MACKENZIE & GALE
[2015] FCCA 2755
•9 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MACKENZIE & GALE | [2015] FCCA 2755 |
| Catchwords: FAMILY LAW – Children – parenting orders – contravention of parenting orders – reasonable excuse – reasonable excuse for contravening an order – where contraventions admitted – whether respondent has established a reasonable excuse – seven counts alleged – where reasonable excuse established in respect of three counts only. |
| Legislation: Family Law Act 1975 (Cth), ss.70NAE, 70NAF, 70NEA |
| Cases cited: Ramsay & Wade (No.2) [2014] FCCA 1989 |
| Applicant: | MR MACKENZIE |
| Respondent: | MS GALE |
| File Number: | CRC 125 of 2010 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 22 September 2015 |
| Date of Last Submission: | 22 September 2015 |
| Delivered at: | Sydney |
| Delivered on: | 9 October 2015 |
REPRESENTATION
| Solicitor for the Applicant: | Mrs Tanner |
| Solicitors for the Applicant: | Coffs Coast Family Law |
| Solicitor for the Respondent: | Ms McKinnon |
| Solicitors for the Respondent: | Slater & Gordon Lawyers |
ORDERS
The Respondent mother has established a reasonable excuse for contravening on 5 December 2014 Order 2.1 made on 20 December 2010.
The Respondent mother has established a reasonable excuse for contravening between 20 December 2014 and 3 January 2015 Order 2.2 made on 20 December 2010.
The Respondent mother has established a reasonable excuse for contravening on 5 February 2015 Order 2.1 made on 20 December 2010.
The Respondent mother did on 6 March 2015 without reasonable excuse contravene Order 2.1 made on 20 December 2010 by failing to allow the child X to spend time with the Applicant father in accordance with the Order.
The Respondent mother did on 3 April 2015 without reasonable excuse contravene Order 2.1 made on 20 December 2010 by failing to allow the child X to spend time with the Applicant father.
The Respondent mother did on 1 May 2015 without reasonable excuse contravene Order 2.1 made on 20 December 2010 by failing to allow the child X to spend time with the Applicant father.
The Respondent mother did on 6 June 2015 without reasonable excuse contravene Order 2.1 made on 20 December 2010 by failing to allow the child X to spend time with the Applicant father.
IT IS NOTED that publication of this judgment under the pseudonym Mackenzie & Gale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT COFFS HARBOUR |
CRC 125 of 2010
| MR MACKENZIE |
Applicant
And
| MS GALE |
Respondent
REASONS FOR JUDGMENT
Application-Contravention
This is an Application by the father of a boy called X to deal with the mother for contravention of parenting Orders made by this Court on 20 December 2010. The child concerned was born on (omitted) 2003 and is now twelve years old. He lives with his mother, the Respondent.
The Applicant claims that the Respondent contravened the Orders on seven separate occasions between 5 December 2014 and 6 June 2015.
The Respondent admits the allegations but claims that she has a reasonable excuse for contravening the Orders in each case. She has filed an affidavit on 22 September 2015 in which she sets out the reasons why she claims that she had a reasonable excuse for the contraventions.
The Orders
The relevant Orders are Orders 2.1 and 2.2 made by consent on 20 December 2010. The Orders form part of a graduated program by which the Applicant was to spend increasing amounts of time with the child.
Orders 2.1 and 2.2 provide:
That the father spend time and communicate with the child at all times as may be agreed between the parties and failing agreement:
…
1. Then for the first weekend of each month from after school Friday until 2.00 pm Sunday and for the first visit the Mother be responsible for delivering the child to the father in (omitted) and collecting the child from the Father in (omitted) and then each visit after that then changeover shall be at (omitted);
2. For 3 nights/4 days during each school holiday period with such school holiday time to take place in the (omitted) area with time to increase by one night in each consecutive school holiday period until 7 nights (8 days) in each school holiday period, save that for the Christmas school holidays the father spend up to two weeks with the child.
Contraventions
There are seven contraventions alleged, to all of which the Respondent has admitted and claimed a reasonable excuse.
Count 1 alleges a contravention of Order 2.1, in that on 5 December 2014:
The Respondent without reasonable excuse refused to allow the child X to spend time with the Applicant.
Count 2 contains the only allegation of a contravention of Order 2.2, in that between 20 December 2014 and 3 January 2015:
The Respondent without reasonable excuse failed to allow the child X to spend holiday time with the Applicant.
Counts 3 to 7 inclusive all allege a contravention of Order 2.1 in that on the following dates:
a)5 February 2015;
b)6 March 2015;
c)3 April 2015;
d)1 May 2015; and
e)6 June 2015:
The Respondent without reasonable excuse failed to allow the child X to spend time with the Applicant.
The Respondent, through her solicitor, admitted all of the contraventions but claimed that she had a reasonable excuse for doing so.
Reasonable Excuse
In the recent decision of Ramsay & Wade (No.2)[1]I considered the relevant law:
[1] [2014] FCCA 1989
9. Section 70NAE of the Family Law Act 1975 provides a guide to the meaning of the phrase “reasonable excuse for contravening” an order. Subsections 70NAE(1) and 70NAE(5) are relevant to this matter and are reproduced in full:
70NAE(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).
…
70NAE(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 by 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).
10. There are, as it can be seen, two legs in subsection (5), both of which must be met.[2]
[2] [2014] FCCA 1989 at [9]-[10]
The Respondent’s Evidence
The Respondent relied on her affidavit of 22 September 2015. She was cross-examined on her affidavit by Mrs Tanner, for the Applicant.
The Respondent deposed in her affidavit that in approximately June 2014 the child had said to her that he did not want to go to (omitted) to see his father and, when asked why, the child said:
“Dad left me in the car after dark and I was scared”.[3]
[3] Affidavit of Ms Gale 22.9.2015 at paragraph [3]
The Respondent deposed that the child went on to say that his father went into a bottle shop and purchased a bottle in a brown bag. He told her that on the way back the father would drink from the bottle in the brown bag whilst driving.
The Respondent deposed that she spoke to the police about her concerns, initially in (omitted) in Queensland and then to New South Wales Police in (omitted). She also spoke to a person called Ms J at the Child Abuse Prevention Service and obtained advice from her.
The Respondent further deposed that in October and November 2014 the child confirmed that the father had purchased alcohol from the same bottle shop in (omitted) and consumed it on the way home.
Because of her concerns, the Respondent decided not to allow the child to spend time with the father because of her concern for the child’s safety.
The Respondent stated that her then solicitor in Queensland, Ms Sarah Cleeland, wrote to the Applicant’s solicitors on 17 December 2014 raising her concerns, saying:
Our client instructs that X has disclosed to her that your client has been drinking alcohol whilst he is in the car with him. Our client instructs that she raised her concerns with the father in correspondence dated 23 November 2014.[4]
[4] Affidavit of Ms Gale 22.9.2015 Annexure “A”
The solicitor’s letter went on to say:
Our client requests that your client undertake a hair follicle test and a Carbohydrate Deficient Transferrin (CDT) test within 24 hours of receipt of this correspondence.
Our client is willing to attend Family Dispute Resolution with your client with respect to the issues raised in this correspondence. Can you please confirm your client’s willingness to attend.
Our client is not agreeable to X spending unsupervised time with your client until these issues are addressed.[5]
[5] Ibid
The Respondent deposed in her affidavit at paragraph [12]:
On my quest for safety, I have spoken to varying legal representatives for advice on this issue. The clauses I put into the orders relating to alcohol and drug use have been tenuous and it has been suggested that the orders be revisited. I cannot make a fair and wise decision until I have an idea of Mr Mackenzie’s drug and alcohol recent history. The reason why I asked for a hair follicle test is because it gives a detailed history of usage over a 6 or 12 month period, usually backed up with a CDT.
In cross-examination, the Respondent maintained the truth of her affidavit. She said that no one had advised her to commence contravention proceedings against the Applicant for breach of the Orders, the most relevant of which is Order 15, which provides:
That the father not consume alcohol to excess while the child is in his care.
Submissions
The father’s solicitor, Mrs Tanner, submitted that the Respondent has thwarted the child spending time with the Applicant at Christmas and subsequently. She has not commenced any court proceedings in respect of this matter.
In short, it was submitted that the Respondent has not made out a reasonable excuse for the contraventions.
For the Respondent, Ms McKinnon referred to the Family Report from the 2010 proceedings where the Applicant’s polysubstance dependency had been an issue “since day one”. The child has disclosed that the Applicant was drinking and he felt unsafe. He could have agreed to provide evidence that he was not drinking to excess. The Respondent has notified the Department of Child Safety in Queensland and the Police in both Queensland and New South Wales.
The child is of an age that he raises concerns about his safety.
Consideration
It is the person who claims to have a reasonable excuse for contravening a parenting order who has the burden of establishing the reasonable excuse (Family Law Act 1975 (Cth), s. 70NEA(1)(c)). The standard of proof to be applied in determining whether the person who contravened the order had a reasonable excuse for doing so is proof on the balance of probabilities (s. 70NAF(2)).
The Respondent must, under .s 70NAE, establish both:
a)a belief on reasonable grounds that not allowing the child and his father to spend time together was necessary to protect the child’s health and safety; and
b)the period during which the child and his father did not spend time together was not longer than was necessary to protect the child’s health and safety.
The Respondent has given evidence that the child has told her that the father has been drinking alcohol whilst he has been driving the child home. Clearly, if the father has been drinking alcohol whilst driving, this would pose a threat to the health and safety of the child.
The Respondent’s solicitor has referred to the Family Report prepared on 3 September 2010. The Applicant’s drug and alcohol use was covered in the Report at paragraphs [19] to [22] and in a recommendation at paragraph [69].
The child was born on (omitted) 2003. He was 11 years old when he raised with his mother his concerns about his father purchasing a bottle in a brown paper bag from a bottle shop and drinking from it on the way home. It is common knowledge that bottle shops place bottles of alcohol in brown paper bags when selling them to customers.
I am satisfied that the Respondent has established a belief on reasonable grounds that it was necessary to suspend the contact between the child and his father when she did.
However, the Respondent must also establish that the period during which the child and the Applicant did not spend time together was not longer than was necessary to protect the health and safety of the child. Her solicitor had written to the Applicant’s solicitor on 17 December, raising the Respondent’s concerns and seeking the provision of the appropriate hair follicle and CDT test. This was after the first occasion when she had withheld the child. When this letter apparently fell on deaf ears, the Respondent continued to withhold the child.
However, the Respondent could not continue with her unilateral suspension of the Orders indefinitely. She needed to do something further. The appropriate course would have been to bring an application to vary or suspend the Orders. She did not do so. She has not done so up to the date of the hearing.
Even allowing for the fact that solicitors may take holidays in January, the Respondent needed to have taken some steps to bring the matter back to court by the end of February, at the latest. The fact that the Respondent persisted with her unilateral suspension of the Orders indicates that the suspension, which was a contravention of the Orders, had gone on for too long to be considered to be not longer than was necessary to protect the health or safety of the child.
Conclusions
The Respondent has established a reasonable excuse for the contraventions in counts 1, 2 and 3, being from 5 December 2014 up to and including 5 February 2015. However, she has not shown a reasonable excuse for the contraventions in Counts 4 through to 7 inclusive, for the period from 6 March to 6 June 2015.
The Respondent has, on 6 March, 3 April, 1 May and 6 June 2015 without reasonable excuse, contravened Order 2.1 of the Orders made on 20 December 2010.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 9 October 2015
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