Labeck & Calandros (No 4)

[2021] FCCA 1045

FEDERAL CIRCUIT COURT OF AUSTRY A

Labeck & Calandros (No 4) [2021] FCCA 1045

File number:	DNC 115 of 2020
Judgment of:	JUDGE YOUNG
Date of judgment:	17 May 2021
Catchwords:	FAMILY LAW – contravention application – whether the mother had a reasonable excuse for contravening the interim parenting orders – where the mother has previously contravened parenting orders – where the father alleges the mother failed to make the children available to spend time with the father  – where the father alleges the mother collected the child from preschool in breach of the orders – where the mother admitted the breaches of the orders – Court satisfied the mother breached the orders without reasonable excuse on three occasions – good behaviour bond imposed – costs order against the mother.
Legislation:	Family Law Act 1975 (Cth) ss 70NFA, 70NFB
Number of paragraphs:	24
Date of hearing:	14 April 2021
Place:	Adelaide
Solicitor for the Applicant:	Ms Farmer of Withnalls Lawyers
Solicitor for the Respondent:	Ms Bowen of Bowen Lawyers
Solicitor for the Independent Children's Lawyer:	Ms Tregear of Arafura Legal

ORDERS

DNC 115 of 2020

BETWEEN:

MR LABECK

Applicant

AND:

MS CALANDROS

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	17 MAY 2021

THE COURT ORDERS THAT:

1.The respondent mother is found guilty of the contraventions alleged to have occurred on 9 September 2020, 7 October 2020 and 9 December 2020 in the Contravention Application filed on 15 January 2021.

2.By way of penalty, the respondent mother do enter into a Bond without surety or security to operate for a period of two (2) years and that it be a condition of that Bond that she observe and comply with the requirements of all parenting orders of this Court and of the Family Court of Australia in relation to the children subject to the proceeding.

3.The Contravention Application filed on 15 January 2021 do otherwise stand dismissed.

4.The father is to make any submissions in relation to the quantum of his costs within 14 days. The mother may respond within a further 7 days.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Labeck & Calandros (No 4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE YOUNG:

1. This is a contravention application by the father alleging that the mother contravened orders made on 3 September 2020 about two children, X, who is four years old and Y, who is three years and eight months old.

2. Relevantly, the mother and father consented to orders on 3 September 2020 in the following terms:

   1.That order 1 of the orders of 12 May 2020 be varied as follows:

   (b)     Commencing today, up until 25 September 2020 the children spend time with the father as follows:

   (i)The father spent time with X from after preschool or 2:30 PM to the latest time for changeover at A Family Services (currently 4:30 PM) each Wednesday, and the father spend time with Y from 3 PM to the latest time for changeover at A Family Services each Wednesday (currently 4:30 PM), and

   (ii)From the latest time for changeover at A Family Services Friday 4 September 2020 (currently 4:30 PM) to the latest time for changeover at A Family Services (currently 5 PM) on Saturday.

   (c)     Commencing on 25 September 2020 the children spend time with the father in each week as follows:

   (i)The father spend time with X from after preschool or 2:30 PM on Wednesday to the latest time to change over at A Family Services on Thursday (currently 4:30 PM) and with Y  from 3PM on Wednesday to the latest time for changeover at A Family Services on Thursday (4:30 PM) and

   (ii)From the latest time for changeover at A Family Services on Friday (currently 4:30 PM) to the latest time for changeover at A Family Services (currently 5 PM) on Saturday.

3. The father alleged that the mother contravened order 1(b)(i) on 9 September 2020, order 1(c)(i) on 7 October 2020, 9 December 2020 and 30 December 2020, and order 1(c)(ii) on 25 December 2020.

4. The mother denied the contraventions. However, in evidence it became apparent that she admitted breaching the orders on 9 September 2020, 7 October 2020 and 9 December 2020, though she asserted she had a reasonable excuse for the contraventions.  In relation to the alleged breaches on 25 December 2020 and 30 December 2020, the mother denied any breach.

   9 September 2020

5. The alleged contravention on 9 September 2020 was that the mother collected X from preschool and thereby failed to permit the father to collect X from preschool and failed to deliver Y to A Family Services at the commencement of her time with the father.  The order made by consent of the parties on 3 September 2020 contemplated that, in alternative weeks, the father would either collect X from preschool or, in the following week, from A Family Services as the child attended preschool on alternate Wednesdays. The agreed position of the parties appears to be that 9 September 2020 was a date when it was intended that the father would collect X from preschool and Y would changeover at A Family Services half an hour later.

6. The mother asserted that because X was upset when she was told that her father would collect her from preschool - this being the first collection from school - the mother went to the school with the intention of reassuring the child and facilitating the changeover.

7. The purpose behind the order for the father to collect X from school was to avoid having the mother present and the child potentially responding to the mother's anxiety. I am satisfied that the mother was aware of the intention of the orders and did not act in the spirit of the orders.  Nevertheless, as the mother points out, the order did not expressly prevent the mother from being present at the school and as X refused, according to the mother, to transition to the father at preschool she was not in breach of the order.

8. The mother says that she then took both children to A Family Services intending to do changeover there.  The father denies that the mother attended at A Family Services with the children. He left A Family Services once it was apparent they were not coming. It is agreed that neither of the children spent time with the father on 9 September 2020.

9. The mother was cross-examined with a view to establishing that, contrary to her evidence, she did not attend at A Family Services at all on 9 September 2020. The A Family Services notes for 9 September 2020, produced by subpoena, indicate that the mother had not arrived for changeover of Y by 3:00pm. The notes indicate that a A Family Services worker telephoned the mother but the mother’s phone was, according to a recorded message, either switched off or not in a serviceable area. The A Family Services worker called the mother again a few minutes later with the same result. The father decided to wait a little longer but at 3:25pm the A Family Services worker advised the father that it did not appear the mother was coming. He left. The notes do not record the mother attending at all.

10. In cross-examination the mother asserted that she attended at A Family Services but was “25 minutes late” for the appointment. She submitted that she was delayed because the children did not want to go.  She said that when she arrived she attempted to encourage the children to transition to father but they refused. Implicit in her evidence is a claim that the father was present. She said the A Family Services notes, in so far as they suggested she was not present at all, are inaccurate.  The mother was asked why she did not telephone to say she was late if her story were true. The mother simply said there was "an issue".  The “issue”, if any, was not explained. The mother’s response in cross-examination was dismissive. She did not appear to acknowledge or be aware of the gravity of the issues. I formed an adverse view of the mother’s credibility and I am satisfied she is an unreliable witness. This view was confirmed by other, later parts of her evidence. Whether or not the notes are inaccurate, in the sense that they did not record the mother arriving 25 minutes late after the set time, or at all, I am satisfied that she was either not present at A Family Services or was so late that the father had left A Family Services. There is no reasonable excuse. I find this contravention proved.

    7 October 2020

11. This count alleges that similar events to those of 9 September 2020 occurred. The father alleges that he attended to collect X from preschool but the mother was already present and had collected her. The mother claimed, as she did in respect of 9 September 2020, that she simply wished to support X at changeover. I do not accept her explanation as reasonable for the reasons mentioned above. On this occasion the mother and the children later attended at A Family Services but the children refused to transition to the father. I am satisfied the mother contravened the order by collecting X from preschool and did so without reasonable excuse.

    9 December 2020

12. The father alleges that similar events occurred as had occurred on 9 September 2020 and 7 October 2020 with the mother attending at X’s preschool and collecting her in breach of the order. He said the mother later attended at A Family Services with both children but that X was upset and did not transition to him.  The A Family Services notes indicate that Y did happily transition to the father but expressed a wish to return to the mother when X refused to transition to the father.   

13. The mother’s affidavit claimed that X was not scheduled to attend preschool on 9 December 2020 and did not attend.  She said she did not collect the child from preschool and, therefore, had not breached the order.  She said she acted reasonably when X refused to transition to the father at A Family Services.

14. The child’s preschool attendance record shows she was present at preschool for both the morning and afternoon of 9 December 2020.  The mother’s claim is also inconsistent with the A Family Services notes for 2 December 2020 which show that changeover took place at A Family Services on that day. This is consistent with the child not having been present at preschool in the alternate week. 

15. According to the A Family Services notes, the mother telephoned A Family Services at 11:00am on 9 December 2020 to say she would be bringing both children to change over at A Family Services.  In response to a query from a A Family Services worker the mother said there had been no preschool that day for X.  A Family Services then telephoned the father and advised him of the change of plan. 

16. As mentioned, the preschool attendance record for 9 December 2020 showed that X was present at preschool that day.  The A Family Services notes record X as confirming to her father that she had attended preschool that day.  I am satisfied X attended preschool on that day. I am satisfied that the mother attended and collected the child in breach of the orders.  I am satisfied her evidence that the child did not attend preschool on that day is untrue.  I am satisfied the mother contravened the orders without reasonable excuse. 

    25 December 2020

17. The orders did not provide for any special arrangements on Christmas day.  Further, A Family Services was closed on that day.  However, the parties entered into negotiations in December 2020 and it was agreed that the children would spend overnight time with the father from 23 December 2020 to 25 December 2020, with another changeover venue on 25 December 2020 to be at Suburb G police station.  The father’s affidavit in support of the contravention application says that Y spent time with him on 23 December 2020 at A Family Services.  The A Family Services notes suggest that Y was happy to transition to her father and changeover with her took place uneventfully.  X did not transition to the father to spend time with him. Although it is unclear from the affidavit, it appears that Y spent overnight with the father and returned to her mother the following day in conformity with the orders.    

18. Whilst there were no special arrangements for Christmas day, the father alleges that the mother contravened the orders by not providing the children to the father according to the normal orders for Friday time, notwithstanding that it was Christmas day. As A Family Services was closed on that day, the father’s allegation is that changeover ought to have taken place at Suburb G police station.  This is not the arrangement provided in the orders.  It is unclear to me from the father’s affidavit why the mother was obliged to provide the children for changeover at Suburb G police station.  It may be that that was the agreed changeover venue under the previously negotiated arrangement.  That is unclear.  However, the mother, rather than taking that point, claimed that she attempted to comply with the substance of the original order because she said, in the circumstances, she assumed that the original orders would apply.  She asserted that she and her father and the children waited at the Suburb G police station from 2:45pm for “over an hour” but the father did not turn up.  When it was pointed out in cross-examination that the orders provided for Friday changeover to be at 4:30pm she said she was present at that time.  Later in the cross-examination it was put to her that she was not present at the Suburb G police station at 2:45pm as she had deposed.  She answered that there had been a “miscommunication”.  The mother relied on an affidavit from her father.  Although the maternal grandfather’s affidavit says nothing about the events of 25 December 2020 he confirmed in cross-examination that he was not present at the Suburb G police station nor had he left his home on Christmas day.  While I am not satisfied the mother’s evidence is truthful about this issue I am not satisfied that she breached the orders in view of the fact that that the orders provided for changeover at A Family Services on a Friday and A Family Services was closed on Friday, 25 December 2020.  This count is dismissed.   

    30 December 2020

19. The father alleges the mother failed to provide the children for changeover at A Family Services.  The father said that he attended at A Family Services for changeover but the mother did not attend with the children.  According to the A Family Services notes, a A Family Services worker made a telephone call to the mother who informed the worker that the maternal grandfather had taken the children to Suburb G police station for changeover at 3:00pm.  The father said he immediately drove to the Suburb G police station and arrived there at about 3:32pm but the maternal grandfather was not present with the children.  He telephoned the mother who told him she was in hospital and her father would deliver the children.  At about 4:00pm the mother's brother, Mr H, accompanied by the maternal grandmother, arrived with the children.  The maternal grandfather followed in a second car.  The father said that Y transitioned easily but X refused to leave the car.  He said that when he spoke to X and asked her to come with him the maternal grandmother shook her head and X, apparently responding to this cue, answered “no”.  The maternal grandmother did not give evidence. 

20. Although I generally found the father to be a reliable witness, I feel unable to make a definite finding about this allegation. The mother said that she had injured her hand on 30 December 2020 and attended the hospital for treatment.  She said she was unable to drive to A Family Services.  I generally accept that the mother did injure her hand as there are hospital notes confirming that on that day she lacerated her hand and received sutures.  The father disputes that the injury prevented her driving.  He said he saw her approximately 10 days later driving a motor vehicle.  That observation does not seem necessarily inconsistent with the mother’s claim.  I generally accept that the mother was unable to drive on 30 December 2020 and was reliant on others to deliver the children A Family Services.  She did not give evidence about why her family members were unable to drive to A Family Services.  Nevertheless, I am satisfied the mother has a reasonable excuse for not taking the children to A Family Services.  This count is not proved.

    Conclusion

21. This is the second time the mother has been found to have contravened an order.  On 30 September 2020 she was found guilty of a contravention.  The contraventions proved against her in this application also constitute a breach of the good behaviour bond the mother signed on 13 October 2020. In that bond she undertook to be of good behaviour for 12 months until 29 September 2021.

22. I reserved my decision in relation to the contravention application and the trial of substantive issues followed immediately. The parties did not seek to make particular submissions in relation to penalty should I find a contravention proved. However, the mother’s trial closing submissions appear to have been, among other matters, generally directed towards addressing mitigating factors for the mother’s conduct. The father did not make any submissions in relation to penalty should I find a contravention proved. However, for the reasons addressed in my reasons for decision in relation to the substantive proceeding I am satisfied that the mother lacks a degree of insight into the emotional and psychological needs of the children. I am also satisfied that her use of illicit drugs and, probably, alcohol is problematic. The orders in the parenting proceeding include orders which will oblige the mother to seek therapeutic intervention. I hope that those orders will make any further instances of non-compliance with orders less likely. I consider that the requirement for the mother to enter another good behaviour bond is appropriate. However, as a previous sanction has been imposed on the mother I am satisfied that section 70NFA(3) of the Family Law Act 1975 (Cth) (the Act) applies and, as section 70NFA(4) does not apply, then the matter is to be dealt with under Subdivision F of Division 13A of Part VII of the Act. The mother will be required to enter into a good behaviour bond for 2 years without surety or security.

23. I intend to make a costs order against the mother pursuant to s 70NFB(2)(g). My present view is that the order should be for 60% of the father’s costs recognising that he was successful in only 3 of the 5 counts. However, as the father is in substantial arrears with child support payments I propose to offset those costs against the father’s liability. The execution of the order for costs will be stayed until the father’s liability is completely discharged.

24. The father is to make any submissions in relation to the quantum of his costs within 14 days. The mother may respond within a further 7 days.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       17 May 2021