KAYE & ALLISON (No.2)

[2015] FCCA 2889

FEDERAL CIRCUIT COURT OF AUSTRALIA

KAYE & ALLISON (No.2) [2015] FCCA 2889

Catchwords:
FAMILY LAW – Children – parenting orders – contravention of parenting orders – where party found to have contravened an order without reasonable excuse – where no court has previously made an order imposing a sanction or taking any action in respect of a contravention of the primary order.

COSTS – Where neither party wholly unsuccessful – parties to pay their own costs.

PRACTICE AND PROCEDURE – Transfer to Family Court – where respondent seeks to relocate the residence of the child out of Australia – Protocol between Family Court of Australia and Federal Circuit Court of Australia considered – where request for transfer made by respondent in amended Response.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 70NEA, 70NEB, 117

Federal Circuit Court Act 1999 (Cth), s.39
Federal Circuit Rules 2001, r.8.02

Cases cited:
Kaye & Allison [2015] FCCA 2840

Applicant: MR KAYE

Respondent: MS ALLISON

File Number: SYC 7760 of 2013

Judgment of: Judge Scarlett

Hearing date: 23 October 2015

Date of Last Submission: 23 October 2015

Delivered at: Sydney

Delivered on: 23 October 2015

REPRESENTATION

Solicitor for the Applicant: Mr Dowdle

Solicitors for the Applicant: Clinch Long Letherbarrow Lawyers

Counsel for the Respondent: Ms McIntosh

Solicitors for the Respondent: Everett Evans

ORDERS

1. Order 5(c) made on 29 January 2014 is suspended until 29 January 2016.  

2. The Applicant Father must ensure that the child X born (omitted) 2011 is kept under the supervision of a responsible adult at all times.

3. To avoid confusion, in all other respects the Orders made by consent on 29 January 2014 remain in force.

4. The parties are to pay their own costs.

5. In accordance with Section 39 of the Federal Circuit Court Act 1999 the proceedings are transferred to the Family Court of Australia at Sydney to be listed before a Registrar at 9:30 am on 28 January 2016.  

IT IS NOTED that publication of this judgment under the pseudonym Kaye & Allison (No.2) 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

1. The proceedings between the parties involve substantive applications for parenting orders and a particular application by the Father for the Mother to be dealt with for contravention of interim orders that were made by consent on 29^th January 2014. 

2. There were three contraventions alleged.  In each case the Respondent Mother admitted the contraventions but said that she had a reasonable excuse. It is, of course, incumbent on the person who alleges a reasonable excuse to establish that reasonable excuse.  This morning I handed down a decision in which I found that the Mother had established a reasonable excuse in respect of the first two counts but not the third count (Kaye & Allison[1]). 

   [1] [2015] FCCA 2840

Powers of the Court

1. What now must happen is that the Court must consider what steps should be taken in respect of a contravention without reasonable excuse. I look first of all at the provisions of subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth). Under section 70NEA where a primary order has been made, and a Court is satisfied that a person has committed a contravention of the primary order, and the person does not prove that he or she had a reasonable excuse for the current contravention, either subsection (2) or subsection (3) of the section applies.

2. In my view, subsection (2) of section 70NEA applies. That says:

   For the purposes of paragraph (1)(d) this section applies if no 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.

3. Subsection (4) says that:

   The subsection does not apply if, in circumstances mentioned in subsection (2), the court dealing with the current contravention is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under the primary order.

4. It has not been put to the Court that the Respondent has behaved in a way that shows serious disregard for her obligations under the primary order.  I am satisfied on the evidence that subsection (4) does not apply. 

5. What that means then is that the Court looks to its powers under section 70NEB of the Act, and subsection (1) contains a list of the things that the court may do:

   (a) The court may make an order directing the person who committed the current contravention, or another person to attend a post-separation parenting program; 

   (b) If the current contravention is a contravention of a parenting order in relation to a child, make a further parenting order that compensates a person for time the person did not spend with the child;

   (c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;

   (d) make an order requiring the person who committed the current contravention to enter into a bond in accord with section 70NEC;  or

   (e) the court may make an order requiring the person who committed the current contravention to compensate the person for some or all of the expenses referred to in sub paragraph (iii) of paragraph (e);

   (f)  make an order for costs.  

Submissions

1. I have considered those matters. Mr Dowdle, for the Father, has submitted to the Court that his client seeks orders essentially in line with the Minute of Orders submitted to the Court earlier this week.  He was at pains to point out that what his client sought was a resumption of the operation of the existing Orders, and noted that it had been some five months since the Father had spent time with the child in accordance with the orders.  His client is particularly keen that that regime should recommence.

2. Mr Dowdle did submit that there should be an easing into the arrangement, or perhaps an easing back into the arrangement, and submitted that for a relatively short period of time that there should be, to use the vernacular, daytime contact only before the orders resumed in their entirety.  I have given that some consideration.

3. Mr Dowd also indicated to the Court that legal proceedings, not surprisingly, were stretching his client’s finances.  His client had, on occasions, been without the benefit of legal representation, although for the purpose of these proceedings he had counsel at the earlier hearing and his solicitor appearing for him today.  His client, however, is particularly concerned that the matters should progress but that there should be a resumption of his face-to-face time with his son. 

4. An offer was made in respect of supervision.  One suggestion was that the Applicant’s new wife should be the supervisor, but the Respondent is reluctant to accede to that suggestion for two reasons.  One, she does not know the lady and, two, the lady concerned has a young baby and I think it is well known that young babies can be very time consuming.  So that the lady concerned, even with the best will in the world, may just not have the time available to supervise this active and inquisitive young child, because it is quite clear from the evidence that the child X is, in fact, active an inquisitive.

5. Ms McIntosh of counsel has submitted that the Court should hasten slowly and act with great care in making any orders arising from the Court’s finding, and referred the court to the provisions of section 60CC of the Family Law Act 1975, which, of course, is the section that assists the Court in determining what are the children’s best interests.

Transfer to the Family Court

1. I am also taking into account the fact that there is an application by the Respondent contained in her amended response, filed in Court on 8^th September, to vary the scope of the proceedings significantly in that she seeks in her Amended Response an order in her favour permitting her to relocate the residence of the child back to (country omitted).  The Respondent is originally from (country omitted) and wishes to return home, and wishes to take the child with her to live in (country omitted).

2. There are interim orders sought in that response seeking to suspend Orders 4, 5 and 6 of the interim orders of 29^th January, Order 5 being the order in its various forms that was the subject of the contravention proceedings.  There are orders sought for the Father to spend supervised time with the child and an order that, in the knowledge that the Mother is seeking leave to file an amended response seeking orders that she be allowed to move the residence of the child to (country omitted), an application that the matter be transferred to the Family Court of Australia. 

3. It is, I think, well known that there is a protocol between the Federal Circuit Court and the Family Court relating to international relocation matters and other matters of greater complexity. Matters that are anticipated to take more than four days hearing time, matters of international relocation, matters relating to The Hague Convention on the civil aspects of if an actual abduction of children are customarily dealt with in the Family Court under the protocol.  So the substantive proceedings, as the Mother now seeks them to be, should, therefore, more properly be dealt with in the Family Court.

4. Transfers are made by this court to the Family Court, or the Federal Court where appropriate, under the provisions of section 39 of the Federal Circuit Court of Act 1999 (Cth).  There are a number of matters to which the Court must have regard, including the length of time and complexity of the matter, the interests of the administration of justice, whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding, and any other matters prescribed by the court rules.

5. Rule 8.02 covers transfers to the Federal Court or the Family Court:

   The court may, at the request of a party or of its own motion, transfer a proceeding to the Family Court.  Unless the court otherwise orders, a request for transfer must be made on or before the first court date. -

6. I accept the fact that did not happen here:

   Unless the court otherwise orders, the request must be included in a response or made by application supported by an affidavit .

7. Quite clearly, the Respondent has sought, in her Amended Response, a transfer to the Family Court for the reasons which I have set out.  The Court must consider whether the proceeding is likely to involve questions of general importance such that it would be desirable for there to be a decision of the Family Court on one or more points.  The Court must consider whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred, and whether the proceeding will be heard earlier in the court, and the availability of particular procedures appropriate to the class of proceeding, and the wishes of the parties.

8. There is certainly a wish by the Respondent that the matter should be transferred to the Family Court and, indeed, as I said, it is a protocol between the Courts that matters of international relocation should be dealt with in that court.  I propose, therefore, at the completion of these proceedings, to make an order for transfer.

Orders

1. That brings me back to the orders that the Court should make as a result of the finding in the contravention proceedings. I have set out a list of the powers of the court under subsection 70NEB(1) of the Family Law Act 1975. What the Respondent has sought is, in fact, an adjournment of the proceedings under paragraph (c) to allow either or both of the parties to the primary order to apply for a further parenting order that discharges various or suspends the primary order, or revives some or all of an earlier parenting order.  The Respondent has, in fact, done that. She has made that application in her Amended Response. 

2. The Respondent has certainly put to the Court her view that the current orders are not in the child’s best interests and, as I said, I have been referred to the provisions of section 60CC of the Family Law Act 1975.  I think it is clear that a Court should consider the application by the Mother in her Response for interim orders varying the Consent Orders of 29^th January.  I do not consider that it is necessary to retain the matter in this Court in order that this Court may deal with that application.  The Family Court has ample power to hear interim applications for parenting orders and it does quite frequently.

3. What must be made clear is that the orders contravened remain in force.  They have not been suspended.  They were not acted upon  because the Mother chose not to act upon them.  There was, as I said, at the time no application to vary the orders or suspend or discharge them.  That application was only made by this response which was filed as recently as 8^th September.  So the orders remain in force though Mr Dowdle, as I said, has submitted that some modifications should be made, at least on a temporary basis, to ease the face-to-face time that the Father enjoys with his son back into force.  There is some force to that submission. 

4. One suggestion is that, for the time being, that there should be daytime contact only. Another one is that there should be an order for supervision, as I mentioned.  My view is that there is much to be said for a temporary modification of the orders to allow for X to get used to a change in the regime but to bring in, what appear to me to be, necessary restrictions to protect his interests until this matter can be litigated in more detail in the Family Court.  It is for those reasons that I propose to vary the orders that are currently in place, and I will make those orders in just a short time.

Costs

1. I also consider the question of costs which applies under paragraph (f) of subsection 70NEB(1). When looking at the proceedings before the court for the contravention, I must still apply the provisions of subsection 117(2A). One important feature is whether a party has been wholly unsuccessful in the proceedings. It can fairly be said that neither party has been wholly unsuccessful in the proceedings. There were three contravention allegations made by the applicant. The Respondent was successful in establishing a reasonable excuse in respect of two of them. The Applicant can be said to have been successful in establishing one of the three allegations that he made. Thus, as I said, it cannot be said that neither party has been wholly unsuccessful.

2. It is for these reasons that I consider that the most appropriate order should be that the parties pay their own costs. 

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  27 October 2015