Keles and Keles

[2018] FamCA 571

FAMILY COURT OF AUSTRALIA

KELES & KELES [2018] FamCA 571

FAMILY LAW – ORDERS – Contravention Application – Where children retained overnight – Whether reasonable excuse made out – “reasonable” excuse an objective standard – Whether belief is held on objectively reasonable grounds – Whether compensatory time should be ordered – Whether costs order should be made.

Family Law Act 1975 (Cth) ss 70NAE, 70NDA, 70NDC, 117(2A)

Bowen & Sawer [2017] FamCA 234

APPLICANT: Mr Keles

RESPONDENT: Ms Keles

FILE NUMBER: PAC 2820 of 2014

DATE DELIVERED: 20 April 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 13 April 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Executive Legal Pty Ltd

Orders

1. The application for contravention filed by Mr Keles on 20 December 2017 is dismissed.

2. The application for contravention filed by Mr Keles on 5 July 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keles & Keles has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 2820 of 2014

Mr Keles

Applicant

And

Ms Keles

Respondent

REASONS FOR JUDGMENT

1. The Father brought four contraventions of parenting orders.  Parenting orders were made on 25 November 2016 and 21 December 2016 together comprising the suite of final orders made in the matter by Justice McClelland.  Two of those contraventions have already been dismissed.  The contraventions that were filed were filed across two contravention applications filed on 5 July 2017 and 20 December 2017.  The former application was subsumed into the latter, and hence, only the latter needs to be dealt with.  The two contraventions that remained did so on the basis that the contraventions had been admitted but a reasonable excuse had been asserted by the Mother.

2. The first of those counts alleged a breach of order 1 of the orders made on 21 December 2017, being a breach alleged to have occurred on 23 June 2017 in that the Mother failed to provide the two children to the Father in accordance with the operation of the school term time week about orders.  The third of the counts, which also remained, was an alleged breach of order 5 of the orders made on 25 November 2016 and again on 23 June 2017 that the Mother did not allow the Father to speak to the children by telephone.

3. The circumstances were that the children were due to go to the Father on 23 June 2017.  They were to travel with their Mother to the United Kingdom on 24 June 2017, the following day.  The Mother withheld them and did not allow them to speak to their Father on 23 June 2017.  The Mother says that she did this deliberately as she was afraid the Father would interfere with the trip to the United Kingdom.  The Father reacted to the withholding as though it constituted a child abduction.  He said to the Court that notwithstanding that the Court had made orders authorising the international travel and the Mother had given an undertaking not to leave an airport in the Middle East, he was concerned the Mother would abduct the children in the Middle East.  He contacted the police.  He contacted DoCS.

4. He had someone impersonate the Mother in order to cancel her flights.  These constituted a gross overreaction given the circumstances in which there were specific orders authorising the international travel.  The Mother had the flights reinstated.  The Father also said that he was concerned for where the Mother might have the children on the night that he was to have them.  Further background is that the Father had opposed the Mother’s travel with the children, and she had obtained specific orders.  Neither parent, it seems, had previously contravened the orders.  It was apparent that the parents currently have a very poor relationship.

5. As noted, the Mother said that she withheld the children and refused the communication because she was concerned that the Father would interfere.  When she did so, it turned out that E was ill on that day with a sore throat.  The Mother told the Father that E was not going because of the sore throat.  That throat was treated by throat lozenges, orange juice and the like.  E was taken out for lunch.  The illness could not be a basis to withhold.  The basis stands or falls on the question of the perception that the Mother had that the Father would interfere with the travel.

6. Her basis for forming such a conclusion is that she overheard on the Tuesday, Wednesday or Thursday prior to the travel the girls having a discussion.  One of the girls, she said, had said, “Are you going away with mummy?”  The other one responded, “Not sure.”  And a further response was given, “Dad won’t let us – allow us to go there.”  She said that she overheard further conversation:  “If we go with dad on Friday, he won’t allow us to go away with mummy.”  The Mother said as a result she formed the view that something was being planned and that the Father would do something dramatic.

7. The question of reasonable excuse boils down to the question of the potential for the Father to interfere with the international travel. The onus to establish that it constituted a reasonable excuse rests upon the Mother. The meaning of reasonable excuse for contravening, as set out at s 70NAE of the Family Law Act1975, is at large, although there are specific statutory examples which are directed to the protection of the health and safety of the children.  Those examples indicate the seriousness of what is required to form a reasonable excuse.  Some aspects of reasonable excuse were dealt with by Justice Cronin in Bowen & Sawer.[1]

   [1]Bowen & Sawer [2017] FamCA 234 at [26] and [27].

8. His Honour there said:

   In Stevenson & Hughes [omitting references], … Fogarty J said:

   There is also implicit, in every order for access, an obligation imposed upon the custodian to take reasonable steps to do what they can to ensure that the stipulated contact orders occur.  That same provision also applies to the contact parent, who has to take reasonable steps to ensure that the child is returned at the conclusion of the relevant period.

   The decision in Stevenson & Hughes obviously preceded the relevant amendments to the Act in 2006, but the same concept is now enshrined in section 65DA(2) and section 62B. 

   In the Full Court’s decision in Gaunt and Gaunt [omitting references], … their Honours said the following:

   The essential question is this:  can a party who does not agree with a Court’s decision about access, defy the order and then plead that, in preventing access, his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child.

9. Justice Cronin went on to say:

   The same point must be made about someone who takes the view that they have no other choice other than to overhold.  The question must be looked at on the basis of what is reasonable.  A party’s subjective view of the rights and the wrongs of the decision cannot be relied upon as a reasonable excuse.

10. The approach taken by Justice Cronin is well supported by three aspects of the structure of s 70NAE. Firstly, the use of the word “reasonable” imports an objective standard. Secondly, the references in 4(a), 5(a), 6(a) and 7(a) of s 70NAE are that the relevant belief is to be held on reasonable grounds. Thirdly, in s 70NAE(2), the requirement is not only that the obligations not be understood but in the context of reasonable excuse the Court is satisfied that it is appropriate to excuse.

11. The significance here is as follows.  Firstly, it is necessary to find that the belief is held on objectively reasonable grounds.  Secondly, it is necessary to find then that the belief constituted an objectively reasonable basis to contravene.  As to the first of these matters, the background is that the Father resisted the orders to travel necessitating an application to the Court.  The Mother overheard conversations.  She formed a conclusion that there was a risk of interference with the overseas trip.

12. She pointed to the interference by the Father post her breach as demonstrable of the reasonableness of her concern.  There was a dearth of material as to why she so readily came to such a conclusion.  While absent the Father’s interference, that is, by causing someone to impersonate the Mother to cancel the international flights, it may have been difficult to demonstrate that the fear expressed by the Mother was reasonable based on the facts advanced by her, the conduct of the Father means that it should be found that her fear was quite reasonably based.

13. The second issue is whether the risk constitutes a reasonable basis to contravene.  It may be considered to be rare that a potential contravention by another party will form a reasonable excuse for contravening.  It is a very difficult equation to make good, that is, a breach for a breach is reasonable, but here the specific orders were in place for travel.  The disruption caused to the Mother and the children by a last minute frustration of those orders would be great and would thwart international travel, thwarting the children visiting their faraway relatives.

14. Combined with what, it turns out, was a reasonable assessment on the part of the Mother of the risk, it means that although this matter not directed to the health or the safety and protection of the children, in the particular circumstances of this case, that grave disruption to those international travel plans were a reasonable excuse for the contravention of the orders.  So hence, I find the contraventions made out, but I also find that there was a reasonable excuse for each of them.

15. Section 70NDA says I must consider ordering compensatory time.  One night of time was missed.  I must consider whether to order compensatory time for that one night.  Given the antipathy between the parties, and given their current strict compliance with the orders, it is not in the children’s interests to have an ad hoc variation to make up time, and I make no such order.  Section 70NDC then means that I may make an order for costs, and the Mother sought costs under such circumstances, however, considering the matters in s 117(2A) as far as they were identified to me in this case, there is little, if any, identification of them as justifying a departure from the usual rule that each party bears their own costs, and I make no order as to costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 20 April 2018.

Associate: 

Date:  24 July 2018