M and G (No.4) - [2004] FMCAfam 296

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & G (No.4)

[2004] FMCAfam 296

FAMILY LAW – contravention of parenting orders – whether order breached – supervised contact – respondent claims contact centre relieved her of obligation to give contact forthwith – whether person ordered to give contact must personally attend – whether respondent understood her obligations under the orders – application proved – respondent fails to prove reasonable excuse.

Family Law Act 1975
Federal Magistrates Court Rules 2001

Applicant:

U T M

Respondent:

L M G

File No:

PAM1855 of 2001

Delivered on:

21 June 2004

Delivered at:

Parramatta

Hearing date:

3 June 2004

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr M Bellantonio

Solicitors for the Applicant:

Bellantonio & Rees

Respondent:

In person

Solicitor Advocate for the Children’s Representatives:

Ms F. Neilson

Solicitors for the Children’s Representative:

Legal Aid Commission of New South Wales

ORDERS

The respondent failed to comply with Order (1)(1) made 12 December 2003 in that she failed to make the children R G born 1996 and S G born 1998 available for contact at Campbelltown Contact Centre on 13 March 2004 without reasonable excuse.
The respondent failed to comply with Order (1)(2) made 12 December 2003 in that she failed to make the children R G and S G complete orientation for supervised contact at Campbelltown Contact Centre on 28 February 2004 without reasonable excuse.
These proceedings are adjourned for further hearing at 10 am on 1 July 2004.
In the event that the respondent seeks to appear by video link or audio link the respondent must apply in writing to my associate no later than five (5) working days prior to the adjourned date. Copies of all correspondence submitted in support of this application shall be immediately copied to the children’s representative and the applicant’s solicitor.
The respondent mother, L M G pay the applicant father’s costs in the sum of $5,920 within six months.
The money payable pursuant to Order 5 shall be paid in equal monthly instalments, the first payment shall be made four weeks from today’s date.
In the event that the respondent defaults in making any instalment payment, the entire balance outstanding is immediately due and payable.
Interest calculated in accordance with the Federal Magistrates Court Rules 2001, (incorporating the Family Law Rules) is payable on the balance outstanding two months from the date of these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

Pam1855 of 2001

U T M

Applicant

And

L M G

Respondent

REASONS FOR JUDGMENT

The application

This is an application that the respondent contravened parenting orders. It is brought pursuant to Division 13A of Part VII of the Family Law Act 1975.
“The applicant”, U T M, started the proceedings when he filed a contravention application on 22 April 2004. The applicant claims that L M G (“the respondent”) contravened orders 1(i) and 1(ii) made in this court on 12 December 2003 (the second orders). These orders incorporate Order 1 made 25 September 2002 (the first orders) in the Family Court of Australia at Parramatta. The Family Court orders have been registered in this court and thus the court has jurisdiction to determine the application.
When the first orders were made, the parties were scheduled to start a final hearing concerning the applicant’s contact to their daughters R G born in 1996 and S G born in 1998. Both parties were represented and a children’s representative had been appointed to represent the children’s interests. They settled the proceedings, at least on an interim basis and the first orders were entered by consent.
After the first orders were made the respondent left New South Wales. Together with her husband and their two children, the respondent and the children the subject of this application moved to Tasmania. The respondent did not inform the applicant that she had departed or advise him of the children’s whereabouts. After nine months of searching, the Australian Federal Police located the respondent and children in Tasmania. The applicant filed a contravention application, which was heard 12 December 2003. At that hearing the respondent agreed that she had breached the first set of orders. The respondent entered into a bond requiring continuing compliance with operative parenting orders. After the hearing the respondent returned to Tasmania, where she and the children still reside.

Current orders

Orders made on 25 September 2002 are as follows:
1.That, for a period of 6 visits, the father shall have contact with the children R G born in 1996 and S G born in 1998 supervised by the Centacare Contact Service, Campbelltown, on such occasions and times as arranged by that Service (to be not more than once a fortnight for 2 hours).
2.That the father and mother each contact the said service on 46253137 within 24 hours and attend all appointments, sign all documents, pay all fees and do all things required by that Service to facilitate such supervised contact.
3.That from completion of the supervised contact in order 1 above, and subject to a further report by the counsellor, the father have contact with the said children on each alternate Saturday from 10.00 am to 5.00 pm, or on such times as the Contact Service determines, such contact to be exercised at the home of the father, such contact to be supervised by J M.
4.For the purposes of the contact in order 3 the parties attend the Centacare Contact Service) or such other place as the parties may agree), as that Service arranges for the supervised handover of the children and pay to that service all fees required for that service.
5.That each party have liberty to apply to the court for further contact or changes on 7 days notice.
6.That neither the father or mother are to denigrate, or make derogatory comments about the other or members of the family of the other to the children or in their presence or hearing and do their best to ensure that no other person does the same.
7.That the said supervised contact in order 3 above, to be only by the father on the first two occasions and thereafter to include J M, R M and M M at the discretion of the Contact Service.
8.That Julia Schwarz be requested to do an update report as to welfare of the children and their progression on contact shortly prior to the conclusion of the period of supervised contact in order 3 above. That both parties shall do all things necessary to attend the counsellor on dates to be nominated by the counsellor and for the children to attend.
The orders made 12 December 2003 are as follows:
1.That pursuant to section 70NM that L M G enter into a recognisance for twelve (12) months without security self in the sum of one thousand dollars $1,000 upon the following conditions:
a.That within one (1) calendar month days she will lodge all documents necessary to effect registration of the children R G born in 1996 and S G born in 1998.
b.That she complies with all current orders and in this regard by the end of February 2004 completes all intake procedures at the Campbelltown contact service previously required of her.
c.That L M G keep Mr Bellantonio informed of her residential address and telephone number.
2.That the applicant file submissions as to costs within seven (7) days.
3.That the respondent file a response to those submissions by 19 January 2004.

Did the respondent contravene an order?

The applicant contends that the respondent failed to make the children available for supervised contact at Centacare Contact Service, Campbelltown on 13 March 2004 without reasonable excuse. Also that she failed to complete all necessary intake procedures at the contact service in order to allow the applicant have contact with the children on 13 March 2004. Specifically by having the children complete the orientation program for the supervised contact. Two additional contraventions included in the application, being numbers 1 and 4, were abandoned at the start of the hearing.
Annexed to the first set of orders is a summary of obligations the respondent has as a person bound by a contact order. Hence, the orders comply with s.65DA(2). The explanation is in the usual form. These address stage one of the parenting compliance regime. In addition to the specific obligations set out under the orders, the respondent has obligations imposed by s.65N.
The respondent appeared on her own behalf by video link-up from Hobart. She indicated that she had taken legal advice from an experienced family lawyer concerning the contravention application and denied that she had breached any orders. In the event that the court found there was non-compliance with the orders, the respondent asserted that she had a reasonable excuse and that the contravention application should be dismissed.
After the respondent returned to Tasmania she completed the intake assessment for supervised contact at Centacare Children’s Contact Service at Campbelltown[1]. The respondent was advised that there was a waiting list for supervised contact and it would be some weeks before supervised contact could commence.
[1] Annexure B respondent’s affidavit
On 9 January 2004 the coordinator of Centacare wrote to the respondent confirming that the children were booked to complete “the children’s orientation” at 1.30 pm on 28 February 2004. The coordinator advised that because of demand for its services, she estimated that it may take approximately eight to twelve weeks before a time for supervised contact could be allocated to the family. Not long afterwards the coordinator advised both parties and the children’s representative that a place for supervised contact was available commencing 13 March 2004.
On 26 February 2004 the respondent’s solicitors, Fitzgerald and Browne Lawyers, wrote to the coordinator of Campbelltown Contact Centre. Relevantly, the letter provides, “Our client is pregnant. The baby is due in mid-June 2004. She now finds herself in the physical circumstances where travelling to Sydney for the purpose of facilitating the contact would represented a serious health risk to her. We enclose a copy of a letter from her doctor dated 25 February 2004, stating the serious risk to her if she were to travel now. You will note that her doctor recommends that such travel be referred until 6-8 weeks after the baby is born. In view of the advice from her medical practitioner, our client is unable to travel to Sydney this weekend. Can you please make another arrangement for her to do so, no earlier than end of July 2004. If the pregnancy is delayed, we will advise you so that the arrangement can be postponed to fit in with the recommendation of her doctor that she not travel for at least 6 –8 weeks after the birth”. In the accompanying letter Dr Sommerveld expresses the opinion, “Travelling during pregnancy in this lady would carry a high risk of premature labour and venous thrombosis. The minor symptoms of pregnancy are also aggravated by excessive activity and would be worsened by travel. In view of the difficulty in achieving this pregnancy and inherent risk of travel, I strongly recommend this lady does not travel until after the pregnancy.” It does not appear that this correspondence was provided to the applicant, his solicitor or the children’s representative.
After the coordinator received the letter she contacted the respondent’s solicitors. The respondent contends that the coordinator confirmed, “Contact was to have started on 13 March 2004 following assessment of the children, but that supervised contact would not be able to happen and the centre would notify U T M. The arrangement for assessment of the children and supervised contact would have to wait until after my unborn baby was born. She would telephone the respondent about this.”
The respondent also received a call from the coordinator which call ended because it was a poor line. The respondent contends that she completed all necessary intake procedures and that she did not fail to comply with orders for contact because the contact centre, not she, failed to facilitate an appointment on 13 March 2004.
When the respondent appeared in December 2003 and entered her bond, she was already pregnant. She returned to Tasmania subject to orders to give contact in New South Wales. Although she denies it, I accept the applicant’s evidence that at the conclusion of the December contravention hearing the respondent indicated that she would return to reside in New South Wales with the children no later than the end of January 2004. When she failed to do so she imposed upon herself significant costs and inconvenience associated with compliance with the orders.
I accept that by February 2004 it was unwise for the respondent to travel to Sydney and that she had good reason associated with her own health and that of her unborn baby for deciding against flying to Sydney. However, her evidence is silent concerning attempts she made to make the children available notwithstanding her inability to travel. At their ages, it would be unreasonable to expect S G and R G to travel as unaccompanied minors unless they are experienced air travellers. I have no evidence concerning this. The court cannot overlook that the respondent resides with her husband, Mr G. He accompanied her to the hearing of this application and was present in the courtroom. The respondent did not call him to give evidence in her case. I infer that his evidence would not have assisted her in this regard.
The obligations established by the orders required the respondent to make the children available in New South Wales. On the facts, as I understand them, the respondent had one of two choices. Either she and the children returned to reside in New South Wales in a timely way so that risks to her and the baby’s health associated with regular air travel could be avoided. Or alternatively she made arrangements for her husband or some other trustworthy adult to travel with the children for contact arranged at the contact centre. The respondent’s contention that the contact centre cancelled contact does not withstand scrutiny. In the solicitor’s letter the respondent cancelled the children’s orientation and any further contact until at least eight weeks after the baby was born. The coordinator of the centre did no more than deal with the fait accompli presented by the respondent. The respondent carried the onus of proving her reasonable excuse in accordance with the balance of probabilities. Not only has the respondent orchestrated the difficulties that she complains of concerning making the children available for contact, but also she failed to take any reasonable step to overcome those difficulties.
During final addresses, the respondent said that in the event the court was satisfied that she had failed to comply with the orders, she had a reasonable excuse for her non-compliance. Namely that she did not understand that she could delegate responsibility for taking the children for contact at the contact centre. This raises two questions that concern the interpretation of the orders. Firstly, is the respondent’s understanding that the orders required that she personally hand the children over at the start of contact correct? If it is she submits the court would excuse her because of her pregnancy. If incorrect, should the respondent be excused because she did not understand her obligations under the order, s.70NE(1A)? Insofar as the orders required the respondent to complete intake procedures, the orders require that the respondent personally do what the contact centre requires by way of her intake. She is not responsible to ensure that the applicant meets his obligations, which he did. She is responsible to ensure the children complete their intake process but is not required to be personally present when they do so, unless the contact centre requires it. There is no evidence that the centre required the respondents presence when the children completed their orientation or for contact. The language of the first order establishes an obligation on the respondent to ensure that the children are available so that the applicant may have contact. Nowhere in the orders is there language that could reasonably be interpreted as requiring the applicant to personally attend each contact occasion. All that is required of her is that she ensures the children are available for contact. Experienced counsel represented the respondent when the first set of orders was made and says that she has advice from an experienced family law specialist in relation to these and the earlier contravention proceedings. I do not accept the respondent’s submission that she believed that in order to comply with her obligations pursuant to the orders she was personally required to attend the contact centre and hand the children over for contact. I do not accept that the respondent genuinely believes the interpretation of her obligations that she now submits. Her argument appears to be an argument of convenience constructed as a last ditch attempt to avoid the consequences of failing to make the children available for orientation and then contact.
Where a respondent to a contravention application asserts that they have misunderstood their obligations pursuant to the orders, they have an obligation to attempt to clarify the effect of the orders. A respondent in the face of continuing dispute as to the effect of a contact order, for example, is not entitled to withhold contact on an unending basis waiting for the dispute to be resolved either by the applicant giving in or the court determining the issue. In this situation a party has a positive obligation to take advice and attempt to resolve the differing interpretation. In the same way that a party is not entitled to suspend orders for the asserted protection of a child interminably they must attempt to resolve any dispute and at least obtain legal advice about their obligations. If the respondent wished to rely on a claim that she received inadequate or inaccurate legal advice then she should have adduced evidence to this effect. She did not do so. Hence, I am satisfied that the respondent had received accurate advice as to her obligations pursuant to the orders and did not misunderstand the obligations imposed upon her by them. It follows that the respondent’s claim that her noncompliance with the orders should be excused as a consequence of misunderstanding her obligations pursuant to the orders fails.
For these reasons I am satisfied that the applicant has proved that the respondent failed to comply with the orders as alleged in his application and that the respondent has not proved that she had a reasonable excuse for her non-compliance. Having found the application proved, the court must now consider whether the respondent should be dealt with pursuant to stage 2 or stage 3 of the parenting compliance regime.
Stage 1 of the parenting compliance regime relates to prevention of breaches through knowledge and information to the parties. Stages 2 and 3 deal with contravention of orders affecting children. Stage 2 applies where:
·there is found to be a contravention without reasonable excuse of any type of order affecting children except a child maintenance order;
·there has been no similar finding in relation to the same order, that is, a second or subsequent breach; or
·there has been a similar finding and the court is satisfied, in any event, it is more appropriate for that contravention to be dealt with under stage 2; and
·unless the court is satisfied the person who contravened the primary order has behaved in such a way that they showed a serious disregard for his or her obligations under the order. If so, stage 3 must be applied.

The orders available under stage 2 are identified in s.70NG(1). The court can order that the respondent or both parties attend a post-separation parenting program, initially, for assessment for suitability and then to participate, a compensatory contact order or adjourn so that a further parenting application may be made.
Stage 3 of the parenting compliance regime applies:
·for second or subsequent breaches of the same order; or
·if a court is satisfied that the person behaved in a way that showed a serious disregard for his or her obligations under the primary order; and
·unless the court is satisfied that is more appropriate for the contravention to be dealt with under stage 2. See s.70NJ(1) and (2).
As well as determining this application, the respondent must now be called upon for failure to comply with the terms of her bond entered on 12 December 2003. When the respondent entered the bond pursuant to s.70NM the court deferred making orders pursuant to stage 3 for the duration of the bond. Provided the bond was complied with the respondent, in effect, avoided penalty. Having previously determined that the respondent contravened the earlier orders and that the contravention should be dealt with pursuant to stage 3 of the parenting compliance regime at the next appearance, the earlier application will be finalised as a stage 3 contravention. At the end of the hearing, the court advised the respondent that in the event that she failed to defeat this contravention application, she was in a difficult position and the consequences for her were potentially serious. The court recommended to her that she takes further legal advice and has legal representation when the matter resumed. One matter that the parties and their legal representatives will need to be in a position to address is the court’s power to order that the respondent complete community service in Tasmania.
Taking into account the respondent’s anticipated confinement, the next stage of the proceedings will resume at 10 am on 1 July 2004. Should she wish it the respondent may appear by video via the Federal Magistrates Court in Hobart.

Costs

There is an outstanding issue concerning quantification of the costs payable by L M G pursuant to the costs order made on 4 February 2004. This relates to the earlier contravention proceedings. By letter dated 27 February 2004 the applicant’s solicitors submitted a schedule of costs calculated in accordance with Schedule 1 of the Federal Magistrates Court Rules 2001. By letter dated 11 March 2004 the respondent’s solicitors gave her submissions in reply. There have been no further submissions received from the applicant’s solicitors in reply. The applicant’s solicitors claim $4,845 professional costs and disbursements, including GST, of $1,794.30.
The respondent contends that the applicant is entitled to $682.50 as the stage 1 component and not $1,365. The appropriate amount is $580 being stage 7. In addition the applicant is entitled to $190 for the appearance on 25 November 2002. Thereafter, each of the amounts claimed as professional costs by the applicant accords with the appropriate allowance pursuant to Schedule 1. In relation to the mother’s argument that items claimed on 11 July 2003 and 15 September 2003 are duplications, these are in fact different applications seeking location orders from different organisations. Thus, the amounts claimed are allowable and not duplications. The total professional costs therefore payable are $4,250.
Insofar as the disbursements are concerned, the mother concedes $200 conduct money that was paid to her father and sister, but denies the remaining $1,594. I agree that GST is not allowable and thus the dispute concerns the remaining $1,470. Included in the file are numerous affidavits of service and attempted service. It is apparent from these documents that the applicant has incurred significant expenses retaining process servers and commercial agents in an attempt to locate the respondent. It is apparent from the court file that there is a large volume of photocopying that has been done for the relevant applications and also that the children’s birth certificates have been provided. Thus, although in the ordinary course the court would expect the actual accounts from process servers and commercial agents, here the court has evidence of the work done. Rather than put the parties to further expense by requiring the applicant to provide the accounts, I am satisfied having regard to the totality of the evidence that the remaining disbursements claimed have been incurred. Thus, the additional $1,470 will be payable.
The total costs payable amount to $5,920. Since the respondent has been located she has appeared before the court and emphasised on each occasion her difficult financial circumstances. Apparently, her husband is not working and until recently her income as a nurse was the financial mainstay for the family. She is expecting a baby and presently not working. Whether she has taken paid maternity leave or is reliant on unemployment benefits is not clear. Whatever the situation may be the reality is that the respondent has modest financial resources and may need to borrow the money necessary to comply with this order. The applicant has incurred these costs because of the respondent’s conduct. Ordering him to wait a long time for the respondent to comply with the order for costs is unjust to him. Balancing the respondent’s limited financial circumstances with the applicant’s entitlement to payment in a reasonably timely way is difficult. Doing the best that I can it seems that the respondent should have the opportunity to pay the amount due by instalments over six months. This is approximately $1,000 per month. If she defaults in her payments the balance becomes immediately due and payable. Interest calculated in accordance with the Federal Magistrate Court Rules 2001 (adopting the Family Law Rules) will accrue on the balance outstanding month by month. Thus, should the respondent wish to avoid the payment of interest she should pay the entire sum due within one month.
For these reasons I make the orders identified at the start of this judgment.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Ryan FM

Associate: S. Mashman

Date: 21 June 2004