Keane & Keane
[2021] FedCFamC1F 45
•3 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Keane & Keane [2021] FedCFamC1F 45
File number(s): LNC 306 of 2018 Judgment of: MCGUIRE J Date of judgment: 3 November 2021 Catchwords: FAMILY LAW – CONTRAVENTION APPLICATION – Parenting orders & mother does not present child to contact centre – Pleas of not guilty to each count – Findings of contravention of orders on all counts Legislation: Family Law Act 1975 (Cth) s 70NAC Division: Division 1 First Instance Number of paragraphs: 47 Date of hearing: 10 September 2021 Counsel for the Applicant: Ms Higgins Solicitor for the Applicant: Bishops Counsel for the Respondent: Ms Hunt Solicitor for the Respondent: Legal Aid Commission of Tasmania ORDERS
LNC 306 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KEANE
Applicant
AND: MS KEANE
Respondent
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
3 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The Court finds that the mother Ms Keane contravened the orders of McEvoy J of 8 May 2020 on 27 November 2020, 8 January 2021, 22 January 2021, 5 February 2021 and 19 February 2021.
2.
The matter be listed in the Federal Circuit and Family Court of Australia sitting in B Town before Justice McGuire at B Town at 9.00am on Wednesday
3 November 2021 for the submissions as to penalty.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Keane & Keane has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE J
APPLICATION
This is a contravention application filed by the father, Mr Keane, on 2 March 2021 alleging that the mother, Ms Keane has contravened orders of this Court made by McEvoy J on 8 May 2020 by five separate counts of the same particulars on the following dates: – 27 November 2020, 8 January 2021, 22 January 2021, 5 February 2021 and 19 February 2021 by not presenting the child for time-with visits with the father.
The relevant order alleged breached provides:
The child spend time with the father gradually progressing as follows:-
(a)For eight fully supervised one hour visits at the BCS or is otherwise ordered on a weekly basis by way of reintroduction with specific days and times as proposed by the BCS or otherwise;
…
The relevant child is X born in 2016 (aged four years).
A substantive parenting trial was heard over thirteen days of evidence between 18 July and 19 November 2019. His Honour Justice McEvoy handed down reasons and orders on 8 May 2020. Those orders provided inter-alia for the mother to have sole parental responsibility for X and for X to spend time with the father, initially fully supervised at the B Contact Service, and then progressing to time during school terms for four days per fortnight and half of school holidays.
It is relevant to observe that at the trial the mother argued that the father posed an unacceptable risk of harm to X and that the child should spend no time with the father. The mother alleged a history of the physical, sexual, verbal and coercive violence perpetrated on her by the father. Further, the mother argued that any orders providing time for X with the father would impact on the mother's parenting capacity in accordance with the well-known decision of the Full Court in Re: Andrew.[1]
[1] (1996) FLC 92 – 692.
The mother lodged a Notice of Appeal on 3 June 2020 and brought an application for a stay of the parenting orders on 13 July 2020 to which the trial judge acceded save and except that the fully supervised time pursuant to order for 4(a) continue in full force and effect pending the determination of the Appeal.
The Appeal was heard before the Full Court on 13 November 2020 and dismissed by orders of 18 January 2021.
The father alleges generally that the mother was dilatory or reluctant to engage with the BCS to permit the commencement of the time-with pursuant to order 4(a). Suffice to note that the first visit for X with the father was not scheduled until the 30 October 2020, such being cancelled due to resource issues and not in any way at the fault of either parent.
Despite order 4(a) anticipating weekly visits, BCS were able to accommodate only fortnightly supervised visits for X and the father for one hour between 3:30pm and 4:30pm with a direction that the mother arrive with X at 3:15pm.
This matter was listed for hearing in B Town on 16 August 2021. When the matter was called, solicitors for the respondent mother sought leave to withdraw due to an apparent conflict in their instructions. The mothers is of Country Corigin. English is not her first language although notably her most recent employment appears to have been as a language professional. The mother alleged serious family violence during the substantive trial. As such, the adjournment was granted together with an order pursuant to s 102NA of the Family Law Act1975 (Cth) (‘the Act’) directed to the Legal Aid Commission of Tasmania with a request for legal representation for the mother under the available funding with a request that the application be expedited. A condition of the adjournment was that the mother provide an undertaking to the Court that time for X with the father resume and continue, there having been no visits since January 2021.
It eventuated at the hearing of the matter on 10 September 2021 that the mother was represented by Ms Hunt who is the duty lawyer for Legal Aid Commission in B Town. The Court is grateful for the assistance rendered by Ms Hunt who, from my observations, provided the mother with professional and proper advocacy including intrusive cross-examination of the father.
The mother had the benefit of an interpreter provided by the Court and again despite her occupation as a language professional but where the mother understandably claims some difficulty with understanding legalese.
Pleas of not guilty were entered through counsel to each of the five counts of alleged contravention.
ALLEGED CONTRAVENTION – 27 NOVEMBER 2020
The father relied on his application and affidavit both affirmed on 2 March 2021.
At [17] of his affidavit the father deposes that he attended BCS at the scheduled time on 27 November 2020 which was a designated fortnightly period of supervised time pursuant to order 4(a) of the substantive orders. He says that he was advised that the mother had not attended and that the Contact Centre were unsuccessfully attempting to contact the mother by telephone and text message. The father says that he waited outside the Contact Centre without X being made available and the Contact Centre confirming with him that they did not receive return communications from the mother.
In cross-examination the father confirmed that he received telephone communications from BCS at about 3:25pm and 4.00pm advising that that the mother had not returned calls and not arrived at the Centre.
The mother did not provide an affidavit which is her prerogative under the Rules of this Court. She gave viva voce evidence. The mother says that she was running late for the visit and held up by traffic. She says that she notified the BCS and arrived at approximately 3:30pm whereupon she was kept waiting by the receptionist and did not contact the designated worker at the Centre until ‘a bit more than 3:30pm when I was told that the visit had been cancelled'.
The mother says that she was present at the Centre at 3:30pm because 'I looked at my watch'.
Relationships Australia file notes of 27 November 2020 were tendered as business records. The author was not brought to court. Those handwritten records state inter-alia:
·RP (residential parent) had not arrived at scheduled time of 3:15pm.
·Telephone calls and SMS sent without response.
·Telephone call to NRP (non-residential parent) at 3:40pm to advise RP and X had not arrived and unable to communicate 'so visit is cancelled'.
·RP arrived with X at 3:45PM (30 minutes late) stating she was stuck in traffic.
RELEVANT LAW
Section 70NAC provides that a person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a)where the person is bound by the order – he or she has:
(i)intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order; or
(b)otherwise – he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it ;
(ii)aided or abetted contravention of the order by a person who is bound by it.
Section 70NAE provides a defence of 'reasonable excuse for contravening an order' being effectively defences at large but specifically including:
(i)where the respondent contravened the order because, or substantially because, he or she did not time of the contravention understand the obligations imposed by the order;
(ii)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health and safety of a person including respondent or the child, and that the period during which the child and person did not spend time together was not longer than is necessary to protect the health or safety of the person.
In the matter now before me the mother entered pleas of not guilty and did not plead a defence of reasonable excuse to any of the counts.
The onus of proof sits with the applicant to prove the allegations, and the particulars thereof, on the balance of probabilities.
CONSIDERATION
Order 4(a) of the substantive orders of 8 May 2020 provide for X to spend time with the father.
Those orders effectively delegate the details and arrangements to the B Contact Service.
The mother in her evidence confirmed that she was aware of the orders, the arrangements, and her obligations.
The orders, through their delegations, obliged the mother to be at the BCS at 3.15pm (and for obvious reasons involving her own assertions of a history of family violence).
The mother by her own admission did not arrive until 3:30pm. The unchallenged records of the BCS show the mother arriving at 3:45pm with the Centre having advised the father at 3:40pm that the mother had not arrived and hence cancelling the visit. The mother's obligation was to arrive at 3:15pm.
By her own admission, therefore, she breached the orders. Although not argued, this is not an issue of de minimis breach. The BCS provides a service for the community and not simply for this family unit. It is reasonable to expect that appointments are made throughout the day and it is also reasonable to expect that parties adhere to the times dictated by the Centre and ultimately through the Court orders.
On the mother's own admission, therefore, I find the count proven.
COUNTS TWO, THREE, FOUR AND FIVE
The remaining counts have similar particulars namely that on or before the designated day the father received communications from BCS to the effect that the mother had cancelled the appointments and that she did not to agree for the times to proceed.
The father tendered in evidence a letter from relationships Australia of 2 February 2021 addressed to him which states the following:
Dear Mr Keane,
As discussed on the telephone on 21 January 2021, Ms Keane has advised the B Contact Service (‘BCS’)that she is currently not in agreement to use the Service until she seeks further legal advice. Therefore, the BCS is unable to offer Supervised Visits for yourself with X at this point in time.
Given there is currently no agreement to use our Service, we will place your file on hold. If we do not hear from the other party seeking to resume our Service within 3 months your file will be closed.
This unchallenged evidence of the BCS corroborates the father’s evidence.
The mother gave no evidence specifically or directly in respect of the second count of contravention on 8 January 2021. In cross-examination, however, she agreed that on 6 January 2021 she contacted the BCS to postpone the forthcoming contact visit 'until I had a meeting with staff'. She agreed that she intended to have a meeting with the Centre staff but had not finalised a date by 8 January 2021. The mother during cross examination said that she wanted a meeting because there 'was lots of information I wasn't able to understand … rules and regulations of the Contact Centre…'.
The mother conceded that she did not present X at the Contact Centre on 8 January 2021.
The mother conceded that she did not present X to the Contact Centre at the appointed time, or at all, on 22 January 2021 which is the subject of count three. She concedes that she did not present X at the Contact Centre on 5 February 2021 or 19 February 2021 being in respect of counts 4 and 5.
In cross-examination the mother said that she had participated in a meeting with the BCS on the previous day being 21st of January 2021. She has attended with her own support person and met with two staff namely Ms AC and Mr AD. The mother says her concerns then revolved around the father providing food and/or gifts to the child at a previous visit.
The mother said that she was told by the Contact Centre to get legal advice in respect of her complaint. The mother says, and it appears conceded, that she did not receive a copy of the letter of 2 February 2021 sent to the father or a letter to her in similar terms.
The file notes obtained under subpoena to BCS and tendered in evidence, and not challenged, note the mother 'postponing' visits from 7 January 2021 and that she was advised to seek legal advice in respect of any complaints.
The father's affidavit at [32] confirms the above when he says:
The Contact Centre also advised that Ms Keane had made contact with them and that Ms Keane was ceasing all visitation as she 'no longer agreed' and I was advised the Centre would forward me paperwork in respect of that. I received this correspondence dated 2 February 2021 which states that Ms Keane is not currently in agreement with the use of the Centre and therefore they were unable to offer me supervised time with X.
There is no evidence of the mother initiating any prudent legal intervention or communications by lawyers with the father. The result was that the father did not to spend time with X until after the adjournment application by the mother in this Court in August 2021. The mother did not bring an application to this Court to vary, discharge or suspend the orders.
The mother had previously enjoyed legal representation and assistance at the substantive trial and the Appeal and presumably until the application before this Court on the anticipated hearing of the contravention applications on 16 August 2021.
The mother stated in cross-examination that she was aware of her obligations under the substantive orders of the McEvoy J. The mother does not plead a reasonable excuse.
The evidence is that the mother retreated from the ‘agreement’ she had reached with the Contact Centre. Such ‘agreement’ is not part of or even collateral to the Court Order. That is, the mother’s obligations under the Court Order remained regardless of the status of any separate agreement she may have made with the Contact Centre.
I find counts two – five on the application proven. The orders set out the obligations as particularised by the Contact Centre. I am satisfied that the mother unilaterally rescinded the agreement between the parties and the Contact Centre. I am satisfied that she did not present X at the Contact Centre on the appointed days and at the designated times. Effectively, she is convicted on her own admissions. Although not raised as a defence, in any event, should the mother have had a complaint in respect of the process, reasonable or otherwise, then she had an obligation under s 70NAE(5) to bring an application to this Court to discharge, vary or suspend the orders. She did not do so. Effectively, therefore, the breach was a continuing one until August 2021 when I obtained an undertaking from the mother that time would be resumed upon the Court granting her application for an adjournment.
Consequently, I find counts one, two, three, four and five on the application proved.
I will list the matter for submissions as to the penalty phase.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 3 November 2021
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