Keightley and Keightley (No 4)
[2010] FamCA 1160
•20 December 2010
FAMILY COURT OF AUSTRALIA
| KEIGHTLEY & KEIGHTLEY (NO. 4) | [2010] FamCA 1160 |
| FAMILY LAW – ORDERS – contravention – where the parties have filed applications alleging contravention of previous orders by the other – where the alleged contraventions have been brought pursuant to Part VII Division 13A – consideration of whether contraventions have been pursued through the appropriate legislative avenue – where it was held that the contraventions could be dealt with either under Part VIIA Division 13A or Part XIIIA – whether there exists a reasonable excuse – where it was held that the father did not have a reasonable excuse – where the matter was adjourned in relation to the sanctions to be imposed |
| Family Law Act 1975 (Cth) ss 64B, 68A, 68B, 70NAC, 70NAE, 112AA, 112AB, 112AC & 114 Family Law Rules 2004 r 1.04, 1.12, 2.01, 11.10, 11.12 & 21.01 |
| Cales & Cales [2010] FamCAFC 237 Elspeth & Peter; Mark & Peter and John & Peter (Penalty & Costs) (2008) 37 FamLR 696 |
| APPLICANT: | Ms Keightley |
| RESPONDENT: | Mr Keightley |
| FILE NUMBER: | ADC | 4573 | of | 2008 |
| DATE DELIVERED: | 20 December 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 6 and 7 December 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | In Person |
Orders
The Contravention Application filed by the father alleging contravention by the mother of paragraph 25 of the order of 7 December 2009 is dismissed.
Upon noting that the Court finds that the father contravened paragraphs 26 and 29 of the order of 7 December 2009 without reasonable excuse the applications are adjourned for submissions on the sanctions to be imposed.
The matter is therefore adjourned to 1 March 2011 at 9.15 am before the Honourable Justice Dawe.
IT IS NOTED that publication of this judgment under the pseudonym Keightley & Keightley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4573 of 2008
| MS KEIGHTLEY |
Applicant
And
| MR KEIGHTLEY |
Respondent
REASONS FOR JUDGMENT
Introduction
By Contravention Application filed on 5 March 2010 the mother Ms Keightley (“the mother”) made numerous allegations that the father Mr Keightley (“the father”) had contravened an order under Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Judgment was reserved in relation to the two contraventions referred to in paragraph 15 and paragraph 17 of the Application for Contravention filed on 5 March 2010, namely that the father had contravened paragraph 26 of the order of 7 December 2009 having without reasonable excuse failed to pay the mother the amount of $3,500 and that the father had contravened paragraph 29 of the order of 7 December 2009 having without reasonable excuse failed to pay the mother the amount of $2,500. (See document 79 on the Court file).
The other alleged contraventions were dealt with at the hearing by way of ex-tempore judgment, dismissal or consent orders.
The father also filed Contravention Applications on 27 May 2010 and 28 May 2010. All but one of those alleged contraventions were dealt with by ex-tempore judgment or consent order. Judgment was reserved on the application by the father that the mother had contravened an order under Division 13A of Part VII of the Act in reference to paragraph 25 of the orders of the Court of 7 December 2009 in that it was alleged that the mother “has to return the bond as per the order’s (sic) made on 7th Dec 2010 (sic) in paragraph 25”.
Annexed to the contravention was the order of the Court of 7 December 2009.
In relation to each of the contraventions the person alleged to have committed the contravention admitted that the order had not been obeyed, but each of them claimed that he or she had a reasonable excuse for that failure.
Hearing
The large number of contraventions contained in the three contravention applications (one filed by the mother and two filed by the father) were heard on 6 and 7 December 2010. Both the mother and father were unrepresented.
The mother relied upon her affidavits filed on 5 March 2010, two affidavits filed on 15 November 2010 (being in response to the Contravention Applications filed by the father on 27 May and 28 May 2010), her affidavit filed on 22 November 2010 and her affidavit filed on 1 December 2010.
The father relied upon his affidavits filed on 27 May 2010 and 28 May 2010.
At the hearing I heard oral evidence from each of the parties.
Background
Proceedings commenced in the month of February 2009 when the father instituted proceedings in the Federal Magistrates Court of Australia in Adelaide.
The proceedings concern the welfare of the children A born in May 1997 and P born in April 2000.
An Independent Children’s Lawyer was appointed for the children.
Paragraph 1 of the order made by Federal Magistrate Simpson on 29 April 2009 is relevant to the current proceedings. The father appeared in person, the mother was represented by Mr McMonnies and Mr Charman appeared as the Independent Children’s Lawyer. That consent order provided that during the period of the adjournment:
“The mother do return the children [A] born […] May 1997 and [P] born […] April 2000 to a place of residence in Adelaide or its environs on or before the weekend of 16 and 17 May 2009 PROVIDED THAT the father do provide financial support to the mother to cover the cost of the mother and the said children returning from Melbourne to Adelaide, together with such monies as may be required to cover any bond that the mother may be required to deposit for rental accommodation and the cost of that rental accommodation for a period limited to three (3) calendar months’ rent, with such rent not exceeding three hundred and fifty dollars ($350.00) per week,”
The evidence before me indicated that both parties agreed that pursuant to that order the father paid the mother $6,000.
There were further proceedings in the Federal Magistrates Court between the parties.
On 25 September 2009 the proceedings were transferred to the Family Court of Australia.
On Monday 7 December 2009 the matter was listed for directions.
The father was represented by Mr Bolton, the mother by Ms O’Keefe and Mr Charman appeared as the Independent Children’s Lawyer. A consent order was made which provided (inter alia) that the parties have equal parental responsibility for the children A and P. Specific orders were made for each of the children to spend time with the other parent with A living with the mother at all other times and P living with the father at all other times. The order in relation to A living with the father was made subject to A’s wishes. The orders were detailed and specific.
There were other detailed particular orders in relation to ancillary matters. The particular paragraphs of the order of 7 December 2009 relevant to the contravention proceedings were the following:
“25.The mother do assign all her rights and interest in the property in which she currently resides at [W] and for which she currently pays rent. And provided the rent is paid and the utilities are paid for up until the date of the mother vacating, then the father do indemnify the mother for all further rent and utilities on the said rental premises and the father do receive any bond lodge on the said premises.
26.The father do pay the mother the sum of $3,500.00 which is to be taken into account as part of the final property settlement anticipated in due course between the parties as an asset in the mother’s hand.
…
29.The father do pay to the mother an additional sum of $2,500.00 in order to assist with any re-location costs and purchase of necessary household items and in lieu of any funds allegedly outstanding the subject of the mother’s contravention applications to be withdrawn.”
The final consent orders provided for each of the mother and father to discontinue any current contravention proceedings against the other. (See paragraphs 27 and 28 of the order 7 December 2009).
The evidence before the Court at the contravention hearing indicated that shortly after the consent orders were made on 7 December 2009 the parties began negotiations to finalise property settlement proceedings between them and to reach agreement about a variation to the children’s orders. These negotiations proceeded for some time but were unsuccessful.
The orders for the payment of money by the father to the mother and the order in relation to the bond paid on the W property need to be seen in the context of paragraph 24 of the order of 7 December 2009 which by consent provided that the mother was to relocate her residential address (and that of the children when they live with her) from W to E “or some other place within 10 km of the [F] Primary School”.
Proceedings in relation to the children finished on 7 December 2009.
On 26 February 2010 the father filed fresh Initiation Application in Federal Magistrates Court seeking final orders in relation to A.
The mother filed her contravention proceedings in March 2010.
The proceedings were transferred to the Family Court of Australia on 22 March 2010.
The proceedings for further final orders are outstanding.
The Law and discussion of its application to the orders alleged to have been contravened
At the hearing on 6 and 7 December 2010 the unrepresented parties were asked for their submissions on the categorisation of the orders and whether each order fell within the provisions of s70NAC or s112AB. It was not surprising that the unrepresented litigants were unable to provide the Court with assistance in this regard.
Both parties have completed the Application-Contravention by indicating in Part A of the Contravention Application that they sought the respondent be dealt with “under Division 13A of Part VII of the Family Law Act (for example an order affecting children)”. (See paragraph 1 of Part A of each of the Contravention Applications).
Division 13A of Part VII of the Act includes section 70NAC:
Section 70NAC
Meaning of contravened an order
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; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
Note: Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of a subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.
Section 4 of the Act defines “order under this Act affecting children” as follows:
Order under this Act affecting children”, in relation to a court, means:
(a) a parenting order; or
(b) an injunction granted by the court:
(i) under section 68B; or
(ii)under section 114 in so far as the injunction is for the protection of a child; or
(c) an undertaking given to, and accepted by, the court:
(i)that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or
(ii)that relates to a bond referred to in paragraph (g); or
(d) a subpoena issued under the applicable Rules of Court:
(i)that relates to, or to the making of, an order or injunction referred to in paragraph (a) or (b) or a community service order referred to in paragraph (f); or
(ii)that relates to a bond referred to in paragraph (g);
being a subpoena issued to a party to the proceedings for the order, injunction or bond, as the case may be; or
(e) a registered parenting plan within the meaning of subsection 63C(6); or
(f) a community service order made under paragraph 70NFB(2)(a); or
(g) a bond entered into:
(i) under a parenting order; or
(ii) under paragraph 70NFB(2)(b); or
(iii) for the purposes of subsection 70NFG(6);
and includes an order, injunction, plan or bond that:
(h) is an order under this Act affecting children made by another court because of paragraph (a), (b), (e) or (g); and
(i) has been registered in the first‑mentioned court.
The relevant sub-paragraphs are (a) and (b).
In section 4 a “parenting order” is defined as follows:
"parenting order" has the meaning given by subsection 64B(1).
Section s64B states:
Meaning of parenting order and related terms
(1) A parenting order is:
(a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or
(b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a).
Section 64B(2) states:
(2) A parenting order may deal with one or more of the following:
(a)the person or persons with whom a child is to live;
(b)the time a child is to spend with another person or other persons;
(c)the allocation of parental responsibility for a child;
(d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
(e)the communication a child is to have with another person or other persons;
(f)maintenance of a child;
(g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:
(i) a child to whom the order relates; or
(ii) the parties to the proceedings in which the order is made;
(h)the process to be used for resolving disputes about the terms or operation of the order;
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The person referred to in this subsection may be, or the persons referred to in this subsection may include, either a parent of the child or a person other than the parent of the child (including a grandparent or other relative of the child).
Note: Paragraph (f)--a parenting order cannot deal with the maintenance of a child if the Child Support (Assessment) Act 1989 applies.
Paragraphs 25, 26 and 29 of the order of 7 December 2009 would be difficult to categorise as parenting orders under any of the provisions of s64B(2) other than possibly s64B(2)(i) which refers to
(i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The definition of “order under this act affecting children” in s4 includes a reference to an injunction under s68B or under s114 “so far as the injunction is for the protection of a child”.
Section 68B of the Act provides:
Injunctions
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i)a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v)a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
(Emphasis added)
The beginning of the s68B simply refers to such order as it considers appropriate for the welfare of the child, but then continues using the expression “including”. There is no specific reference in that section (as there is in other sections of the Act) to the phrase “but not limited to”.
The recent Full Court decision of Cales & Cales [2010] FamCAFC 237 delivered on 26 November 2010 suggests in paragraph 7 that use of the word “including” implies that the conditions are not limited to those to which expressed reference is given.
Section 68B should be considered in the context of the provisions of s68A, the heading for which states “What this Division does”. The section then reads:
“This Division deals with proceedings for injunctions in relation to children.”
The provisions of s68B(1)(a), (b), (c) and (d) do not apply to the orders under consideration in these contravention proceedings. It is necessary therefore to consider whether the orders are injunctions “in relation to a child” in the more general sense and not limited to those set out in sub-sections 1(a) to 1(d).
Sub-section (2) of s68B refers to the Court’s discretion to:
“… grant an injunction in relation to a child, … in any case in which it appears to the court to be just or convenient to do so.” (Emphasis added)
Again, the reference is granting an injunction “in relation to a child”.
Sub-section (3) of s68B allows the Court to grant an injunction “on such terms and conditions as the Court considers appropriate”.
If the orders alleged to have been contravened are not parenting orders, then it is necessary to determine if they can be classified as injunctions “in relation to a child” or terms and conditions upon which an injunction in relation to a child was made.
It is possible therefore to consider that paragraph 25 of the order of 7 December 2009 was an order in the nature of a condition upon which the other parenting orders were made, including the order that the mother and children relocate to E or within 10 kilometres of the F Primary School. (Paragraph 24 of the Order of 7 December 2009).
Similarly, paragraph 29 of the order of 7 December 2009 which ordered that the father pay the mother an additional sum of $2,500 to assist her in relocation and costs of purchasing household items could be seen as a term or condition of the orders in relation to the children requiring the relocation of the children.
Paragraph 26 is more difficult to categorise as an injunction in relation to a child. It is an order requiring the father to pay the mother the sum of $3,500 which is to be taken into account as an asset of the mother’s in property settlement proceedings.
It may be possible however to consider that paragraph in the context of all of the other paragraphs of the very long order of 7 December 2009 to the extent that it could be interpreted as another condition or term of the orders which were in relation to the children.
If the provisions of Part VII of the Act and the interaction with the definitions in s4 of the Act were not complicated enough consideration of the law is made more difficult by virtue of the provisions of s112AA and s114.
Section 112AA is headed “Interpretation”. It then sets out various definitions of phrases which apply to that Part of the Act (being Part XIIIA headed “Sanctions for failure to comply with orders and other obligations, that do not affect children”). In s112AA the definition of “order under this Act” is as follows:
“"order under this Act" , in relation to a court, means:
(a)an order (however described) made by the court under this Act (other than a parenting order), or
(b) an injunction granted by the court under section 90SS or 114 except in so far as the injunction is for the protection of a child;
(Emphasis added)
Sub-section (c), (d), (e), (f), (g) and (h) of that definition are not relevant for the purposes of this matter.
Section 114(1) begins:
“(1)In proceedings of the kind referred to in paragraph (e) of the definition of matrimonial cause in subsection 4(1), the court may make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate including …”
Section 114(3) provides:
(3)A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.”
If the orders made by the Court on 7 December 2009 in paragraphs 25, 26 and 29 are not parenting orders then they may fall within the definition of “order under this Act” for the purposes of s112AB which provides:
Meaning of contravene an order
(1)A person shall be taken for the purposes of this Part to have contravened an order under this Act 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;
If the provisions of s70NAC are not met because the orders contravened are not within the definition of “order under this Act affecting children” then it is necessary to consider whether all of the contraventions should be dismissed because the unrepresented litigants chose to bring the applications for contravention pursuant to Division 13A of Part VII, or whether the Rules permit the Court to consider the contravention applications under the provisions of Part XIIIA (being contravention of an order however described, other than a parenting order).
Rule 21.01 of the Family Law Rules 2004 provides:
Application of Part 21.1
This Part applies to an application for an order:
(a)to enforce a parenting order;
(b)under Division 13A of Part VII or Part XIIIA of the Act; or
(d)that another person be punished for contempt of court.
The notes to the Rules (not the Rules themselves but merely the notes) are as follows:
Note 1Subsection 69C (2) of the Act specifies who may apply for an order in relation to a child. Division 13A of Part VII of the Act sets out the consequences of failing to comply with an order or other obligation that affects children. Part XIIIA of the Act sets out the sanctions the court may impose on a person who fails to comply with an order or other obligation that does not affect children. Part XIIIB of the Act sets out the punishment the court may impose on a person found to be in contempt of court.
Note 2If a maintenance order is complied with before an Application for Contempt is heard by the court, the failure to comply with the order that led to the Application for Contempt being filed does not constitute a contempt of court (see subsection 112AP (1A) of the Act).
(Emphasis added)
The wording of the Act however refers to an order which is “other than a parenting order” not one that does not affect children.
The provisions of Part XIIIA may therefore apply to orders which affect children provided that the orders which affect children are not parenting orders.
Table 21.1 item 2 refers to “Contravention of an order (of a kind included in the definition of an order under this Act affecting children under s70NB of the Act) under Division 13A of Part VII of the Act affecting children, for example, a breach of a parenting order”. Presumably item 2 is meant to refer to s70NAB and not s70NB which was repealed by the Family Law Amendment (Shared Parental Responsibility) Act 2006.
Item 3 of the Table 21.1 in the Rules refers to “Contravention of an order (of a kind included in the definition of an “order under this Act” under s112AA of the Act) under Part XIIIA of the Act not affecting children, for example, a breach of a property order”.
As previously stated s112AA deals with contraventions of orders which are not parenting orders, but may in theory, deal with the contraventions of other orders affecting children.
Rule 2.01 also makes provisions for the filing of applications. Table 2.1 item 8 deals with “Contravention of an order under Division 13A of Part VII affecting children, for example, a breach of a contact order” requiring the application to be an “Application-Contravention”.
Similarly, item 9 refers to “Contravention of an order under Part XIIIA of the Act not affecting children, for example, a breach of a property order” which also requires an “Application-Contravention” to be filed.
Rule 11.10 of the Family Law Rules is headed “Amendment by a party or court order” and provides inter alia-
(1)A party who has filed an application or response may amend the application or response:
…
(c)for all other applications — at any time, with the consent of the other parties or by order.
A note to that section states:
NoteAn amendment of an application may be necessary to ensure that the court determines the real issues between the parties or to avoid multiple cases.
Rule 11.12 sets out steps to be undertaken. Such an amendment was not discussed at the hearing when the parties were present. However such a technical amendment may be appropriate. The Rules provide for the Court to dispense with the Rules on its own initiative (Rule 1.12).
The main purpose of the Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case. (Rule 1.04).
The Court proposes to deal with the contraventions as either under Part VII Division 13A or Part XIIIA.
Definitions of reasonable excuse
If the contraventions are to be considered under Part VII, Division 13A, the meaning of reasonable excuse for contravening an order is set out in s70NAE.
Section 70NAE
Meaning of reasonable excuse for contravening an order
(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 was 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 that a 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)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 live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a)the respondent believed on reasonable grounds that the actions constituting the contravention were 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 did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(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).
(6)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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate 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 communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7)A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a)the respondent believed on reasonable grounds that the action constituting the contravention 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 that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(Emphasis added)
Sub-sections (4), (5), (6) and (7) do not apply to this matter. There was no evidence which suggested that provisions of sub-section (2)(a) apply to any of the contraventions because the person who was required to comply with the order did not understand the obligations imposed to pay money.
The provisions of sub-section (1) of s70NAE are not limited to those specific provisions and leave the question of reasonable excuse for contravening the order open to be determined by the Court in a general sense.
If the contraventions before the Court fall within the definition of section 112AA and therefore come within section 112AB, the meaning of “reasonable excuse for contravening an order” is set out in s112AC which states:
Meaning of reasonable excuse for contravening an order
(1)The circumstances in which a person may be taken to have had, for the purposes of this Part, a reasonable excuse for contravening an order under this Act include, but are not limited to, the circumstances set out in subsection (2).
(2)A person (in this subsection called the respondent ) shall be taken to have had a reasonable excuse for contravening an order under this Act 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 was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
Again, the provisions of sub-section (2) do not apply because there was no evidence to suggest that the parties did not understand their obligations imposed by paragraphs 25, 26 and 29 of the order of 7 December 2009.
Notwithstanding the considerable difficulties in interpreting the complex provisions of the Act and Rules it is necessary for the Court to decide in a general sense whether each of the parties has a reasonable excuse for contravening the relevant paragraphs of the order of 7 December 2009.
There are however distinct differences in the sanctions which can be imposed for failure to comply with orders depending upon whether Part VII, Division 13A or Part XIIIA Division 2 applies.
Discussion of reasonable excuse claimed by father for failure to pay $3,500 pursuant to paragraph 26 and $2,500 pursuant to paragraph 29 of the order of 7 December 2009.
The consent orders of 7 December 2009 did not provide in either paragraph 26 or paragraph 29 a specific time for the payments. In the Contravention Application filed by the mother on 5 March 2010 the date of the contraventions of paragraph 26 and paragraph 29 was referred to as “7/12/2009”.
The father admitted that he had not at any time paid either of the amounts to the mother, but he claimed reasonable excuse.
The father said his reasonable excuse was that until the 3 March 2010 there had been negotiations with the mother to bring about an overall property settlement. He asserted that if that overall property settlement had occurred, the sums due pursuant to the order of 7 December 2009 would not have been required to be paid. He said that by the time the negotiations fell through his circumstances were such that he could not afford to make the payments.
In cross-examination by the mother the father admitted that in March 2010 he sold some real estate. After the costs of sale and mortgage had been paid he received the sum of $50,000. His evidence under cross-examination was that he chose to pay debts allegedly owing to family members, friends and suppliers in China. His evidence clearly indicated that he did this in preference to making the payments pursuant to the order of 7 December 2009.
The husband also gave evidence which seemed to connect his failure to make payment pursuant to paragraphs 26 and 29 of the order of 7 December 2009 with what he claimed to the be the mother’s failure to comply with paragraph 25 of the order of 7 December 2009 (which referred to the bond relating to the rental of the W property which the mother was vacating in order to move closer to the father’s accommodation and the children’s school).
Although there is no specified time in the order of 7 December 2009 for the payments of $2,500 and $3,500, the context of the orders allow an interpretation which would require the father to make the payment to the mother within a reasonable time. The orders were made on 7 December 2009. The mother commenced the contravention proceedings on 5 March 2010. A reasonable time had therefore expired.
Even if the father relies upon his interpretation that the bond monies to be returned to him amounted to more than $2000 the failure of the mother to make this payment to him does not provide a reasonable excuse for the father’s failure to pay any amount to the mother.
If the father had already sold the real estate and recovered $50,000 he would have had sufficient funds to make the payment of $6,000 to the mother. If, by the time the wife filed the contravention application, he had not actually sold the real estate, nonetheless he had sufficient equity to make arrangements for the payment to the mother.
In any event, the burden of proof to establish the reasonable excuse was upon the father. He gave evidence merely stating that he was unable to pay the money. He did not provide any evidence of his inability, merely a simple statement. His evidence about the proceeds of sale of real estate did not support this statement. The father has therefore failed to establish his reasonable excuse on the balance of probabilities.
The father admitted that he had contravened the orders in paragraphs 26 and 29 of the order of 7 December 2009. He has not established a reasonable excuse for contravening the orders.
Discussion and findings of contravention filed by the father alleging the mother contravened paragraph 25 of the order of 7 December 2009 in relation to the rental bond.
The contravention application filed by the father on 27 May 2010 refers to the contravention occurring on 25 May 2010 at 9.00 am. The statement of the alleged contravention is “[the mother] has to return the bond as per the order’s (sic) made on 7th Dec 2010 (sic) in par 25”.
Paragraph 25 of the order of 7 December 2009 (being the order copy of which was annexed to the father’s contravention application) states in paragraph 25:
“25.The mother do assign all her rights and interest in the property in which she currently resides at [W] and for which she currently pays rent. And provided the rent is paid and the utilities are paid for up until the date of the mother vacating, then the father do indemnify the mother for all further rent and utilities on the said rental premises and the father do receive any bond lodged on the said premises.” (Emphasis added)
There is again no time limit provided for the father to receive the bond, nor is there any reference to a specific amount, nor how the father is to receive that payment.
The mother gave evidence that she received $6,000 from the father pursuant to the orders of 29 April 2009. The order referred to rent “not exceeding $350 per week”.
The mother’s evidence was that the money she received was used by her for relocation costs, for purchase of household goods and payment of the bond and the rent. The mother’s evidence was that the bond required on the rented premises was $1,560. The father maintained that it should have been six times $350, namely $2,100.
In any event, the mother admits that she has failed to pay any amount representing the bond to the father. The evidence implied that the mother had received the refund of the bond monies.
The mother admitted not paying the money (whatever the amount might be) to the father, but said she had a reasonable excuse. Her reasonable excuse was that the father had failed to pay the amounts due to her pursuant to paragraphs 26 and 29 of the order of 7 December 2009. She also said she had a reasonable excuse because she had offered to deduct the sum of $1,560 from the amount outstanding and due to her by the father by way of arrears of child support. Her evidence was that she had not been able to make arrangements for this deduction because the father had refused to agree to it.
The father’s evidence confirmed that he had not agreed to offset the sum of $1,560 owing by the mother (which the mother said represented the bond monies) against his child support indebtedness. Parts of his evidence implied that he might have agreed to offset the amount he maintained was due by the mother pursuant to that order (six weeks at $350 per week or $2,100) against the sum of $6,000 which he was due to pay the mother pursuant to paragraphs 26 and 29 of the order of 7 December 2009. The mother was maintaining the bond was a lower sum of only $1,560.
The evidence therefore establishes that by the time the father filed the contravention application on 27 May 2010 the mother had not made arrangements implied by the requirements of paragraph 25 of the Court order for the father to receive any bond lodged on the premises at W.
In paragraphs 20, 21 and 22 of the affidavit the mother filed in response to the contraventions filed on 27 May 2010 (document 108) the mother sets out her reasonable excuse. Part of that excuse is the father’s failure to pay the total sum of $6,000 pursuant to the order. Another part is set out in paragraph 22.
“As [the father] has still continued to refuse to pay the Court Ordered sum total of $6,000.00, as well as significant arrears of Child Support (standing at $6,679.92 as at 13 October 2010 as per “Annexure E” I have made the suggestion to [the father] on numerous occasions that I was prepared to deduct the Court Ordered $1,560.00 I owed him from the $6,679.92 he owes me in respect of Child Support. I did not receive a response from [the father] to this reasonable proposal on any of these occasions.”
Annexure E in fact does not establish, on the face of the document itself, the sum of $6,679.92 owing as at the 13 October 2010. The certificate under sub-section 116(2) of the Child Support (Registration and Collection) Act 1988 certifies that the sum of $4,845.55:
“…is due and payable by [the father] and remains unpaid at 13 October 2010 in respect of registered maintenance liabilities to the payee, [the mother] being:
·Child support debt of $4,845.55”
The mother has apparently arrived at the figure in her affidavit by adding to that figure a further $1,834.37 being “New Zealand balance”.
The husband did not agree with the amount of child support debt. He said that this was being challenged.
In any event, I am satisfied that the combination of the sum of $6,000 owing pursuant to the orders of 7 December 2009, the certificate in relation to child support arrears and the mother’s offer to offset the amount of $1,560 against the child support arrears provides the mother with a reasonable excuse for her failure to comply with paragraph 25 of the order of 7 December 2009.
I therefore dismiss the paragraph of the contravention of the father filed on 27 May 2010 so far as it relates to the alleged contravention of paragraph 25 of the order of 27 December 2009.
Sanctions to be imposed on the father
The father has contravened paragraph 29 of the orders of 7 December 2009 without reasonable excuse. That order specifically referred to the sum of $2,500 being “in order to assist with any relocation costs … etc”. This order can therefore be construed as an order which falls within the provisions of s68B(1) and (3) and therefore an “order under this Act affecting children” within the definition in section 4.
This contravention should be considered under Part VII Division 13A and in particular subdivision E or subdivision F.
The Court has not been asked to make a finding that the father has behaved in a way that showed a serious disregard of his obligations under the order (see section 70NFA(2)(b)).
The relevant options under s70NEB and s70NBA include ordering the father to attend a post-parenting separation programme, varying the parenting order, placing the father on a bond under s70NEC and ordering costs.
However there are difficulties in relation to a bond under s70NEB and s70NEC because of the Full Court decision Elspeth & Peter; Mark & Peter; and John & Peter (Penalty & Costs) (2008) 37 FamLR 696. The most appropriate sanction may therefore be an order varying the primary order to ensure that the father makes the payment ordered.
The father has contravened paragraph 26 of the order of 7 December 2009 without reasonable excuse. That order referred to paying the mother $3,500 “which is to be taken into account as part of the final property settlement anticipated ….”
This contravention is therefore of the type more properly considered under Part XIIIA. The sanctions available are therefore, a bond, a community service or work order, a fine or imprisonment.
I propose to deliver these reasons which make findings that the father has contravened the orders without reasonable excuse.
I will adjourn the matter to allow the unrepresented litigants to consider this judgment and prepare submissions about the sanctions to be imposed.
During the adjournment the father has the opportunity to pay $6,000 to the mother.
If the father paid $6,000 to the mother during the adjournment that would be a significant factor to be taken into account when considering the sanctions to be imposed.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 20 December 2010.
Associate:
Date: 20 December 2010
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