four years old at the time.

6. The Mother had, in my view, a reasonable ground for forming a belief that the Father had failed to supervise the child adequately, or at all. The three contraventions were all in a short space of time. The first one related to the Father commencing to spend time with the child at 5:00pm the following day, and the next two followed at intervals of three days.

7. It is hardly surprising that the Mother formed the belief that not allowing the child to go into the care of the Father was necessary to protect the child’s health and safety. I am satisfied that the belief was formed on reasonable grounds.

8. However, the Mother must also establish that the period during which the child and his father did not spend time together was not longer than was necessary to protect the child’s health and safety.

9. Again, it is hardly surprising that the Mother withheld the Father’s contact with the child on Friday 15^th May, the day after the child had gone missing. She was concerned about the Father’s attitude to the incident, as he appeared not to appreciate the seriousness of the matter.

10. The Father deposed in his affidavit of 28^th May 2015 that the Mother had sent him a text message at 3:34 pm on Friday 15^th May saying:

    Hi Mr Kaye, after last nights events I feel it necessary for X’s safety that he not go to your care again tonight. My lawyer will be contacting your lawyer to this regard. Sincerely, Ms Allison.[13]

    [13] Affidavit of  Mr Kaye 28.5.2015 at [7]

11. The Father replied by text message at 3:48 pm:

    Hi Ms Allison. When I was younger than I also went walkabout. The police found me a street away. This happened twice… I had a serious talk with X and he had quite a shock. I am not trivialising this matter please do not over exaggerate it. I will be at your residence @ 5pm as per the court ordered parenting orders.[14]

    [14] Ibid

12. She telephoned her solicitor on 15^th May to report the incident and seek advice.

13. In my view, the Father’s response to the Mother on 15^th May was quite inadequate and would have done nothing to allay her concerns. He made no promise to supervise the child more closely, all he did was say that he had had “a serious talk” with the child, who was then aged three years and nine months.

14. In the light of the Father’s response within a day of the incident happening, which seemed to involve a “business as usual” attitude, I am satisfied on the balance of probabilities that the Mother has established a reasonable excuse for the contravention on 15^th May 2015.   

15. The Mother spoke to the solicitor again between 20^th and 26^th May. The solicitor wrote to the Father on two occasions, as set out above.

16. The second contravention occurred on 18^th May, the following Monday, when the Father again went to the house to collect the child and was again refused. There is no evidence that the Father had made any serious proposal to exercise greater care of the child or that he had even acquired any greater understanding of the Mother’s concern about his welfare. This concern was well-founded, in my view.

17. I am satisfied to the requisite standard that the Mother has established a reasonable excuse for the contravention on 18^th May 2015.

18. The third contravention took place on 21^st May, a week after the incident. By this stage the Mother had already had legal advice. She could not continue with her unilateral suspension of the Orders indefinitely. She needed to do something further. As Counsel for the Applicant submitted, she should have moved the Court to suspend or vary the Orders.

19. The Mother relies on the fact that there was a final hearing to take place in August and the Court was very busy. That is not a sufficient explanation, in my view. The Mother’s response was to have her solicitor send two letters and then suspend the Orders for three months. True it is that the Court was busy, it always is, but the Mother made no attempt to bring the matter back to Court.

20. As the Full Court said of the husband in Gaunt that he did not apply to vary the order that he had contravened.[15]

    [15] (1978) 4 Fam LR 305 at 308; FLC 90-468 at 77,398

21. Even allowing for the fact that the Court may be busy and there was a hearing scheduled to take place in three months’ time, the fact that the Mother persisted with her unilateral suspension of the Orders without taking any step to suspend or vary the Orders, indicates that the suspension, which was a contravention, was going on for too long to be considered to be not longer than was necessary to protect the health or safety of the child.

22. The Mother’s solicitors’ second letter did nothing more than reiterate the Mother’s ongoing intention to suspend the operation of the Orders until the final hearing and advise the Father to obtain legal advice. The Mother should have been taking steps to bring an Application in a Case to vary or suspend the orders, even if the Application had not been completed by 21^st May.

Conclusions

1. The Respondent Mother has established a reasonable excuse for the contraventions in Counts 1 and 2, relating to 15^th and 18^th May 2015. However, she has not shown a reasonable excuse for the contravention in the third count, relating to 21^st May 2015.

1. The Respondent has, on 21^st May 2015, without reasonable excuse, contravened Order 5(a) made on 29^th January 2014.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  23 October 2015