Lagana and Lorenzo

[2014] FCCA 1618

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAGANA & LORENZO [2014] FCCA 1618

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – four separate counts – where contraventions admitted – reasonable excuse – whether reasonable excuse established.

Legislation:

Family Law Act 1975 (Cth), ss.70NAC, 70NAE, 117

Applicant: MS LAGANA

Respondent: MR LORENZO

File Number: CRC 170 of 2013

Judgment of: Judge Scarlett

Hearing date: 23 May 2014

Date of Last Submission: 23 May 2014

Delivered at: Coffs Harbour

Delivered on: 23 May 2014

REPRESENTATION

Solicitor for the Applicant: Ms Lee

Solicitors for the Applicant: Leckie Law

Solicitor for the Respondent: Mrs Tanner

Solicitors for the Respondent: Coffs Coast Family Law

ORDERS

1. The Respondent did on 20 April 2014 contravene Order 8 made on 17 September 2013 in that he did not provide the children [X] born [omitted] 2002, [Y] born [omitted] 2004 and [Z] born [omitted] 2006 for changeover.

2. The Respondent has established a reasonable excuse for the above contravention.

3. The Respondent did on 20 April 2014 without reasonable excuse contravene Order 2.3.1 made on 17 September 2013 in that he failed to provide time to the Applicant with the said children [X], [Y] and [Z] for the April school holidays.

4. The Respondent did on [date omitted] 2014 without reasonable excuse contravene Order 4 made on 17 September 2013 in that he failed to deliver the said children [X], [Y] and [Z] to the Applicant to enable the Applicant to spend time with her on her birthday.

5. The Respondent did on 7 March 2014 without reasonable excuse contravene Order 12 made on 17 September 2013 in that he failed to advise the Applicant that one of the said children had been admitted to hospital.

6. The Applicant Mother is to spend a further two days with the children during the September 2014 school holidays, such time to be deducted from the final two days of the time that the children would otherwise spend with the Father.

7. The Applicant and the Respondent are to forward a short written submissions on the subject of costs, covering the following issues:

   (a)whether an order should be made that the father should pay the mother’s costs;  and

   (b)if so, what amount of costs should be payable.

   within 14 days.

IT IS NOTED that publication of this judgment under the pseudonym Lagana & Lorenzo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT COFFS HARBOUR

CRC 170 of 2013

MR LORENZO

Applicant

And

MS LAGANA

Respondent

REASONS FOR JUDGMENT

1. The Application before the Court is an application by the Mother of the parties’ three children to deal with the Father for four contraventions of parenting orders which were made by consent in this Court on 17^th September 2013.

2. The Respondent in respect of each of the four counts has admitted the contravention and told the Court that he has a reasonable excuse.  It is well established that a party who asserts a reasonable excuse for a contravention bears the onus of establishing that reasonable excuse. 

3. The four counts refer to incidents in March and April of this year.  Counts 1 and 2 are dated 20^th April 2014 and claim breaches of orders 8 and 2.3.1 respectively. 

4. Count 1 claims that on 20^th April 2014, the Respondent did not provide the children for changeover.  Count 2 provides that the Father failed to provide time to the Mother, pursuant to the Court orders, for Easter April school holiday time.

5. Mrs Tanner, who appears for the Respondent, has submitted with some force that there is an element of duplication in those two counts.  I have given thought to that submission, but on reflection, it appears to me that the circumstances can be separated.

6. Count 3 alleges breach of order 4 on [date omitted] 2014, alleging that the Father failed to deliver the children to the Mother to enable them to spend time with her on her birthday.

7. Count 4 relates to the weekend of 7^th March 2014.  It alleges that the Father failed to telephone the Mother to advise her of their son being admitted to hospital. 

8. As I have said, the Father asserts that there is a reasonable excuse for each of those contraventions.  The Mother relies on her affidavit of 28^th April 2014.  The Father partly relies on an affidavit of 30^th April 2014, although it is conceded, as his solicitor makes clear, that the affidavit was not submitted primarily for the purpose of the contravention proceedings, but for the substantive parenting proceedings between the parties. 

9. I am not hearing the substantive proceedings between the parties and in my view, it is appropriate that I do not, and that those proceedings should remain with Judge Kemp in whose docket the proceedings remain.  It is preferable, where evidence is given in a contravention application, that the contravention should be heard by a judge other than one hearing the substantive proceedings. Fortunately, circumstances allow that in this case.

10. Turning now to the first count, that the Father did not provide the children for changeover on 20^th April 2014.  The venue for changeover is said in account to be McDonald’s [1] in [C], and indeed, Order 8 provides:

    That changeovers to facilitate time in accordance with these orders are to occur at school, and if not at school, then at McDonald’s [1] in [C].

11. Unfortunately, the Mother’s solicitor forwarded an email to the Father, who was not then fortunate enough to be in receipt of the legal representation that he now has, on 9^th April, saying:

    I note that school holidays commence this week.  My client would like to formalise the dates of changeover and provided two following dates and time: that my client to collect the children from you Easter Sunday at 10 am at McDonald’s [2].

12. It is conceded in the Mother’s affidavit that this was an error, and it has always been a weak point in the Applicant’s case that this error took place. Mrs Tanner, for the Respondent, has submitted that the orders themselves are quite clear. They should have been complied with. The orders make it quite clear that the changeover place was McDonald’s [1]. What happened, of course, on that day is that changeover did not take place and the Father took the children away as the eldest child [X] had some activity that afternoon.

13. In my view, this unfortunate error in notifying the Father is sufficient to establish a reasonable excuse.  Accordingly, in respect of count 1, I find that the contravention has been established, but the Respondent has established a reasonable excuse.

14. The circumstances do not end there. Count 2 is somewhat more expansive in that it alleges that the Father failed to provide time to the Mother, pursuant to the court orders, for Easter April school holiday time.  The circumstances that followed are confusing and unfortunate.  Allowing for the fact that the wrong changeover place had been set, the Father took the children away.  They went somewhere else.  He gave evidence that one of the children said they were having a good time playing with their cousins and could they stay on longer.  He said he would have to ring the Mother and apparently a call was made or left on the Mother’s phone. As it turned out, the children were not returned until the following morning.

15. Two things are clear.  It is not up to the children to vary the times set out in the orders.  Once it had become clear that an error had been made, the Father had an obligation to get the children to the Mother in compliance with the Mother.  What then happened on 21^st April later in the day was that apparently the child [X] received a telephone call from the Father, an unfortunate incident, which resulted in all of the children rushing out of the house, [X] telephoning the Father and demanding that he call the police, which he did.

16. It is not, in my mind, acceptable for the Father to have abrogated his responsibility to allow an 11 year old to call the shots, a wilful 11 year old from the sound of the affidavit material on both sides, and immediately bring the police into a dispute between the children and their mother.  It is certainly the Mother’s view that the dispute had been orchestrated over the phone by the Father, but I am not satisfied that the evidence allows that.  What it means is that over that period of time, the children should have spent three days with their mother.  Effectively, they spent one.  Accordingly, I am not satisfied in respect of Count 2 that a reasonable excuse has been established.  It has not.

17. Count number 3 alleges on [date omitted], the Father failed to deliver the children to the Mother to enable them to spend time with her on her birthday.  That is a contravention of Order 4, which provides on the parent’s birthday, should the children not be in their care on the parent’s birthday, that parent is permitted to spend time with the children on that day as follows: 

    4.1  Should it fall on a school day, for two hours from 4 to 6 pm;

    4.2 Should it fall on a non-school day, for four hours from 2 to 6 pm.

18. The evidence varies.  Each parent says that they went there and the other one did not turn up.  A “no show”, to use the Father’s words.  The Father was cross-examined on that point and it was put to him specifically the terms of paragraph 7 of the Mother’s affidavit, which said:

    I understand from discussions with my solicitor that [Mr Lorenzo] telephoned their office, left messages on their answering machine and attended upon their office in an aggressive manner and said words to the effect to the receptionist that:  “I put you on notice that I do not agree to changeovers other than at Interrelate.”  My solicitor advised me that she had a client with her at the time.  She heard what [Mr Lorenzo] said.  Her client was shocked by [Mr Lorenzo’s] behaviour.  My solicitor said that she called out to [Mr Lorenzo], saying words to the effect that:  “changeovers would be as per the court orders”.

19. Now, the Father denies that involvement.  Certainly, the form of the affidavit was somewhat lacking, but there was no challenge to that.  The Father’s evidence, in my view, as to those matters not happening, is to my mind vague and unconvincing.  I find that the contravention has been made out.  I am not satisfied that a reasonable excuse has been established.

20. The final contravention allegation refers to a rather extraordinary situation.  On the weekend of 7^th March 2014 at [omitted] Hospital, the Father failed to telephone the Mother to advise her of their son being admitted to hospital.  When this was put to the Father in evidence, he was vague as to the incident whatsoever.  It is not covered in his affidavit of 30^th April, but as has been made clear during the hearing, the affidavit was not specifically drafted by his solicitor with a view to meeting the allegations in the contravention application because the contravention and its supporting affidavit were not filed until 6^th May. 

21. The Father’s affidavit was sworn or affirmed on 30^th April, so unless his solicitor has the ability to read minds, neither she nor her client could have been aware these matters were coming, therefore it is no criticism of the father or his legal advisor that this point was not covered.  Accordingly, oral evidence was taken in respect of this issue.

22. The Father again was vague about that particular weekend and I look at the affidavit of the Mother where the circumstances are set out at paragraphs [12] to [14].  Paragraph [12], the Mother deposes:

    I understand that on the weekend of 7.3.2014, that one of my children was admitted to hospital.

    [13]: I was not advised by [Mr Lorenzo].

    [14]: My solicitor telephoned me on 11.3.2014 and stated words to the effect:  “I received an email from [Mr Lorenzo] advising that one of your boys was admitted to hospital on the weekend.  He does not say who or why.  I received after hours yesterday at 6.16 pm.”

23. Now, there is no specific denial of that evidence, and in my view it stands, therefore the Court must assess whether that evidence is sufficient to establish a contravention without reasonable excuse.  The order said to have been contravened is Order 12.  Order 12 says:

    That the mother and father are to keep the other advised of all significant medical appointments arranged for the children, and in the case of an emergency, they are to advise the other as soon as is possible.

24. It seems to me that that order is clear in its terms. I am aware of the fact that there is an apprehended domestic violence order in force, and a copy of that document’s present terms is annexed to the Mother’s affidavit. Order 6 provides that the defendant, naming the Respondent in this case, must not approach or contact the protected person by any means whatsoever, except through the defendant’s legal representative or as authorised by a current parenting order under the Family Law Act 1975.

25. Now, the Father has, throughout his evidence, expressed concern that he is restricted in his communication with the Mother by the terms of the apprehended domestic violence order. However, in respect of Order 12 of these orders and Order 6 of the apprehended domestic violence order, there is no conflict. The orders made by the learned magistrate in the local court provide specifically for communication in the emergency circumstances set out in order 12 of the consent orders of this Court. The orders sit comfortably together.

26. I now return to the evidence of the Mother. It appears that on the weekend of 7^th March, one of the children was admitted to hospital and her solicitor received an email on 11^th March.  There is certainly no breach of the order in the Father choosing, possibly for reasons of caution, to notify the mother’s solicitor of those circumstances.  However, the timing, in my view, is inadequate. 

27. Order 12 provides “as soon as is possible”.  It appears that there has been a delay of up to three days in that the solicitor advised the Mother on 11^th March that she had received the message after hours, at 6:16pm the day before, ie, 10^th March.  In my view, that cannot be described as “as soon as is possible.”  Whilst I accept the fact that the Father made some effort to notify the Mother, on that evidence, I am not satisfied that the effort was sufficient to constitute a reasonable attempt at compliance with the order, and accordingly, I find the contravention established and I am not satisfied that the Respondent has established a reasonable excuse.

28. It has been put to me on behalf of the Mother that the Mother seeks make-up time of a period of three days, that the Mother seeks costs, and that the Mother seeks a variation of the current orders, especially in respect of the Father’s telephoning, which she claims encourages instability in the children. 

29. Mrs Tanner, for the Respondent, has submitted that, amongst other things, the Mother has not approached this matter with clean hands and certainly has not at times attended when she should, in compliance with the orders.

30. What I should say is that the orders are not meant to favour one party over another. They are orders made by consent in this Court.  Coincidentally, they were made by me on 17^th September.  That, of course, is neither here nor there.  The orders could have been made by any one of the 65 judges of this Court, and they all have equal force.

31. It is not put to the Court that there has been a previous finding of a contravention of these primary orders.  That is a matter that I will take into account.  I am not satisfied that I should vary the primary orders, as I note there are substantive parenting proceedings before the Court, which I have no doubt will be dealt with by Judge Kemp in due course.  I am satisfied, however, that there should be some make-up time, although on the facts, it would appear to me that two days is appropriate, rather than the three days sought by the Applicant.

32. I am not satisfied that any further order by way of sanction need be made, except on the question of costs, which I will deal with in just a moment. 

33. On the question of costs, the Mother seeks costs. Costs need to be considered under the provisions in subsection 117 of the Family Law Act 1975, and there are a number of paragraphs of subsection 117(2A) that the Court needs to consider. In my view, procedural fairness requires that the Court should receive submissions on both (a) whether a costs order should be made at all; and (b) if the Court is minded that an order for costs is justified, what the quantum of those costs should be.

34. I do not think that it is entirely fair to the practitioners who have worked hard before me all day to expect them suddenly to turn around and rattle off a list of matters in compliance with subsection 117(2A) of the Family Law Act. It is now half past 3 on Friday afternoon. My associate and I will shortly be boarding a plane for Sydney. I think that in the light of these orders, the parties’ lawyers should have the opportunity over the next fortnight to turn their mind to brief written submissions on those very issues.

35. I have not, as I said, touched on the substantive parenting issues at all, nor do I consider it appropriate that I should.  I propose to adjourn the substantive matters till 11:30 am on 30 September, for mention before Judge Kemp.  By that the time the Court’s decision on the subject of costs will have been made available. 

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  31 July 2014