Macey and Macey and Anor

[2018] FamCA 653

FAMILY COURT OF AUSTRALIA

MACEY & MACEY AND ANOR [2018] FamCA 653

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Contravention – Where the parties have made an agreement about time spending that differs from the orders – Where the alleged contraventions are not established.

Family Law Act 1975 (Cth) Div 13A, ss 63C(6), 64B, 64B(1), 64D, 70NAC, 70NAE, 70NAF, 70NEA, 70NEC
Family Law Rules 2004 (Cth) r 21.08

Stavros & Stavros (1984) FLC 91-562

APPLICANT: Ms Macey

1st RESPONDENT: Mr Macey

2nd RESPONDENT: Ms Liddell

INDEPENDENT CHILDREN’S LAWYER: Nicholas Eid Lawyer

FILE NUMBER: ADC 1539 of 2014

DATE DELIVERED: 29 August 2018

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 9 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Ross

SOLICITOR FOR THE APPLICANT: Clelands Lawyers

COUNSEL FOR THE 1ST RESPONDENT: N/A

SOLICITOR FOR THE 1ST RESPONDENT: Angela Ferdinandy Solicitor

COUNSEL FOR THE 2ND RESPONDENT: Mr Tredrea

SOLICITOR FOR THE 2ND RESPONDENT: Carmen Wood & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lewis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Nicholas Eid Lawyer

Orders

1. That the Applications for Contravention filed 21 March 2018 and 2 August 2018 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1539 of 2014

Ms Macey

Applicant

And

Mr Macey

Respondent

And

Ms Liddell
Second Respondent

REASONS FOR JUDGMENT

INTRODUCTION 

1. On 21 March 2018 Ms Macey (“the paternal grandmother”) filed an Application for Contravention of orders made on 8 December 2014 and 15 September 2017 (“the first application”).

2. On 2 August 2018 the paternal grandmother filed a further Application for Contravention of the same orders (“the second application”).

3. Ms Liddell is the respondent (“the mother”). 

4. The first application alleges one breach of the parenting orders pertaining to X born in 2012 (“the child”).  The second application alleges 19 counts.

5. The paternal grandmother alleges that the mother failed to comply with parenting orders made 8 December 2014 and 15 September 2017 and that she did so without reasonable excuse.

6. Both applications were supported by Affidavits of the paternal grandmother filed 21 March 2018, 29 March 2018 and 2 August 2018.  In addition, the paternal grandmother also relied upon an Affidavit of Ms B Macey filed 29 March 2018 (“the paternal aunt”).

7. The parties each gave oral evidence.  They were represented by counsel.

8. Mr Macey (“the father”) and the Independent Children’s Lawyer (“ICL”) sought leave to withdraw from the contravention proceedings, but to be heard in relation to any parenting considerations pursuant to s 70NBA of the Family Law Act 1975 (Cth) (“the Act”), the father’s Application in a Case seeking parenting orders in respect of the child filed 16 November 2017 and the mother’s Application in a Case filed 1 August 2018 seeking to suspend the orders that provide for the child to spend time with the paternal grandmother.

9. Further consideration of the outstanding interim proceedings have been listed for hearing on 26 September 2018.

BACKGROUND

1. The child currently resides with his mother, her partner Mr C and a half-sibling currently aged three months.

2. The child had been spending time with the paternal grandmother pursuant to a consent order of the parties made 8 December 2014 in the following terms:-

   1.That [the child] live with the mother.

   2.That the child spend time with [the paternal grandmother] as follows:-

   2.1From Saturday, 20 December 2014 at 10:00 am to Sunday 21 December 2014 and each alternate weekend thereafter;

   2.2From 2:00 pm Friday 12 December 2014 until 6:00 pm Friday 12 December 2014 and each alternate Friday thereafter;

   2.3Such other times as are agreed between the parties.

3. Importantly, [4] of the orders provides:-

   That [the paternal grandmother] be restrained from taking the child to visit the father whilst the father is incarcerated or until there is an Order of this Honourable Court permitting the child to have contact with the father.

4. Paragraph 2.1 of the consent order made 8 December 2014 does not specify a time that the child’s time with the paternal grandmother is to cease. By reference to correspondence passing between the mother and the paternal grandmother and [5] of the paternal grandmother’s affidavit filed 29 March 2018 it appears that the parties interpretation was that the time should cease at 5 pm.

5. Whilst there were other terms and conditions pursuant to the order, it is relevant that the orders provide at [5] for handovers to occur at the D Park.

6. The ongoing parenting arrangements were the subject of amendment pursuant to a consent order on 15 September 2017 that provided for a change in the handover arrangements from the park to the McDonald’s Restaurant in Suburb E.

7. It is agreed that the child has not spent time with the paternal grandmother since March 2018.

8. Whilst there may be other concerns that the mother appears to hold in relation to the paternal grandmother, the gravamen of non-compliance with the order arises from her suspicion that the child had come into contact with his father contrary to the injunction that restrains the paternal grandmother from allowing this to happen.

9. The father was incarcerated from late 2013 to late 2017.

10. It is acknowledged that the father has seen the child whilst he has been in prison and has communicated with him by telephone.  There is some uncertainty as to the frequency of the contact and while the paternal grandmother acknowledges the focus of the injunction, she contends that the child saw the father with the express or tacit consent of the mother.  That contention is denied by the mother.

11. Upon his release from prison, the father resides with the paternal aunt.  He is on parole.

12. Whilst admitting that there were occasions that the child saw the father during his incarceration, the paternal grandmother denies that there was any occasion following the father’s release from prison that he was present during any time that the child spent with her pursuant to the orders.

13. The father was not called, although it was noted that he was present throughout the proceedings.

14. The relationship between the child’s parents can be described as highly conflicted.  Serious allegations are made by each against the other.  The mother alleges that the father is violent and that she was the victim of ongoing family violence during their three year relationship.

15. There is some basis for the mother’s concerns.  The father has an extensive criminal history involving violence and drug and alcohol abuse.

16. For their part, the paternal grandmother and possibly the father have alleged that the mother has also engaged in drug use and that her environment and conduct potentially places the child at risk.

17. There has been significant investigation in respect of the allegations against the mother.  To date the concerns have been unsubstantiated.

18. The mother accepts that the child has not spent time with the paternal grandmother pursuant to the orders, but argues that she has not contravened the order on any of the 20 alleged occasions for the following reasons:-

    (1)  That the parenting arrangements arising from the orders of 8 December 2014 and 15 September 2017 were varied by correspondence dated 29 March 2017 and 31 January 2018, but that the variation affected the arrangements but did not represent a variation of the orders.

    (2)  That the dates upon which it is alleged that a breach of the orders has occurred are not the dates that arise from the orders but are only explicable by reference to the correspondence.

    (3)  That the contravention in relation to the 20 counts specifically refer to [2.1] of orders dated 8 December 2014 whereas it is [2.3] of the orders that provides for “such other times as are agreed between the parties”.  Order 2.3 has not been pleaded.

    (4)  That if the Court determines that the paternal grandmother has not complied with the orders in respect of one or more of the alleged counts, then the mother says that she has a reasonable excuse (correspondence dated 29 March 2017).

19. The paternal grandmother and the mother acknowledged that the 2014 orders were not made in contemplation of the child commencing formal school education.  At the time of the 2014 orders the child was two years of age.  In correspondence dated 29 March 2017 from the mother’s solicitor to the paternal grandmother’s solicitors, the following extract has relevance:-

    3.The 2014 Orders provided for your client to exercise time with [the child] for one night per fortnight commencing at 10:00am Saturday and concluding 5:00pm Sunday (on our client’s instructions).  Additionally, [the child] was to spend a period of four hours with your client on the Friday of the intervening week from 2:00pm until 6:00pm.  Obviously it is not possible for your client to exercise this time with [the child] on the intervening Friday now that [the child] has commenced school.

    4.In these circumstances, our client also has an expectation that [the child] will spend one full weekend in her care each fortnight (given the time she spends with [the child] will now be more limited during the school week).

    5.Accordingly, we are instructed that our client will agree to [the child] spending time with your client as follows:-

    (a)Each alternate weekend from 9:00am Saturday until 6:00pm on the Sunday commencing Saturday, 1 April 2017;

    (b)Each intervening Thursday from 4:00pm until 6:00pm commencing Thursday, 6 April 2017.

    6.Our client requires all handovers to occur inside the McDonald’s Restaurant at F Town.

CORRESPONDENCE 31 JANUARY 2018

1. The mother had not been able to attend with the child as a result of motor vehicle difficulties.  She instructed her solicitors to write to the paternal grandmother’s solicitors putting forward a proposal for makeup time and seeking an undertaking that the paternal grandmother would not bring the child into contact with or communicate with his father.  The mother alleged that such an event may have happened.  The mother’s concerns are apparently based on a statement made to her by the child following a visit to the home of the paternal aunt on 20 January 2018 where he is reported to have said “daddy says he loves me”. 

2. Notwithstanding the mother’s concern and providing that an undertaking was forthcoming from the paternal grandmother that she would not bring the child into contact with the father, the mother’s offer was for makeup time from 8 am Saturday to 7 pm Sunday commencing 3 February 2018. Thereafter time would continue as provided for in the letter of 29 March 2017 to recommence on Saturday 17 February 2018 and on Thursday 8 February 2018.

3. The consequence of the purported variation caused by the correspondence is that pursuant to the orders the alleged breach on 17 March 2018 was not a date that the orders designated but rather, is only explicable by reference to the changes to the parenting arrangements by reference to the correspondence.

THE FIRST APPLICATION

Count 1

1. It is alleged that on 17 March 2018 at 9 am at Suburb E McDonald’s Restaurant the mother, without reasonable excuse, refused to allow the paternal grandmother to spend time with the child.  It is alleged that the breach is contrary to [2.1] of orders made 8 December 2014, [6] of orders made 15 September 2017 (handover location) as varied by the correspondence dated 29 March 2017 and 31 January 2018.

THE SECOND APPLICATION

1. The second application is comprised of 19 counts on various dates between 22 March 2018 and 26 July 2018.

2. The paternal grandmother’s counsel invited the Court to dismiss count 1 which relates to an alleged breach on 22 March 2018.

3. The mother elected to proceed in respect of the remaining 18 counts which allege breaches in respect of [2.1] of orders dated 8 December 2014, [6] of orders dated 15 September 2017 (handover location) as varied by the correspondence dated 29 March 2017 and 31 January 2018.

4. The paternal grandmother conceded that as and from 22 March 2018 she accepted that the mother was not intending to present the child for handover and accordingly she did not attend.

5. It is conceded by the mother that she had no intention of presenting the child that would enable him to spend time with the paternal grandmother.

6. The mother conceded her reasons for refusal were applicable to each of the alleged counts in terms of both applications.

THE LAW

1. It is Div 13A of Pt VII of the Act that designates the legislative pathway concerning an application for contravention of orders made under the Act. The alleged contravention as set out arise from parenting orders made on 8 December 2014 and 15 September 2017.

2. Subdivisions C to F of Div 13A of Pt VII provides the orders available to the court that can be made in instances where:-

   (a)A contravention has been alleged but not established (Sub-div C);

   (b)The contravention is established but reasonable excuse for the contravention is found (Sub-div D);

   (c)The contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (Sub-div E); and

   (d)The contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (Sub-div F).

Section 70NAC- Meaning of “contravened” an order

A person is taken for the purposes of this division to have contravened an order under this Act affecting children, if, and only if:

(a)Where person is bound by the order – he or she has:

(i)intentionally failed to comply with the order; or

(ii)made no reasonable attempt to comply with the order. …

Section 70NAE – Meaning of “reasonable excuse for contravening” an order

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

(2)  A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:-

(a)   the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

(b)  the court is satisfied that the respondent ought to be excused in respect of the contravention.

(3)  If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

(4)  …

(5)  …

(6)  …

(7)  …

Section 70NAF – Standard of proof

(1)  Subject to subsection (3), the standard of proof is to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

(2)  Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

(3)  The court may only make an order under:-

(aa)     paragraph 70NEB(1)(da); or

(ab)     paragraph 70NECA(3)(a); or

(a)      paragraph 70NFB(2)(a),(d) or (e); or

(b)      paragraph 70NFF(3)(a);

if the court is satisfied beyond reasonable doubt that the grounds for making the order exists.

Less serious contraventions

1. Section 70NEA sets out the manner in which a Court should deal with a contravention in circumstances where it is considered “less serious”.

2. Section 70NEC provides for the terms and conditions of a bond if the Court requires a person to enter into a bond under s 70NEB(1)(d) of the Act.

3. Rule 21.08 of the Family Law Rules 2004 (Cth) outline the procedure for hearing of an application for contravention orders.

Rule 21.08 – procedure for hearing

At the hearing of an application mentioned in 1A, 2, 3, 4 or 5 in Table 21.1, the court must:-

(a)inform the respondent of the allegation;

(b)ask the respondent whether the respondent wishes to admit or deny the allegation;

(c)hear any evidence supporting the allegation;

(d)ask the respondent to state the response to the allegation;

(e)hear any evidence of the respondent; and

(f)determine the case.

1. The mother does not admit that there has been a breach of the orders.

SUBMISSION

1. As discussed, without reliance upon the correspondence dated 29 March 2017 and 31 January 2018, it is acknowledged that the dates of the alleged contraventions are not supported by reference to [2.1] of the order dated 8 December 2014.

2. The mother’s counsel argues that the provisions of an order as varied by correspondence or agreement between the parties does not amount to an order that could sustain an allegation of contravention.

3. Whilst the paternal grandmother’s counsel rejected the mother’s argument, little was put forward in support of the contention that an order varied in writing could support a contravention.

4. It could be argued that there is an implied obligation to comply with a parenting order where there is a lack of clarity as to specific obligation pursuant to an order.

5. The decision of Stavros & Stavros (1984) FLC 91-562 concerned an application for contravention dismissed by Hogan J on the basis that his Honour found that unless an order was made with sufficient clarity a contravention application could not stand. The husband argued that there was a clear obligation on the wife to take reasonable steps to provide the child at the commencement of time. The Full Court held that it was implicit in the order that there was such an obligation.

6. By reference to s 70NAC a person is taken to have contravened an order where a person is bound by an order has failed to comply with the order. There is no reference to an order that may be varied by written agreement, or self-evidently by an agreement absent an order.

7. Section 64B addresses the meaning of “parenting order” and related terms and provides:-

   64B(1) – A parenting order is:

   (a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2); or

   (b)an order under this Part discharging, varying, suspending or reviving an order, or part of an order, described in paragraph (a);

   However a declaration or order under Subdivision E of Division 12 is not a parenting order.

8. By reference to the definition of an “order under this Act affecting children” it includes a parenting order.  There is also reference to a registered parenting plan within the meaning of subsection 63C(6).

9. Section 64D provides the circumstances where parenting orders may be subject to the parties entering into a later parenting plan.

10. The limitations imposed by s 64D in respect of the circumstances where a parenting order may be varied by consent is restricted to amendment by a later parenting plan.

11. It is not asserted that [2.1] of orders of 8 December 2014 have been the subject of non-compliance without reference to the correspondence between the parties.

1. The first application does not annex the correspondence.  The second application does.

2. In considering the letter of 29 March 2017, it is not open to the paternal grandmother to argue that the proposed parenting arrangements are an insignificant variation of the orders.  The letter is predicated upon an assertion that the 2014 orders are no longer appropriate given they were made at a time when the child was two years of age.

3. It is not suggested that the mother’s proposal represents a mere variation but rather, is an entirely different proposal taking into account the circumstances as existed as at 29 March 2017.

4. The following appears in the correspondence of 29 March 2017:-

   We note that this regime equates to the same amount of time your client was exercising with [the child] pursuant to the 2014 Orders.  Please note our client does not consider this an appropriate arrangement for a child of [the child’s] age in terms of Court Ordered contact with extended family members, especially given the extremely serious allegations our client makes in relation to the paternal family.

   Our client does not resile from her Application that she seeks to discharge the 2014 Orders in their entirety.

5. It is also appropriate to consider that the orders of 8 December 2014 provided for the following:-

   2.3      Such other times as agreed between the parties.

6. It may well be that a subsequent agreement reached between parties gains force by reference to an order that provides for such other times as the parties may agree.  Paragraph 2.3 of the orders of 8 December 2014 was not pleaded.

7. It is also an important consideration that even in circumstances where a “contravention has been alleged but not established (Subdivision C)” the Court is nonetheless able to consider a change to parenting orders pursuant to s 70NBA.

8. Accordingly, I find that the paternal grandmother has not established that the mother has contravened [2.1] of orders dated 8 December 2014 and [6] of orders dated 15 September 2017.

9. The first and second applications will be dismissed noting that the parties have secured a listing for a consideration of the ongoing parenting arrangements.

10. I make orders as appear at the commencement of these reasons.

I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 29 August 2018.

Associate: 

Date:  29 August 2018