KHALILI & CHATHA

[2015] FamCA 621

FAMILY COURT OF AUSTRALIA

KHALILI & CHATHA [2015] FamCA 621

FAMILY LAW – CONTRAVENTION – Where interim parenting orders in place – Where the father alleges that the mother has contravened these orders on six occasions – Where the mother admitted some allegations and did not admit others – where five of the alleged contraventions found proven – where the mother has not proven that she had a reasonable excuse for contravening the parenting orders.

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

Khalili & Chatha [2014] FamCA 1047

APPLICANT: Mr Khalili

RESPONDENT: Ms Chatha

INDEPENDENT CHILDREN’S LAWYER: Ms Truong

FILE NUMBER: PAC 991 of 2010

DATE DELIVERED: 30 July 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 25 June 2015

REPRESENTATION

APPLICANT FATHER: In person

RESPONDENT MOTHER In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Truong

Orders

1. The five alleged contraventions of Order 1(6) of primary orders dated 9 October 2014, are proved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khalili & Chatha has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act No 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 991  of 2010

Mr Khalili

Applicant

And

Ms Chatha

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of four children have been engaged in parenting proceedings since 2012. On 9 October 2014 I made interim parenting orders in respect of the three youngest children, B and Y, twin girls who are nine and H, a little boy aged five. The Reasons for Judgment were delivered on 25 November 2014.[1]

   [1] Khalili & Chatha [2014] FamCA 1047

2. The father alleges that the mother has contravened these orders on six occasions since they were made. The mother admitted three of the contravention allegations but did not admit the other three allegations. Following the hearing of the father’s case, I found two of the remaining contraventions proved and gave reasons for those findings at the time. Essentially, I found that the mother failed to deliver the children to a contact centre for the purpose of the father spending time with the children as required under the orders. The mother then presented evidence for the purpose of proving that she had a reasonable excuse in respect of the five proven contraventions.

3. Due to time constraints on the hearing date I heard submissions of the parties concerning the mother’s reasonable excuse, but indicated that my judgment in respect of this issue would be reserved. The issue for me to determine is whether the mother has proved that she had a reasonable excuse for contravening the orders on five occasions.

Background

1. The detailed background facts are set out in my Reasons for Judgment dated 25 November 2014 and that judgment is to be read with this judgment.

2. For the purposes of this judgment it suffices to set out the following brief background. The mother and father are the parents of four children. The eldest child who is 14 is not the subject of any parenting orders providing for the father to spend time with him. The parents were married in 1994 and divorced in May 2010 but no parenting orders were made at that time.

3. In April 2012, the mother commenced proceedings in the Federal Circuit Court of Australia and final parenting orders were made in May 2012 on an undefended basis as the father was not present. The father says he was unaware of the proceedings. These orders provided for the mother to have sole parental responsibility for the four children, that they live with her and spend time with the father as arranged between the parents.

4. The father commenced proceedings in October 2012 and in the same month the May 2012 final orders were suspended and in lieu orders were made providing for the parents to have equal shared parental responsibility for the children, for the children to live with their mother and for their names to be placed on the Airport Watch List.

5. In February 2014, following an interim hearing, the matter was transferred to the Family Court of Australia but the parenting arrangements remained the same.

6. On 9 October 2014 the father’s application for interim orders with respect to spending time with the children was heard and orders were made. Under these orders the father was to spend time with B and Y, the twin girls who were then aged eight, and H who was then aged four. This time was to commence from 18 October with four hours each alternate Saturday for a period of eight weeks and thereafter for four hours each Saturday. Orders were made with respect to the parents enrolling in a contact centre which was to be utilised for the purposes of changeover only for the children’s time with their father. An order was made for changeover to occur at a particular contact service. Order 1(6) provided

   Unless specified in these orders or agreed by the parties in writing, for the purpose of the children’s time with the father pursuant to these orders, the parties shall be responsible for delivering the children to and collecting the children from changeover location; and shall do all acts and things necessary to ensure that no member of the parties’ extended families are present at or in the vicinity of changeover location.

The contraventions

1. On 25 June 2015 in the contravention proceedings I made the following findings that five of the six alleged contraventions were proved.

15 November 2014

1. The mother admitted that she did not deliver the children to the contact centre as required by order 1(6) of the primary orders. On this occasion, the father was due to collect the children at the contact centre for the purposes of spending time with them at 10:15am. He received a telephone call at 10:09am from a staff member at the contact centre informing him that the mother had left a message to the effect that she would not be delivering the children to the centre as they were unwell.

13 December 2014

1. The mother did not admit this contravention. I accepted the father’s evidence that on the previous day he was contacted by a staff member from the contact centre who said that the girls were expressing the view that they might not want to spend time with him the following day. I found that while the mother delivered all three children to the contact centre they only remained at the centre for a short time and only Y and H spent that time with the father. The mother contravened the order as she took the children from the contact centre after 35 minutes when the father’s time was ordered to be for a period of four hours.

24 January 2015

1. The mother admitted this contravention in respect of H but did not admit it in respect of B and Y. I found that the mother delivered all three children to the contact centre but refused to allow H to spend time with his father away from the centre. The primary orders do not provide for supervision and the parties are only required to utilise the contact centre for the purposes of changeover. The mother intentionally failed to simply deliver the children to the centre as required under the order and in effect imposed and additional condition of her own volition. Although the parties’ daughters did not pass into the care of the father on this occasion, the mother fulfilled her obligations under the orders in relation to them. Accordingly, I only found the contravention proved with respect to H.

7 February 2015

1. The mother admitted that she contravened order 1(6) of the primary orders by failing to deliver the children to the contact centre as required.

21 February 2015

1. The mother admitted that she contravened order 1(6) of the primary orders by failing to deliver the children to the contact centre as required.

The mother’s reasonable excuse

15 November 2014

1. The mother says that her reasonable excuse for failing to deliver each of the children to the contact centre on 15 November 2014 was because H was unwell. The mother’s evidence was that H was sick on this day, and that she called the centre at 4:00am and then again at 10:05am. She says that she took H to a doctor and obtained a medical certificate.

2. Under cross-examination, when asked why she did not contact the father to advise him about H’s illness the mother said that she had not rung the father in three years and it had been recommended that communications be by email if they were urgent.

3. The mother also relied upon the records of the contact centre. Those records indicate that the mother left a message at 1:15am on the contact centre’s phone and advised that one of the children was sick and she would not be bringing “them” that day. This message was noticed at 10:10am by staff who immediately contacted the father. The mother was told by contact centre staff that she was required to provide a medical certificate in relation to H’s illness. The records also indicate that the mother was given an after-hours phone number to call should she ever need to cancel again. A medical certificate dated 15 November 2014 provided by the mother, which forms part of the contact centre’s records, indicates that “H is unable to attend [illegible]” on that date. There is no evidence concerning a reasonable excuse in respect of the mother’s failure to deliver her daughters to the centre on this date.

13 December 2014

1. The mother says that her reasonable excuse for removing the children from the contact centre prior to the expiry of the father’s time with the children was that H was too sick to spend time with his father and that she needed to take him to the doctor.

2. The mother’s evidence is that she brought all three children to the contact centre on this date and she very reluctantly conceded that only Y and H spent time with the father and that it was for a significantly shorter period than the four hours provided for under the orders. She maintained that H was sick with a virus and agreed that she told staff that the father could not take H from the centre and that she had to leave to take H to a doctor’s appointment, which was the earliest she could obtain on that date.

3. The father’s evidence was that he did not observe H to be unwell, but conceded that he was told by a staff member that she had been advised that H was sick

4. Contact centre records for 13 December indicate that the children arrived for changeover and that the mother was carrying H and said that he was sick and had just vomited. It is noted that H did not present with his normal energy and appeared unwell but was keen to go and see the father. Both girls told staff members that they did not want to see the father and wanted to stay with the mother. The records indicate that the mother told the girls it was okay to them to go and that she would “wait for them” and “would not leave the premises”. Y decided to see her father, but B chose not to. H is described as seeming excited to see his father and ran to him and cuddled him. The father then gave Y and H some gifts and suggested that they all play a game together. After playing the game Y stated that they would go as they had a doctor’s appointment. The records note that the mother and children left the premises after the children spent about half an hour with the father and appeared happy. H is noted to have asked the mother to carry him as he was still feeling sick. A medical certificate to the effect that H was suffering from viral gastroenteritis on 11 December dated 13 December forms part of the contact centre records. This medical certificate is in a different form to the one issued on 15 November 2014 as the words “was unable to work/will be unable to work/is required to care for a relative” are all crossed out.

24 January 2015

1. The mother’s reasonable excuse for refusing to allow H to spend time with his father away from the contact centre on this day is unclear.

2. Although the mother was not required to file an affidavit in respect of her reasonable excuse she did so and relied upon it as her evidence in chief. That affidavit contains no evidence in relation to the events of 24 January and her oral evidence and cross-examination focused only on the reason why B and Y did not spend time with the father.

3. The contact centre records for this day relied upon by the mother note that while the girls refused to spend time with their father H was eager to go. In relation to the mother’s requirement that H remain at the centre the following is written

   LWP [live with parent] said that son is to stay at [contact centre] for visit… STP [spend time parent] said he used to take the children as per court orders for C/O but now wonders why he is only allowed to stay on site as the court orders say he can go for usual unsupervised visit.

   The following is also written

   Outcome: [staff member] apologised to [father] and said that it appeared that [contact centre] was not following court orders by changing criteria around him to go off-site with child (as per normal changeover contract) due to [mother] expressing her wishes for child to remain at centre.

7 February 2015

1. The mother says her reasonable excuse for failing to deliver the children to the contact centre as required under the orders on this occasion was because she had to attend a funeral interstate. Her affidavit contains no evidence concerning this occasion, but there was some oral evidence and cross-examination concerning this issue. When asked by the father why the mother thought she was not required to take the children to the contact centre the mother said she was unable to ask a family member as this was prohibited under the orders and she had no friends available on a Saturday to do this for her.

2. The contact centre records relied upon by the mother indicate that she telephoned the centre at 10:15am on the previous day to advise that she was unable to bring the children as she would be attending a funeral. The father was advised by centre staff that the visit was cancelled.

21 February 2015

1. The mother’s reasonable excuse for failing to deliver the children to the contact centre in accordance with the orders on this date is unclear. In her affidavit, the mother said she had a telephone conversation with a staff member from the contact centre on 19 February and was advised that there was no room available for H to stay on site. The mother said that she advised the staff member she would deliver the children on the upcoming Saturday, but if the girls refused to go [with the father], then “H is not allowed on his own”. The mother said that the staff member told her that as it was unlikely the girls would agree to go with the father then it was best to cancel the visit.

2. The father said that on 19 February he received a telephone call from the same staff member advising him that the mother would not be bringing the children to the centre for changeover on 22 February. I accepted that this was a reference to 21 February.

3. The contact centre records tendered by the mother indicated that on 11 February 2015 the mother sent an email to the contact centre concerning the children’s time with their father. In that email the mother says the following

   … [B and Y] do not wish to go to the contact centre and that has not changed… I can not keep going to [Suburb N] and then having to waste hours waiting for [H] whilst NOT entertaining the girls since they refuse to go despite all efforts by me and your staff.

4. The records indicate that in the course of a telephone conversation with the mother on 18 February she told the contact centre staff member that “[she] will not be following the next stage of the C/O [contact orders]”. When advised that the service did not have any rooms available on Saturday and that the mother should be encouraged to have H spend time with his father off-site the mother said “she will not be bringing the children”. The records indicate that the father was then advised that the mother indicated she would not be bringing the children.

The Law

1. Contraventions are dealt with under Part VII, Division 13A of the Family Law Act 1975 (Cth) (‘the Act’).

2. Section 70NAE defines the meaning of “reasonable excuse for contravening an order. Section 70NAE(2) states:

   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. Subsection (5) deals with the respondent having a reasonable excuse for contravening a parenting order which deals with whom a child is to spend time with which has 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).

4. Section 70NAF deals with the standard of proof for contravention of parenting orders under this division. Subsection (1) provides that, subject to subsection (3) of this section, the requisite standard of proof to be applied is that of the balance of probabilities. The same standard is also to be applied to determining whether or not a respondent has a reasonable excuse for the contravention, subsection (2). On the assumption that the orders under subsection (3) are not sought, the requisite standard of proof is the balance of probabilities. If subsequently the orders specified in subsection (3) are sought, the standard of proof of beyond reasonable doubt will need to be revisited.

5. I am satisfied on the balance of probabilities that on each of the five occasions the mother has not proven that she had a reasonable excuse for contravening the parenting orders. On 15 November 2014 there is evidence that a doctor was of the opinion that H was “unable to attend [illegible]” which can be assumed to be a reference to time with his father. Accordingly, with respect to H I accept that the mother believed on reasonable grounds that not allowing the child and the father for this period to spend time together was necessary to protect H’s health. However, there is no evidence in relation to her belief concerning her failure to deliver the two girls to their father on that date.

6. So far as 13 December 2014 is concerned, once again the mother relied upon H’s state of health as a reasonable excuse. The medical certificate issued on that date referred to 11 December 2014 only and the doctor only expressed an opinion that H was suffering from viral gastroenteritis. The doctor did not state that H was unable to attend the time with the father. The contact centre records did note that H appeared unwell but also noted that he was keen to see the father and the short time he spent with the father was also seen to be positive. There is no indication that the father would have been unable to take care of H even if he was unwell or the other children on that date. I am not satisfied that the mother believed on reasonable grounds that not allowing H and the father to spend time together was necessary to protect H’s health.

7. The mother has not provided any evidence as to why she did not simply deliver all three children to the contact centre on that date and then leave the contact centre herself and return at the end of the four hour period.

8. In relation to the contravention on 24 January 2015, as indicated, the reasonable excuse proffered by the mother is unclear. Although the mother contravened the order in the sense that she in effect required the centre to impose an additional condition, the contravention did not result in H not spending time with his father. However, that time was not “as provided for in the order” as the order did not require that the time occur at the centre.

1. So far as the contravention on 7 February 2015 is concerned I am not satisfied that the respondent mother’s attendance at a funeral is a reasonable excuse. There is no evidence given as to why the mother could not have made alternative arrangements for the children to spend time with their father. The primary orders provide for the parties to agree about changeover (order 1(4)) and for them to communicate by telephone for matters of an urgent nature or otherwise by email (order 1(7)). Alternatively if the mother had not made such alternate arrangements there is no evidence put forward by her as to why she prioritised her attendance at a funeral over the children spending time with their father. There is no evidence that she believed on reasonable grounds that not allowing the children and their father to spend time together was necessary to protect the health or safety of a person.

2. In relation to the contravention on 21 February 2015 I accept the father’s evidence that the mother cancelled the father’s time with the children in the course of the telephone conversation on 19 February 2015 when the contact centre advised the mother that there was no room available for H to stay onsite and that H should be encouraged to spend time with the father offsite. It is to be remembered that the orders only provided for the contact centre to be used for the purposes of changeover. The contact centre records indicate that when the mother was told the time could not occur at the centre, she then said “[she] will not be bringing the children”. This is also consistent with the email sent by the mother to the contact centre on 11 February 2015 advising that she could not keep going to the contact centre and have to “waste hours waiting for H”. In my view, the mother made a decision as early as 11 February 2015 that she did not intend taking the children to the contact centre. The mother has not put forth any evidence that she believed on reasonable grounds that not allowing the children to spend time with their father was necessary to protect the health or safety of a person.

3. For these reasons I am satisfied that the contravention on five occasions are proved and that there was a reasonable excuse for those contraventions.

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 30 July 2015.

Legal Associate: 

Date:  28 July 2015