Kolesov and Jenkins

[2014] FamCA 151

FAMILY COURT OF AUSTRALIA

KOLESOV & JENKINS [2014] FamCA 151

FAMILY LAW – CHILDREN – Contravention of Orders – Whether the mother has proved a prima facie case in respect of each alleged contravention – Whether the father has made out a reasonable excuse in respect of the contraventions proved – Proceedings necessitated by father’s failure to comply with Court Orders – Mother’s costs of contravention proceedings to be paid by father as agreed or assessed

Family Law Act 1975 (Cth) ss 4, 68B, 70NAE, 70NAF, 70NEA, 70NEB

APPLICANT: Ms Kolesov

RESPONDENT: Mr Jenkins

FILE NUMBER: SYC 2675 of 2007

DATE DELIVERED: 17 March 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 4 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Messner

SOLICITOR FOR THE APPLICANT: Legal Aid NSW

THE RESPONDENT: In person

Orders

1. That, upon the Court finding that the Respondent father has without reasonable excuse contravened various Orders of the Court, pursuant to section 70NEB(1)(f) of the Family Law Act 1975 (Cth), the Respondent father pay the Applicant mother’s costs of and incidental to the Contravention Application brought by her with such costs to be in the sum agreed by the parties within twenty-one (21) days from this date or as assessed.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 2675 of 2007

Ms Kolesov

Applicant

And

Mr Jenkins

Respondent

REASONS FOR JUDGMENT

The Proceedings

1. The present application before the Court is yet another application in the long-running parenting saga between the mother and father that has continued since the parties’ separation in about June 2004.

2. The Applicant mother’s application filed on 5 September 2013 sought that the Respondent father be dealt with by the Court in relation to various alleged contraventions by him of various parenting Orders made in these proceedings.

3. The mother’s application was amended by reason of an Amended Application – Contravention filed on 25 February 2014 and is supported by her affidavit sworn on 24 February 2014 and filed on 25 February 2014.

4. Initially, the mother’s Amended Application alleged over 140 instances of contravention by the Respondent father. However, following preliminary exchanges, the number of alleged contributions were significantly reduced in that many were not sought to be proceeded with and in respect of others, it was conceded, there was no prima facie evidence and would not be proceeded with.

Background

1. The parties commenced cohabitation in about 1995. The parties married in October 1997 in Sydney and separated on a final basis in about June 2004.

2. There are three children of the marriage, L now aged 14, Z now aged 12 and B now aged nine.

3. Relevantly parenting Orders have, in summary, been made as follows.

22 May 2007

a)That the children live with the mother; and

b)That in the event the father is residing in the Commonwealth of Australia that both parties have joint responsibility for making long-term decisions, in consultation with each other, in respect of the care, welfare and development of the children.

18 March 2008

a)That whilst the father is in the Commonwealth of Australia the father shall spend time with the children as follows:

i)Each week and from 3.00 pm Tuesday until 9.00 am the next day and at the commencement of such contact the father shall collect the children from school or the mother’s home as the case may be and at the expiration of such contact the father shall return the children to school in the event that is a school day or the mother’s home as the case may be and in the event that the husband fails to return the children to school (on a school day) then such contact periods shall be suspended pending further order of this Court or another Court exercising family law jurisdiction;

ii)From 3.00 pm Friday until 10.00 am Saturday inclusive on the first and third Friday immediately following the date of these Orders and thereafter fortnightly;

iii)From 3.00 pm Friday until 4.00 pm on Sunday inclusive on the second and fourth Friday immediately following the date of these Orders and thereafter fortnightly;

iv)At the commencement of such contact periods the father shall collect the children from school or the mother’s home as the case may be and at the expiration of such contact periods the father shall return the children to the mother’s home;

v)Half of each school holiday as agreed or in default the first half in each odd numbered year and the second half in each even-numbered year; and

vi)The mother shall release the children’s passports to the father 24 hours prior to the time of departure and the father shall return the children’s passports to the mother 24 hours after the time of return to Australia.

27 April 2010

a)In the event that the father travels to the United Kingdom for a period exceeding one month in any 12 month period after the date of these Orders the mother will make the children available to spend additional time with the father upon his return to Sydney on such days and at such times as the parties may agree.

19 December 2012

a)The father and mother each undertake (by provision of urine screen in accordance with the Australian/NZ standard 4308:2001) urinalysis for drug screening within 48 hours of receiving a request to do so from the Independent Children’s Lawyer with such request to be made by email communication to each of the parties and provide copies of the results of the tests to the other party within 48 hours of receipt of same provided always that there shall be no more than two requests each calendar month to each party.

14 October 2013

a)That both parties shall ensure that the children each attend school punctually and for the full school day unless a child’s non-attendance at school is necessary due to a medical appointment for the child or the child’s ill health on the day; and

b)That in the event that one of the children is absent from school due to ill health for in excess of one day, the parent in whose care that child was during that absence shall obtain a medical certificate from a medical practitioner no later than two days after the end of that absence and shall provide a copy of the medical certificate to the Independent Children’s Lawyer and to the solicitors for the other parent (or to the other parent if they are self-represented) no later than four days after the end of that absence.

The Contravention Allegations

1. For the sake of clarity, each of the contraventions will be dealt with separately using the numbering provided for in the Amended Application – Contravention filed on 25 November 2014.

2. Once the Applicant mother has made out a prima facie case then section 70NAF provides that the onus is on the Respondent father to prove such a reasonable excuse on the balance of probabilities.

Contravention 14/15 - the mother alleges that the father without reasonable excuse failed to return the children L and Z to her by 4.00 pm on 5 May 2013

1. The mother relies upon the terms of the Orders set out above and the relevant Orders in respect of this alleged contravention is the Orders of 18 March 2008.

2. In her oral evidence, the mother conceded that since about February 2013 the child Z had been living with the father and the child L was moving back and forth between the home of her father and the home of her mother. The mother had previously deposed that on 23 February 2013 she had told the child L to leave her home and had asked the father thereafter to collect the child. The mother acknowledged that about a week later the child Z moved to live with the father. It was put to the mother that the only period that the child L had returned to live with the mother was for the period from 21 March 2013 to 16 April 2013 whilst the father was in the United Kingdom. The mother refuted this suggestion.

3. There is a prima facie breach of the Orders.

4. The father in his evidence does not dispute that the Order was not complied with but says that the children L and Z have substantially been living with him since February 2013. At that time the children were aged nearly 14 and 11 respectively. The parties have condoned between themselves a situation where the Orders were, in effect, ignored.

5. The father has established a reasonable excuse. The alleged contravention is dismissed.

Contravention 16/17 - the mother alleges that the father without reasonable excuse failed to return the child B to her until 7.30 pm on 5 May 2013

1. The relevant Orders are those of the 18 March 2008.

2. The mother’s evidence is that the father collected the child B at about 1.30 pm that day. The mother asked him when the child would be returned and replied “I don’t know if they are coming back. Maybe or maybe not.” The mother was at home at 4.00 pm, at which time the child was to be returned under the Orders, and the child was returned later at 7.30 pm that night.

3. The father alleges a conversation with the mother whilst the child B was in his care that afternoon in which he said to the mother “the children are having fun, I will bring them back a bit later”, to which the mother agreed. The mother denies the conversation, asserting that the child B always wanted to come home early.

4. There is a prima facie breach of the Orders.

5. The father concedes the breach of Orders but asserts the mother’s consent. He has an obligation to satisfy the Court as to his reasonable excuse for breaching the Orders on the balance of probabilities.

6. In reality, it becomes his word against the mother’s. The Court is not satisfied that he has established a reasonable excuse to the requisite standard and the contravention is found proved.

Contravention 18/19 - the mother alleges that on 19 May 2013 the father without reasonable excuse failed to return the children L, Z and B to her by 4.00 pm that day

1. The relevant Orders are those of the 18 March 2008, and the circumstances of the older children subsequent to February 2013 are referred to above.

2. The mother denied that there was any agreement for the children to stay overnight with the father. However, the mother conceded that the child Z since February 2013 had not wished to reside with her and that the child L had moved back and forth between the two households until June 2013 when L no longer returned to the mother’s household.

3. There is a prima facie breach of the Orders.

4. The father, in effect, concedes the breach of the Orders but asserts that the circumstances in relation to the children afforded him a reasonable excuse for non-compliance, particularly having regard to the ages of the older children.

5. The mother asserts that in relation to the child B that she was not returned home at all but was taken to school the next day by the father.

6. The alleged contravention relates to all three children and the Court is satisfied that the father has established a reasonable excuse in relation to the two older children. In that circumstance, the alleged contravention is dismissed.

Contravention 22/23 - the mother alleges that on 16 June 2013 the father without reasonable excuse refused to return the children L and Z to her

1. The relevant Orders are those of 18 March 2008.

2. It is the mother’s evidence that since February 2013 the child Z has chosen not returned to return to her care and that on or about 16 June 2013 the child L has also refused to return to her care, she then being 14 years of age, save for the odd day here and there.

3. There is a prima facie breach of the Orders.

4. The circumstances have been referred to above, and whilst the contravention is proved, the Court is satisfied that the father has established a reasonable excuse for the contravention. This alleged contravention is dismissed.

Contravention 26/27 - the mother alleges that the father without reasonable excuse between 7 July 2013 and 14 July 2013 failed to return the children Z and L to her for half of the school holidays, the second half failing agreement

1. The relevant Orders are those of 18 March 2008.

2. The mother’s evidence is that the children were not made available to her in accordance with the Orders. The father put to the mother that the children did not wish to go to her at this time, a proposition that the mother denied.

3. There is a prima facie breach of the Orders.

4. The father asserts that the children spent some portion of this time with the mother and that his recollection is that he delivered the older two children to the mother’s home to facilitate this. He was unable to give evidence as to when the children spent time with the mother.

5. The Court is satisfied that the evidence establishes a breach of the Orders by the father. He has a positive obligation to make efforts to comply with his obligations under the parenting Orders. His evidence, overall, is vague and uncertain and fails to establish a reasonable excuse.

6. The contravention is found proved.

Contravention 46/47 - the mother alleges that the father between 28 September 2013 and 8 October 2013 without reasonable excuse failed to return the children L and Z to her for the second half of the school holiday period

1. The relevant Orders are those of 18 March 2008.

2. The mother’s evidence is that the school holiday period was from 21 September 2013 to 8 October 2013 and that the midpoint of that school holiday period was 28 September 2013. She says that the father did not return the children to her care to spend the second half of the school holiday period with her.

3. The father put to the mother in cross examination that the child Z spent time with her and that he and L were made available two evenings per week and that otherwise they phoned the mother regularly. The mother asserts that she could not recall whether she saw the children at all during this school holiday period but was adamant that they had not spent a full week with her.

4. There is a prima facie breach of the Orders.

5. The father’s contention as to the children’s time with the mother is supported by a letter from his solicitors to the mother’s solicitors dated 21 November 2013. The father has a positive obligation to make efforts to comply with his obligations under the parenting Orders.

6. His evidence is insufficient to establish a reasonable excuse. The contravention is proved.

Contravention 66/67 - the mother alleges that between 9 January 2014 and 28 January 2014 the father without reasonable excuse failed to return the children L and Z to her for the second half of the school holiday period

1. The relevant Orders are those of 18 March 2008.

2. The mother says that on Thursday 16 January 2013 the children arrived at her home at about 5.30 pm. The children were then in the mother’s care until the end of the school holidays. The father put to the mother that the children were made available to the mother in circumstances where he was overseas during the last two weeks of the school holidays.

3. The prima facie breach of the Order is established on the mother’s evidence.

4. Again, it is noted that the father has a positive obligation to make efforts to comply with his obligations under the parenting Orders.

5. His evidence is insufficient to establish a reasonable excuse. The contravention is proved.

Contravention 68/69 - the mother alleges that between November 2013 and January 2014 the father without reasonable excuse failed to consult with her on the issue of joint responsibility with respect to the long term decision of determining the high school Z would be attending in 2014

1. The relevant Orders are those of 22 May 2007.

2. The mother says that on 1 November 2013 she forwarded an email to the father about enrolling the child Z in high school in 2014. She informed the father in that email that she had taken the liberty of enrolling the child into C School as this was his catchment school and enrolments needed to be made. She informed the father that she had spoken to the child, who did not know where he wanted to attend high school. She reminded the father that it was imperative that the child’s high school be organised promptly if he was not to attend C School. She invited the father to inform her as to his thoughts on the child’s high school as she would like to be involved in the process and it cannot be left to the last minute. She informed the father of the orientation day at C School to be held in early December 2013, followed by an information session later that evening in the school library.

3. On 28 January 2014 the child Z remained in the mother’s care and she endeavoured to contact the father to confirm that the child was attending D School. The father was unable to be contacted. On 30 January 2014 the mother became aware that the child had in fact been enrolled at E School.

4. The mother agreed that because of an existing Apprehended Violence Order (“AVO”) the father was restrained from contacting her directly, except through solicitors. The mother agreed that she had been told by the child that he had been enrolled at D School but without consultation with her.

5. The mother’s evidence establishes a prima facie breach of the Orders.

6. The father asserts that his letter to the mother’s solicitor dated 21 November 2013 invited the mother to have input into the school in question. The letter, inter alia, says “[Z] wishes to go to [D] School in [Suburb F]. My client contends that it has better results than [C] School. If your client wishes to contend for another school she should do so in a written letter advising her preference and why.”

7. The father asserts that as he was unrepresented thereafter there were difficulties in discussing the issue with the mother. However, without any consultation with the mother he then enrolled the child at E School.

8. The father has not established a reasonable excuse for his breach of the Order. The contravention is proved.

Contravention 72/73 - the mother alleges that on Wednesday 13 February 2013 the father without reasonable excuse failed to take the children and Z and B to school by 9.00 am

1. The relevant Orders are those of 18 March 2008 that require the father to take the children to school following midweek overnight time.

2. The mother relies upon the school attendance records that reveal that on 13 February 2013 the child Z was absent from school from 9.00 am until 10.59 am. Attendance records in relation to the child B reveal that on 13 February 2013 the child was absent from school from 9.00 am until 10.59 am. It is to be reasonably inferred from the terms of the Order that the father was required to return the children to school promptly at the commencement of the school day.

3. There is a prima facie breach of the Orders.

4. The father says that on the day he had an early appointment with his solicitor in relation to these proceedings and the children Z and B were waiting at the solicitor’s office until he completed his appointment. As a consequence he was late in getting the children to school.

5. The Court is not satisfied that the father has a reasonable excuse for contravention of the Orders in that he should have made appropriate arrangements to confer with his solicitor such as would facilitate the compliance with him of his obligations under the Court Orders.

6. The alleged contravention is proved.

Contravention 74/75 - the mother alleges that on 20 February 2013 the father without reasonable excuse failed to take the children Z and B to school at 9.00 am

1. The relevant Orders are those of 18 March 2008.

2. The mother relies upon the school attendance records of the children. The child Z was absent from school from 9.00 am until 1.00 pm and the child B was similarly absent from school from 9.00 am until 1.00 pm. The school records note in relation to both children “leave”.

1. There is a prima facie breach of the Orders.

2. The father’s evidence is that both children were unwell during the course of the morning. On taking the children to school he provided to the school a note in relation to the reason for their absence.

3. The father has established a reasonable excuse for his non-compliance with the Orders and the alleged contravention is dismissed.

Contravention 76/77 - the mother alleges that on Wednesday 20 March 2013 the father without reasonable excuse failed to take the children L and B to school

1. The relevant Orders are those of 18 March 2008.

2. The mother relies upon the children’s school attendance records. The child L was marked as absent with no parental authorisation. The child B was marked as absent for the whole day – unjustified.

3. There is a prima facie breach of the Orders.

4. The father asserts that on 19 March 2013 the child L was unwell. He telephoned the school and informed them that she would be unwell for a few days. The child B was unwell on 20 March 2013.

5. A reasonable excuse for non-compliance with the Orders has been made out. The alleged contravention is dismissed.

Contravention 78/79 - the mother alleges that on 22 May 2013 the father without reasonable excuse failed to take the child B to school

1. The relevant Orders are those of 18 March 2008.

2. The child’s attendance records reveal that on 22 May 2013 the child was absent from school for the whole day – unjustified.

3. A prima facie breach of the Order has been established.

4. The father asserts that the child B was ill on that day and remained with him during the day until the evening, at which time the child was returned to the mother. It was not suggested to him in cross examination that this was not the case.

5. A reasonable excuse for non-compliance with the Orders has been made out. The alleged contravention is dismissed.

Contravention 80/81 - the mother alleges that on 29 May 2013 the father without reasonable excuse failed to take the children Z and B to school

1. The relevant Orders are those of 18 March 2008.

2. The attendance records for the children show that the child Z was absent for the whole day – unjustified. The child B was absent for the whole day – unjustified.

3. There is a prima facie breach of the Orders.

4. The father asserts that on the day in question he had received information that the mother had purported to sell a horse that was regarded as the child L’s horse. He says that he took the children with him to recover possession of the horse leaving early in the morning at 6.00 am and not being able to return until later in the day. He concedes that the children were not at school that day.

5. The father has established a reasonable excuse. The alleged contravention is dismissed.

Contravention 86/87 - the mother alleges that on 22 October 2013 the father without reasonable excuse failed to take the child Z to school punctually and for the full school day unless the non-attendance was necessary due to a medical appointment for the child or the child’s ill-health on the day

1. The relevant Orders are those of 14 October 2013.

2. The mother relies upon the child Z’s attendance records that reveal that the child was absent from school from 9.00 am until 10.26 am that day – unjustified.

3. There is a prima facie breach of the Orders.

4. The father says that on the day there was a doctor’s appointment for the child L at 10.00 am. He dropped the child L to that doctor’s appointment and then dropped the child Z to school, albeit late. He says that it was easier to transport the children on that basis that day as the child L’s doctor’s appointment was at Suburb G. He was not cross-examined.

5. A reasonable excuse has been established by the father. The alleged contravention is dismissed.

Contravention 90/91 - the mother alleges that on 18 November 2013 the father without reasonable excuse failed to take the child Z to school punctually for the full school day unless the non-attendance is necessary due to a medical appointment for the child or the child’s ill-health on the day

1. The relevant Orders are those of 14 October 2013.

2. The mother relies upon the child Z’s school attendance records that reveal a partial absence from 9.00 am until 10.00 am – unjustified – maths tutor.

3. There is a prima facie breach of the Orders.

4. The father says that having the child Z in his full-time care he arranged for the child to have maths tutoring. On that morning the child had maths tutoring at home that concluded at a time that prevented him from taking the child to school until 10.00 am. The father was not cross-examined.

5. The father has established a reasonable excuse for the contravention and the alleged contravention is dismissed.

Contravention 96/97 - the mother alleges that on 11 December 2013 the father without reasonable excuse failed to take the child Z to school punctually and for the full school day unless the non-attendance is necessary due to a medical appointment or the child or the child’s ill-health on the day

1. The relevant Orders are those of 14 October 2013.

2. The mother relies upon the child Z’s attendance records that reveal that the child was absent for the whole day – unjustified.

3. There is a prima facie breach of the Orders.

4. The father says that on the day the child Z was ill and he obtained a doctor’s certificate from Dr H. He provided that certificate to his then solicitor to forward to the mother. He says that he took the child to the doctor on the day of the absence from school. The father was not cross-examined.

5. The father has established a reasonable excuse for the contravention and the alleged contravention is dismissed.

Contravention 100/101 - the mother alleges that on 6 November 2013 the father without reasonable excuse failed to take the child L to school punctually and for the full school day unless the non-attendance is necessary due to a medical appointment for the child or the child’s ill-health on the day

1. The relevant Orders are those of 14 October 2013.

2. The mother relies upon the child L’s attendance records that reveal that the child was absent from 9.00 am until 9.59 am – reason “family matters” – with parental authority.

3. There is a prima facie breach of the Orders.

4. The father says that the child L was upset in relation to aspects of the mother’s relationship with her. He took time with the child to talk through the issues that morning and as a consequence the child was about one hour late for school. The father was not cross-examined.

5. The father has established a reasonable excuse for the contravention and the alleged contravention is dismissed.

Contravention 106/107 - the mother alleges that on 18 December 2013 the father without reasonable excuse failed to take the child L to school punctually and for the full school day unless the non-attendance is necessary due to a medical appointment for the child or the child’s ill-health on the day

1. The relevant Orders are those of 14 October 2013.

2. The mother relies upon the child L’s school attendance records. The records reveal that the child was absent from school for the whole day with no parental authority.

3. There is a prima facie breach of the Orders.

4. The father says that on that day the child in fact did attend school. He had dropped her at school himself, that day being the last day of school term. The father was not cross-examined.

5. The alleged breach of the Orders has not been proved and the alleged contravention is dismissed.

Contravention 114/115 - the mother alleges that on 1 October 2013 the father without reasonable excuse failed to attend year analysis from (sic) drug screening within 48 hours of request to do so (sic) Independent Children’s Lawyer and to provide the results to the mother and the Independent Children’s Lawyer

1. The relevant Orders are those of 19 December 2012.

2. The mother’s evidence is that by letter dated 1 October 2013 from the Independent Children’s Lawyer both parties were required to undertake urinalysis testing. That letter was forwarded to both parties’ solicitors by email. The mother says that no test results in respect of the father have been received by her or by her former solicitor.

3. There is a prima facie breach of the Orders.

4. The father says that on 3 October 2013 he undertook the urinalysis test requested by the Independent Children’s Lawyer and forwarded that test to his solicitor to be forwarded on to the Independent Children’s Lawyer and the mother. He is unaware, he says, as to whether his former solicitor did so. The test undertaken by the father (Exhibit B) was the subject of Report at 10.08 am on 3 October 2013. The father was not cross-examined.

5. The alleged breach of the Orders has not been proven and the alleged contravention is dismissed.

Contravention 116/117 - the mother alleges that on 10 December 2013 the father without reasonable excuse failed to take the child L to school

1. The relevant Orders are those of 14 October 2013.

2. The mother relies upon the child L’s school attendance records that reveal the child was absent from school on that day – reason “family matters” - with parental authority.

3. There is a prima facie breach of the Orders.

4. The father asserts that on that day the child was upset as a consequence of things that had been said to her by the mother. The father informed the child that because of her being upset she need not attend school that day. It appears from the school attendance records that he appropriately informed the school in relation to the child’s absence. The father was not cross-examined.

5. The father has established a reasonable excuse for the contravention and the alleged contravention is dismissed.

Contravention 122/123 - the mother alleges that on 15 January 2014 the father without reasonable excuse failed to return the passports of the children L and … (sic) to the mother

1. The relevant Orders are those of 18 March 2008.

2. It was conceded that the allegation relates to the children L and B.

3. The mother says that on 15 November 2013 she was provided with an overseas itinerary in relation to travel for the children for the period from 19 December 2013 until 14 January 2014. The mother provided the child L’s passport to the father on 17 December 2013, having previously provided the child Z’s passport to the child L to pass onto the father.  Subsequently, the children did not travel overseas. The father has not returned the child L’s passport to the mother.

4. It was common ground between the parties that the passport for the child Z has expired, although that expired passport has not been returned to the mother. 

5. There is a prima facie breach of the Orders.

6. The father conceded that there had been difficulties between himself and the mother in relation to the children’s passports. Exhibit C evidences that on 7 February 2014 the father made application for a new passport for the child Z. The passport was not issued as allegations were made to the Department of Foreign Affairs and Trade that the parent consent section of the application may contain false or misleading information. The father simply asserted that he had kept the passports for the children because the mother had been difficult.

7. The father has not provided a reasonable excuse and the alleged contravention is proved.

Contravention 140/141 - the mother alleges that on 12 May 2013 the father without reasonable excuse failed to consult with her in relation to make up time with the children

1. The relevant Orders are those of 27 April 2010.

2. The mother says that prior to the father’s overseas travel in May 2012 the father forwarded to her an email on 12 May 2012. At this time the children were living primarily with the mother and the children were spending time with the father in accordance with Orders of 18 March 2008.

3. The father failed to return the children to the mother following their time with him. His email, inter-alia, says:

   As I have to leave the children in the next few days for an extended stay in the UK I am taking the make up time owed to me for the extra month spent away while taking care of family commitments in May – June 2011….. If you have a problem with this I suggest you speak to your lawyers….

4. There is a prima facie breach of the Orders.

5. The father, in effect, conceded the breach saying that he did so out of frustration.

6. The father has not established a reasonable excuse and the alleged contravention is proved.

Discussion

1. These are proceedings under the provisions of section 70NEA of the Family Law Act 1975 (Cth). In summary, the section applies if the Court is satisfied that a person has committed a contravention of a primary order and the person does not prove that he or she had a reasonable excuse for the current contravention and the Court has previously not made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order or otherwise adjourned proceedings in respect of a contravention by the person of the primary order.

2. Section 70NEB sets out the powers of the Court in circumstances where a contravention is found proved under the provisions of section 70NEA.

3. A “primary order” is defined in section 4 of the Act to mean “an order under this Act affecting children and includes such order as varied”.

4. An “order under this Act affecting children” is defined, inter alia, to include:

   …

   (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    …

5. Section 68B(1) provides that “(i)f 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 …”.

Reasonable Excuse

1. Section 70NAE sets out the circumstances in which a person may be taken to have had a reasonable excuse for contravening an order under the Act affecting children.  They include, but are not limited to, circumstances set out in subsections (2), (4), (5), (6) and (7).

2. The Respondent father does not contend that he contravened the Orders because, or substantially because, he did not, at the time of the alleged contraventions, understand the obligations imposed by the Order on him (s 70NAE(2)).

3. The provisions of section 70NAE (4), (5), (6) and (7) have no application to these proceedings.

4. Accordingly, the Court must turn to look as to whether, apart from the provisions of section 70NAE, the Respondent had a reasonable excuse for contravening the subject Orders.

5. Section 70NAF provides that the onus is on the Respondent to prove such a reasonable excuse on the balance of probabilities.

6. It is conceded by the counsel for the Applicant mother that the contraventions fall into the less serious category contemplated by section 70NEA.

7. The provisions of section 70NEA(2) are applicable to the present contraventions in that the Court is satisfied that the Respondent father has committed a number of contraventions as proved above, the Respondent father has not proved that he had a reasonable excuse for such contraventions and no Court has previously made an order imposing a sanction or taking an action in respect of a contravention by the Respondent father of the subject Orders or previously adjourned proceedings in respect of a contravention by the Respondent father of the subject Orders.

8. The powers of the Court are set out in section 70NEB of the Act.  Relevantly, such powers include:

   (a)make an order directing:

   (i)the person who committed the current contravention; or

   …

   to attend a post-separation parenting program;

   …

   (c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;

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

   …

   (f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and

   …

9. Having found the contravention proved, the parties should normally be provided with the opportunity to make submissions as to the exercise of the Court’s powers under section 70NEB.

10. In these proceedings, the primary hearing is shortly for trial. Issues such as parenting courses and compensatory time are not appropriate in the context of this matter.

11. The father has the financial resource of a property in London. The mother is in receipt of a grant of legal aid and, in the absence of a cost order, the burden of the mother’s costs will fall on the taxpayer.

12. The father denied each and every alleged contravention, many of which have been found proved without reasonable excuse. The proceedings were necessitated by the father’s failure to comply with subject Orders.

13. In all of the circumstances, it is appropriate to order the Respondent father to pay the Applicant mother’s costs of the contravention proceedings under section 70NEB(1)(f).

14. An order will be made as set out at the forefront of these Reasons for Judgment.

I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 17 March 2014.

Legal Associate:       

Date:    17 March 2014