LAWRENCE & MCCORMICK (No.2)

[2020] FCCA 2076

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAWRENCE & MCCORMICK (No.2) [2020] FCCA 2076

Catchwords:
FAMILY LAW – Contravention Application – Application heard on an undefended basis – certain contraventions proved – orders made.

Legislation:

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

Applicant: MS LAWRENCE

Respondent: MR MCCORMICK

File Number: PAC 1164 of 2016

Judgment of: Judge Newbrun

Hearing dates: 16 March 2020, 5 June 2020

Date of Last Submission: 5 June 2020

Delivered at: Parramatta

Delivered on: 30 July 2020

REPRESENTATION

The Applicant appeared in person

There was no appearance for the Respondent

ORDERS

1. The Court finds that the Father has contravened Order 5(a) of the Court’s Orders of 25 March 2019 on the following dates: 25 October 2019 and 8 November 2019.

2. The Court finds that the Father has contravened Order 5(c) of the Court’s Orders of 25 March 2019 on the following dates: 9 August 2019, 20 September 2019, 5 October 2019, 25 October 2019 and 8 November 2019.

3. The Court finds that the Father has contravened Order 5(d) of the Court’s Orders of 25 March 2019 on the following date: 5 October 2019.

4. The Court finds that the Father has contravened Order 9 of the Court’s Orders of 25 March 2019 on the following date: 3 October 2019.

5. The Court varies Order 5(c) of the Court’s Orders of 25 October 2019 so that it now reads as follows:

   5c) On the day the exchange is to take place, the Father must send a text or email by no later than 9 AM to the Mother to confirm he will be attending the exchange.

   Where either parent is unable to attend the changeover location, that parent must send a text message or email to the other parent advising who will be their delegated nominee to attend the changeover location by 9 AM the day the exchange takes place. Unless there are unperceived circumstances to which such notification shall be made reasonably impracticable.

   In the event of no text or email from the Father, the Mother and children are not required to attend the exchange location.

   This confirmation of attendance by text or email is to apply to all time spend periods being that of the alternate weekends, when it is the Father’s holiday time, celebratory days such as Christmas, Father’s Day, Mother’s Day et cetera.

6. The Father, within 21 days, shall advise the Mother in writing (including by text) of his current telephone number and email address for communication purposes.

7. The Father shall attend a Parenting Orders Program (POP) run by B Counselling NSW, within 28 days, or as soon as reasonably practicable.

8. Direct the Mother to notify the father, at his last known email or postal address within 7 days, of the above orders and below Notation.

NOTATION:

A.The Court or a Registrar may vary or set aside an order made in the absence of a party pursuant to rule 16.05 of the Court’s Rules.  Any application by the father to vary or set aside the above orders, pursuant to rule 16.05 of the Court’s Rules shall be made within 14 days of being notified of such orders.

IT IS NOTED that publication of this judgment under the pseudonym Lawrence & McCormick (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1164 of 2016

MS LAWRENCE

Applicant

And

MR MCCORMICK

Respondent

REASONS FOR JUDGMENT

1. This is the determination of the Mother’s Contravention Application filed 20 November 2019 on an undefended basis.  The Father has not appeared to defend this application.

2. The subject children are X born in 2006 and Y born in 2008.

3. The above Contravention Application had a return date of 16 March 2020. The Father did not appear at that time.  The Court made a direction that the application was adjourned for mention to 5 June 2020. The Court directed that should there be no appearance by the Father on 5 June 2020, the Court would give consideration to hearing the Mother’s Contravention Application on a final and undefended basis.

4. The Affidavit of Service filed on behalf the Mother on 4 December 2019 indicates that the Mother’s Contravention Application was personally served upon the Father on 3 December 2019.

5. On 5 June 2020, the Mother appeared and the Father did not appear. The Court heard the Mother’s submissions in relation to the Contravention Application and reserved its decision.

6. The final parenting Orders, the subject of the Contravention Application, were made on 25 March 2019. Those Orders provided, inter alia, that the children shall live with the Mother; that she shall have sole parental responsibility for the children; and the children spend time with the Father each alternate weekend from after school Friday to 5:30PM Sunday. Orders were made in relation to the changeover location. Order 5(c) provided that:

   Notwithstanding Order 5(b) above, on the occasion where either parent is unable to attend the changeover location, that parent must sent a text message to the other advising who will be their delegated nominee to attend the changeover location not less than 24 hours prior to exchange taking place.  Unless there are unperceived circumstances to which such notification shall be made recently practicable.

7. There are four alleged Contraventions in relation to Order 5(c) above; 9 August 2019, 23 August 2019, 31 August 2019, 20 September 2019.

8. The Contravention pleading in relation to each of these four alleged Contraventions states:

   (the Father) did not advise me in a text no less than 24 hours prior to or as reasonably practicable that he would not be attending the exchange location, nor did he delegated nominee to attend the exchange.

9. There is one alleged Contravention on 31 August 2019 relating to Order 5(g) which provides effectively that the children shall spend time with the Father:

   On the Father’s day weekend from 5PM Saturday to 5PM Sunday.

10. In relation to this alleged Contravention it is pleaded by the Mother that the Father did not have his Father’s day weekend time being 5PM Saturday to 5PM Sunday on 31 August 2019.

11. The Mother alleges a Contravention of Order 5(d) of the Court’s above Orders; Order 5(d) provided, inter alia, that the children spend time with the Father during the school holidays from 4PM on Saturday in the middle of the holidays until 5:30PM on the Sunday before school resumes in odd numbered years.

12. The Mother’s Affidavit in support of her Contravention Application is filed 20 November 2019.

13. The Court finds that the alleged Contravention on 9 August 2019, in relation to Order 5c) is proved; see the Mother’s Affidavit paragraph 13.

14. The alleged Contraventions on 23 August 2019, and 31 August 2019 (two alleged Conventions on this date), in relation to Order 5c) are not proved. The Mother had received an email from the Father on 18 August 2019 stating that he was unable to physically see the children for a few weeks (that is, three weeks up to 9 September 2019) as he was going into hospital; see paragraph 16 of the Mother’s Affidavit.

15. The Court finds that the alleged Contravention on 20 September 2019, in relation to Order 5c) is proved; see paragraphs 21 and 22 of the Mother’s Affidavit.

16. The Court finds that the alleged Contraventions on 5 October 2019 (one Contravention relating to Order 5(c), and another Contravention of this date relating to Order 5(d), the Father not exchanging the children for his school holiday time) are proved; see paragraphs 23, 24, 27 of the Mother’s Affidavit.

17. The Court finds that the alleged Contravention on 25 October 2019 (Order 5(c)) is proved; see paragraphs 28, 29, 30 of the Mother’s Affidavit.

18. The Court find that the alleged Contravention on 25 October 2019 (Order 5 a)-the Father not attending to spend time with the children for the weekend) is proved.

19. The Court finds that the alleged Contraventions on 8 November 2019 are proved, relating to breaches of Order 5a) and Order 5c); see paragraph 32 of the Mother’s Affidavit.

20. The Mother alleges a breach of the non-denigration Order, Order 9, on 3 October 2019.  The Court finds this alleged Contravention proven; see paragraphs 33 and 34 of the Mother’s Affidavit. The Father had sent a message to one of the children responding to the child’s earlier message:

    Mum she wants proof.  Because she got no phone call at 830.

21. The Father’s message had responded to this message as follows:

    Tell her I don’t have to prove anything to her Mr C’s her new bitch.

22. The Mother alleges a breach of Order 7 on providing, “The parties shall advise one another in writing (including hypertext) of any change to their contact telephone number (whether landline or mobile) within 48 hours of such change.” The Court is not satisfied that this alleged Contravention is proved because the Mother’s allegations in paragraphs 35 and 36 and 37 of her Affidavit merely suggest that the Father is not answering his present phone number and do not suggest that he has changed his contact telephone number.

23. The Court refers to the Mother’s written submissions in relation to her Contravention Application, wherein she seeks a variation of existing Court Orders in view of the Contraventions.

24. The Court refers to its Contravention findings above.

25. The Court has power to vary existing court Orders where a contravention(s) of parenting Orders are proved: section 70NBA(1) of the Family Law Act 1975 (Cth) (“the Act”).

26. The Mother seeks to vary Order 5(c) so that it reads as follows:

    On the day the exchange is to take place, the Father must send a text or email by no later than 9AM to the Mother to confirm he will be attending the exchange.

    Where either parent is unable to attend the changeover location, that parent must send a text message or email to the other parent advising who will be their delegated nominee to attend the changeover location by 9AM the day the exchange takes place. Unless there are unperceived circumstances to which such notification shall be made reasonably practicable.

    In the event of no text or email from the Father, the Mother and children are not required to attend the exchange location.

    This confirmation of attendance by text or email is to apply to all time spend periods being that of the alternate weekends, when it is the Father’s holiday time, celebratory days such as Christmas, Father’s Day, Mother’s Day et cetera.

27. The Mother submits that the reason for the above proposed variation is:

    Reason for this requested changes the last time the Father had spent time with his children was 19 July 2019. The Father has chosen not to communicate with the Mother regarding the children’s time spend with him. There has been several trips by the Mother and the children to Suburb D police station for mid holiday exchange, Christmas Day exchange et cetera, as well as having to wait at the children’s schools and take them home after 30 minutes, as the Father had not attended and had not notified the Mother he would not be attending.  This has had a negative emotional impact on both the children and especially X.

28. In the view of the Court, there is force to the Mother’s submissions above.  The Court will make the proposed variation, referred to above, subject to amending “practicable” to “impracticable”, so as to provide grammatical meaning to the sentence in which that word appears, it being in the children’s best interest make such proposed variation.

29. The proposed variation to Order 5(c) will minimise the risk of the children experiencing emotional harm should the Father fail to attend changeovers to spend time with the children. Such proposed variation will also avoid unnecessary travel by the Mother with the children in this context, which again carries the risk of the children experiencing emotional harm in circumstances where the Father does not attend changeover.

30. The Mother seeks the following further Order, relating to the children’s time to be spent with the Father as follows:

    5(c)(i)The children are old enough to make the decision whether or not they want to spend agreed times with the Father, limiting it to 6 times a year per child, the Mother is to notify the Father by text or email by 9AM the day before the exchange if either or both children are not wanting to attend the exchange.

31. The Court is not prepared to make such proposed Order, on the evidence presently before it, and even taking into account the found contraventions committed by the Father. There is no significant evidence before the Court in relation to the wishes of the children in this context.  Rather, the evidence before the Court is that the children have been disappointed by the Father not taking up Court ordered time to be spent with the children.

32. The Court observes that section 70NAE (5) (“Meaning of reasonable excuse for contravening an Order”) of the Act provides:

    (5)  A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting Order to the extent to which it deals with whom a child is to spend time with in a way that 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).

33. The Mother seeks in effect the following further Order, relating to Order 7, referred to previously in these reasons.  She seeks an Order that, “The Father shall advise the Mother in writing (including by text) of his current telephone number and email address for communication purposes.” It will be in the best interests of the children to make such Order, with the Court adding a time limit by which the Father shall comply with such Order, being 21 days, because it will minimise the risk of the Mother not being informed in a timely fashion of changes to the existing parenting regime, and thereby the children not being emotionally harmed through disappointment at the Father not taking up his time to be spent with the children pursuant to Court Orders.

34. The Mother seeks an Order that the Father be fined monetarily for the above proven breaches and that the Father be ordered to enter into a bond to be of good behaviour (without surety); that is, a bond by the Father that he will in future comply with parenting Orders.

35. There is limited power in the Court to fine the Father for the found breaches of the Court’s Orders (for example, it could theoretically fine a party who had contravened a Court Order if it found that such party had failed to enter into a bond as ordered by the Court; and the Court could theoretically fine a person who had entered into a bond, as ordered by the Court, and who had been found to have breached the bond subsequently).

36. The Court is not satisfied that it is proper, appropriate, or in the interests of justice, to make an Order that the Father enter into a bond.

37. The Mother’s Affidavit refers to the Father entering hospital in about mid-August 2019 for a few weeks for mental health reasons. The Father was to go into a private clinic in the Suburb E area for this purpose.  Nothing else is known about this hospital admission of the Father’s.  Taking into account that matter, noting that this matter was undefended, the Court is not prepared to order the Father to enter into a bond.

38. The Court is of the view that the Father’s proven Contraventions can be best addressed by the making of variations to the Court’s previous Orders, as discussed above.  Further, the Court will order the Father to attend a parenting Order programs (POP) run by B Counselling NSW, within 28 days, or as soon as reasonably practicable, it being in the best interests of the children to so order.

39. Accordingly, the Court makes the following Orders:

    (1)The Court finds that the Father has contravened Order 5(a) of the Court’s Orders of 25 March 2019 on the following dates: 25 October 2019 and 8 November 2019.

    (2)The Court finds that the Father has contravened Order 5(c) of the Court’s Orders of 25 March 2019 on the following dates: 9 August 2019, 20 September 2019, 5 October 2019, 25 October 2019 and 8 November 2019.

    (3)The Court finds that the Father has contravened Order 5(d) of the Court’s Orders of 25 March 2019 on the following date(s): 5 October 2019.

    (4)The Court finds that the Father has contravened Order 9 of the Court’s Orders of 25 March 2019 on the following date(s): 3 October 2019.

    (5)The Court varies Order 5(c) of the Court’s Orders of 25 October 2019 so that it now reads as follows:

    5c) On the day the exchange is to take place, the Father must, send a text or email by no later than 9AM to the Mother to confirm he will be attending the exchange.

    Where either parent is unable to attend the changeover location, that parent must send a text message or email to the other parent advising who will be their delegated nominee to attend the changeover location by 9 AM the day the exchange takes place. Unless there are unperceived circumstances to which such notification shall be made reasonably impracticable.

    In the event of no text or email from the Father, the Mother and children are not required to attend the exchange location.

    This confirmation of attendance by text or email is to apply to all time spend periods being that of the alternate weekends, when it is the Father’s holiday time, celebratory days such as Christmas, Father’s Day, Mother’s Day et cetera.

    (6)The Father, within 21 days, shall advise the Mother in writing (including by text) of his current telephone number and email address for communication purposes.

    (7)The Father shall attend a Parenting Orders Program (POP) run by B Counselling NSW, within 28 days, or as soon as reasonably practicable.

I certify that the preceding thirty nine (39) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 30 July 2020