MANCINI & ROSEN
[2019] FCCA 2157
•6 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANCINI & ROSEN | [2019] FCCA 2157 |
| Catchwords: FAMILY LAW – Contravention Application filed by the Mother – one of two children with firm views resisting spending time with the Mother pursuant to Orders – Father contends that he could not ‘force’ child to spend time with the Mother – contraventions made out without reasonable excuse – Mother’s Application for costs arising from the contravention – Father ordered to pay costs. |
| Legislation: Family Law Act 1975 (Cth), s.117 |
| Cases cited: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Stephens v Stephens (2011) 44 Fam LR 117 |
| Applicant: | MS MANCINI |
| Respondent: | MR ROSEN |
| File Number: | CAC 479 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | 27 November 2017 |
| Date of Last Submission: | 30 May 2018 |
| Delivered at: | Canberra |
| Delivered on: | 6 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms S Christie SC |
| Solicitors for the Applicant: | Farrell Lusher Solicitors |
| Solicitors for the Respondent: | Self-represented |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW Wagga Wagga |
ORDERS – CONTRAVENTION PROCEEDINGS
Count 1, which events occurred on 20 July 2016:
(a)The Father pleaded:
(i)In relation to [X], the Orders were contravened with reasonable excuse.
(ii)In relation to [Y], the Orders were contravened without reasonable excuse.
(b)The Court finds: The Father contravened the Orders without reasonable excuse.
Count 2, which events occurred on 27 and 28 July 2016:
(a)The Father pleaded: the Father denies any contravention of the Orders.
(b)The Court finds: The Father contravened the Orders without reasonable excuse.
Count 3, which events occurred on 4 August 2016:
(a)The Father pleaded: the Orders were contravened with reasonable excuse.
(b)The Court finds: The Father contravened the Orders without reasonable excuse.
Count 4, which events occurred on 5 – 8 August 2016:
(a)The Father pleaded: the Father denies any contravention of the Orders, or in the alternative, the Father contravened the Orders with reasonable excuse.
(b)The Court finds: The Father contravened the Orders without reasonable excuse.
Count 5, which events occurred on 10 – 11 August 2016:
(a)The Father pleaded:
(i)On 10 August 2016, the Father contravened the Orders with reasonable excuse;
(ii)On 11 August 2016, the Father did not contravene the Orders, or in the alternative, the Father contravened the Orders with reasonable excuse.
(b)The Court finds: The Father contravened the Orders without reasonable excuse.
Count 6, which events occurred on 17 – 22 August 2016 2016:
(a)The Father pleaded: the Father did not contravene the Orders, or in the alternative, the Father contravened the Orders with reasonable excuse.
(b)The Court finds: The Father contravened the Orders without reasonable excuse.
Count 7, which events occurred on 24 – 25 August 2016:
(a)The Father pleaded: the Father did not contravene the Orders, or in the alternative, the Father contravened the Orders with reasonable excuse.
(b)The Court finds: The Father contravened the Orders without reasonable excuse.
Count 8, which events occurred on 31 August – 5 September 2016:
(a)The Father pleaded: the Father did not contravene the Orders, or in the alternative, the Father contravened the Orders with reasonable excuse.
(b)The Court finds: The Father contravened the Orders without reasonable excuse.
ORDERS – COSTS
Within 60 days of the date of these Orders, the Father is to pay costs to the Mother in the sum of $1000.
All extant Applications are dismissed and the matter is now finalised.
IT IS NOTED that publication of this judgment under the pseudonym Mancini & Rosen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 479 of 2013
| MS MANCINI |
Applicant
And
| MR ROSEN |
Respondent
REASONS FOR JUDGMENT
Introduction
This Judgment is in two parts.
The first part relates to a Contravention Application filed by the Mother on 5th October 2016 which, for reasons explained later, was not heard until November 2017. Following the provision of detailed written submissions, oral reasons were delivered and Orders made on 20th April 2018. The oral reasons delivered on that day have been revised from the transcript and are set out below. Those reasons also provide the foundation for the later discussion and determination regarding costs.
Thus, the second part of these reasons relate to the Court’s determination of the Mother’s Application for costs arising out of the Court’s findings that the Father had relevantly breached the Orders on multiple occasions regarding the child [X] not spending time with his Mother. The Court found that there was no reasonable excuse established on any occasion by the Father.
For the purpose of these reasons, all references to the Applicant refer to the Mother, who is the Respondent in the substantive parenting proceedings. Similarly, references here to the Respondent refer to the Father, who is the Applicant in the substantive proceedings.
The contravention proceedings
The following abbreviated chronology provides relevant context for the contravention hearing and the attenuated, if not somewhat circuitous, route it took to reach it.
The Mother filed the relevant Contravention Application on 5th October 2016.
On 16th June 2017, Orders were made for the resumption of [X]’s time with his Mother.
On 21st July 2017, the Mother’s Contravention Application was listed for hearing on 27th November 2017. Various procedural directions were also made in these Orders for the filing of documents and the like.
On 8th September 2017, Orders were made appointing Ms B as a “Part 15 Expert”. Final hearing dates were also fixed for 2 days commencing on 13th September 2018.
Ms B's Report was released pursuant to Orders dated 10th November 2017.
The Contravention hearing proceeded on 27th November 2017, with both parties represented by Counsel. Unfortunately, it did not conclude on that date. On 30th November 2017 Orders were made that included a timetable for the filing of written submissions in the light of the oral evidence taken on 27th November.
The Orders made on 27th November 2017 and 21st February 2018 each provided, by consent, for the parties and the children to undertake various (and agreed) intensive family therapies.
For the purposes of the Contravention Application, the Mother relevantly pleaded that there were 8 breaches of the final parenting Orders made by Judge Harman on 10th April 2014. Each breach was particularised in the Contravention Application as well as in the Mother’s Affidavit filed in support of that Application. Further detail was set out in the extensive submissions of the Mother, and those filed on the Father’s behalf. Those particulars make it unnecessary to repeat what is set out below from the submissions regarding the precise details of the contraventions. The submissions also relevantly summarise the evidence.
Written submissions from the Applicant in relation to the alleged contraventions
The Applicant’s submissions in relation to the contraventions alleged were filed on 13th December 2017. They were as follows:
Submissions on behalf of the Applicant
1) On 5 October 2016 the Applicant mother (Ms Mancini) filed an application that the father (Mr Rosen) be dealt with for contravention of parenting orders.
2) The primary order is a final consent order made by Judge Harman on 10 April 2014. The order attached a statement pursuant to section 65DA(2) of the Family Law Act 1975 (Cth) (‘the Act”).
3) The children the subject of the primary order are [X] born … 2007 (“[X]”) and [Y] born … 2009 (“[Y]”).
4) The mother’s application was heard by the Court on 27 and 30 November 2017. At the commencement of the hearing the Respondent, through his Counsel, indicated that the position in respect of all 8 charges was that he did not contravene and if the Court were to find that he had contravened then he had a reasonable excuse.
5) It is not in issue in this case that on each of the 8 occasions on which a contravention is asserted by the Applicant, the child [X], did not spend time with the mother, and in respect of the first 2 contraventions, [Y] did not spend time with the mother.
6) While these submissions touch on any purported “reasonable excuse” which may be advanced by the Respondent such material is best contained in the submission in reply since the Respondent bears the onus to establish such a reasonable excuse and it is more useful to understand the facts and circumstances which are said to establish such an excuse before making submissions as to its objective merit as a defence to a breach.
All contraventions
7) The father knew of the existence of the order and its content and was legally represented when he consented to its terms.
8) The children were only just 9 and 7 years of age at the time of the contraventions the subject of this application.
9) The time dates on which it is alleged that the children (or one of them) did not spend time with the mother are dates on which the children (or one of them) were due to spend time with the mother.
10) The mother contends that the father intentionally failed to comply with the order, or in the alternative made no reasonable attempt to comply with the order on each occasion.
11) The father has not established a reasonable excuse as the phrase is defined in the Act.
First Contravention: Wednesday 20 July 2016
12) 20 July 2016 was a date on which the children were due under the orders of April 2014 to spend time with the mother, commencing after school at 3:20 pm.
13) By 11.00 a.m. on 20 July 2016 the father had conveyed to the child [X] that, notwithstanding the fact that he was due to spend time with the mother after school that day, the father would be waiting for him near the school grounds so that he could elect to go with the father should he choose (see Affidavit of Father [26]).
14) At 12 minutes past 3.00 p.m. on 20 July 2016 the father sent a message to the mother via email. In that message he did not convey to her the fact that he would be waiting in the proximity of the school at a prearranged spot.
15) The mother did not consent to the children accompanying the father on 20 July 2016.
16) It is not open to the father to argue that he has a reasonable excuse for, firstly, the child [Y] not spending time with the mother on 20 July 2016. There is no evidence capable of satisfying the statutory definition of “reasonable excuse”. To the extent that the father may argue that he had a reasonable excuse to retain the child [X], the following is relevant:
a) [X] was in Year 3 and 9 years of age. It is not in dispute that [X] had very recently spent an extended period of time in the mother’s care during the school holidays and by all accounts had enjoyed it;
b) it is not in dispute, the father having confirmed in cross-examination, that the children love their mother;
c) it is not in dispute that the father entered into Consent Orders at a time that he was legally represented and understood their import at the time at which the contravention occurred.
17) The highest that the evidence in the father’s case rose in respect of the incident of 20 July 2016, is that the child [X] had been distressed. Objective evidence supports the conclusion that his distress on that day arose out of an incident which had occurred at school.
18) The father’s role was to encourage, support and ensure that the children spent time with their mother in accordance with the Court orders.
19) The significance of the father’s pre-arrangement to meet [X] is that the Court will comfortably find that the father “intentionally failed to comply” with the order.
20) It is telling that at no time during the period of non-compliance with the Court orders did the father suggest that what he was doing was anything other than giving heed to the wishes of the child [X]. When asked whether or not the father had imposed any sanction on the child [X] for failing to comply with the father’s own (alleged) requests, the father was somewhat surprised at being asked the question. He confirmed that there had been no sanction imposed by him.
21) What in effect the father did on 20 July 2016 and, as will be clear from the submissions below, on subsequent occasions in 2016, was to create the circumstances in which he gave permission, both explicit and implicit to his children but, in particular, [X] that he was not going to require them to spend time with the mother.
22) During cross-examination it was put to the father that he must have been familiar with the opinion of Ms D, the Family Report writer who had provided the parties with expert evidence prior to the making of their Consent Orders, to the effect that it is normal and even desirable for young children to tell each parent they want to be with them. This message has clearly reached the children because, as Ms B in her most recent report records, the children have obtained from the father the message that it is their choice who they live with.
Second Contravention: 27 & 28 July 2016
23) The father was charged with having contravened the order which required him to facilitate the children’s time with the mother on 27 and 28 July 2016. On 27 July 2016 the children walked to their father’s workplace. The mother in her Affidavit at paragraph 20 says that when she went to collect them from the father’s workplace he said to her words to the effect “It’s their wishes I am not making them go with you”. The father through his conduct permitted the children to remain with him. He did not have the mother’s consent. There could not be a clearer example of the father being bound by a Court order and intentionally failing to comply with it and making no reasonable attempt to comply with it.
24) In answer to the argument raised at trial that the father’s obligation to facilitate time concluded when he dropped the children at school – the Court would reject same in the factual circumstances of this case. The two (3) key differences between the present case and the decision in MacDougall and Hampstead {2013} FCCA 390:
a)The children here were significantly younger;
b)The father had not actively encouraged the children to spend time with the mother;
c)The father had created the preconditions for failure to comply by imposing no sanction and remaining as an available alternative to the mother’s home.
25) To the extent that the father asserts that he had a reasonable excuse, he cannot mean by that that he did not understand the obligations imposed by the Court order. It is apparent that he was represented at the time of its making, continued to be represented by the same person during the period of the contravention and took legal advice during the relevant period.
26) To the extent that the father may assert that he had a reasonable excuse in the terms set out in s70NAE(4)(a) or (b) of the Act, it should be noted that the Act requires not just a belief that the father’s actions were necessary to protect the health and safety of a child, but also that the belief was on reasonable grounds. The father could have had at this stage no belief on reasonable grounds that his actions were necessary to protect the health and safety of either child and, to the extent that it is argued otherwise by him, certainly to no extent in respect of the child [Y]. At this stage the father had no medical, psychiatric or psychological advice which would support the conclusion that to retain one and indeed both children was necessary either for a short period or for the period for which the order applied. The first medical appointment arranged for [X] was 26 July 2016 see Affidavit of Father [31] and [39]. There is no medical evidence from that GP relied upon in this case.
28 July 2016
27) On 28 July 2016 the father had inexplicably not provided the clothing that the child [Y] wanted to wear to the disco. Leaving aside whether or not this was because he did not think that the children would be in their mother’s care, it was within his power to ensure that at the end of the disco they returned to their mother’s care as was required by the Court order. At paragraph 21 of the mother’s Affidavit she says that in the children’s presence the father said “I am not forcing the boys to come home they obviously don’t want to go”. This conduct in giving the children permission not to accompany their mother, having a conversation with the mother in the children’s presence about this whereby they felt free to make the election and that their father would support them, was an explicit derogation of the obligations imposed on the father by the Court order.
28) At the end of the disco the father had an extensive discussion with the mother in the presence of the children in which he made plain that if the children said they did not want to go with the mother then they could accompany him. When the mother said in her evidence “I came to the father for his assistance as it was the father with whom I was supposed to be co-parenting the children” she was abiding by the nature and spirit of the orders and the provisions of the Family Law Act. At no time is it apparent, even on the father’s evidence, that he supported the mother in her role as the children’s parent.
29) The mother queried the father as to [Y] accompanying her at the conclusion of the disco (as was provided for by the order) and the father conceded that he said that it could not occur as the boys needed to stay together.
30) The mother agrees that the conduct of [X] and [Y] was markedly different. [X] presentation alone cannot constitute reasonable excuse. But, what is clear is that there is no evidence in either parties case which begins to explain the father’s failure to comply with the orders so far as [Y] is concerned.
31) The repeated mantra of the father that he was not prepared to “physically force” the children or [X] to spend time with the mother rings hollow as a basis for reasonable excuse absent any evidence that the father took any reasonable steps to ensure compliance with the orders.
Third Contravention: 4 August 2016
32) On 4 August 2016 the children came to their father’s home (at a time when they were due to be with the mother) and when the mother came to the father’s home to collect them, instead of ensuring that the children accompanied her he said to the mother words to the effect “I’m not making them come with you I have rung DOCS”.
33) The father did indeed ring the Department of Family and Community Services and conceded that during the conversation with them he told Community Services that the mother was a “psychopath” and a “narcissist”. When questioned during cross-examination as to the conduct of the mother which caused him to form the view that he conveyed to Family and Community Services, the father either could not or would not provide the Court with any evidence as to what her conduct was. When put to him that it was as simple as - she wanted the children to spend time with her in accordance with the Court orders, the father appeared lost for words. It was apparent now that the father would at all times support whatever the children articulated to him, rather than supporting the Court orders or the mother’s requests that they cooperate to ensure that the children spent time with her. He imposed no consequences upon the children and seemed critical of the mother’s response that she was not going to put up with the children’s crying see Affidavit of Father [56]).. By that stage it is apparent, as was reflected in the father’s conversation with the Family Report writer at the child and family inclusive conference that the father saw no benefit in time for the children with their mother unless there could be an explanation for the children’s upset and in those circumstances was not prepared to support it.
Fourth Contravention: 5 August 2016
34) On 5 August 2016 both children were due to accompany the mother for a proposed trip to Melbourne. The mother attended at the school early to collect the children and an incident occurred with the child [X]. After that time the mother left without [X]. If this were an isolated contravention, then it may be open to the father to argue both that the mother through her conduct in leaving prior to the conclusion of school constituted no prima facie case or, in the alternative, that given [X]’s distress at the school the father could argue that he had a reasonable excuse. The difficulty with this argument in the circumstances of this particular case is that the father had laid the groundwork through his words and deeds in the period leading up to 5 August 2016, such that he was unprepared to support [X] spending time with the mother during this period.
35) The father had a subsequent opportunity to partially comply. The mother contacted the father ahead of her return by text message and indicated that it would be appropriate for the children to see one another and for her to have the opportunity to see [X].
36) In circumstances where the father’s evidence is that following her text message he says he consulted with [X] and [X] did not want to go with the mother, the father says, at paragraph 66 of his Affidavit, that he did not even make an attempt for that to occur “so as not to cause a scene”. The father’s failure to make any reasonable effort to comply is evidence in his own case of contravention of this Court Order, without reasonable excuse.
Fifth Contravention: 10-11 August 2016
37) The Court will find that the father embellished his evidence in respect of this particular incident when cross-examined. In his Affidavit at paragraphs 71 and 72 he talks about the involvement of the police. He describes [X] as looking “extremely stressed”. When the father gave oral evidence about this particular incident he described seeing visible white and red banding on the child’s face and described a child in extreme distress. In reality the situation is more likely to be that which he adopted on oath in writing. It is not to suggest that there was not stress occasioned by the circumstances in which the child found himself, i.e. one parent was requesting compliance with Court orders which would have provided that the children were together and the other parent was flaunting them and the parents were in conflict. The father described the child as so frightened and his face as marbled. Surprisingly, there is no evidence from the police to support this position. The reality is that it was no more complicated than the occasions which had occurred before, namely, that the father did not ensure that the child [X] spent time with the mother and involved the police as a form of trying to create a record that he had done nothing wrong. To that extent he failed.
38) The mother’s evidence (on which she was not challenged by cross-examination) recorded the text messages, the father writing “I think you should reconsider, take Artie home and the boys will meet at school tomorrow. [X] said he is not going with you.” (Mother’s affidavit [31]). Absent is any evidence of the father’s efforts to support the orders.
39) Further, the mother records (and was not challenged in cross-examination) that the father spoke to [Y] as follows:
“Do you want to come home with dad? Are you sure you don’t want to come home with dad? Are you going to be OK? Are you sure you will be OK?” see Affidavit of Mother [32]).
Such unchallenged evidence should be accepted by the Court and supportive of the submission that the father has failed in his obligation to support the orders.
Sixth Contravention: 17-22 August 2016
40) Both children were to spend the period 17 to 22 August 2016 with their mother. The father took no reasonable steps to ensure that the child [X] would spend time with the mother. The mother for her part continued to consult with the father, going to his home to speak to him for a period which he agrees was approximately 90 minutes in an effort to see whether or not the two of them could solve the problem. Following that discussion the father took no steps to ensure that the child [X] attended with the mother and he, in those circumstances, does not have a reasonable excuse.
Seventh Contravention: 24-25 August 2016
41) On 24 and 25 August 2016 the child [X] came to the father’s shop; the father imposed no sanction on the child for acting other than in accordance with the Court orders and it is apparent from the conversation which took place between the mother and the father that the father had created the circumstances in which the order could be contravened with impunity. As the father said to the mother of [X] “He is a young man and he is making his own decisions now”. The mother quite properly reminded the father that the child [X] was a boy, at this stage, a 9 year old boy in Year 3.
42) The father, during a conversation with the mother, indicated his true view as to the value of the Court orders and his intention of acting in accordance with them when he said to her words to the effect “I don’t give a shit about your side of the Court Orders”. Through his words it made it clear that the father had little respect for either the Court Orders or the mother and scant respect for the importance of the relationship between the children and the mother. The father said to the mother words to the effect “He’s starting to wake up to himself, he’ll think my God how do I flush this blood out of me”. When the father was cross-examined about that he was unwilling to indicate to the Court what he meant when he said that, preferring to suggest that the conversation was heated. It is apparent on the fact of it that the father has no respect for the children’s mother and is engendering no respect for the children’s mother in the children.
43) The mother requested that the father bring the child [X] round to her on 25 August 2016 see Affidavit of Mother [35]). The father took no step to do so. At no time did the father point to any evidence which would suggest that he had the mother’s consent, whether tacit or explicit, to retaining the child [X]. In fact the evidence is to the contrary. The mother requested compliance and the father failed.
Eighth Contravention: 31 August – 3 September 2016
44) This contravention was orally amended to apply to the period 31 August to 3 September 2016. The child [X] did not spend time with the mother on 31 August, 1 September or 2 September. He walked to the father’s shop from the school and the father did not ensure that he spent time with the mother. The father agreed in cross-examination that at this point he was unhappy about the mother speaking to [X]’s school counsellor, was unsupportive of her parenting and was thinking about seeking full custody.
45) The opportunity existed for [X] and the mother to see one another at changeover for the purpose of Fathers Day. The father in his material suggested that he did not want to disturb [X] because he was a 45 minute drive away. The father seemed to have preferred not to inconvenience himself or the child over the opportunity that the child and the mother might see one another. The mother said to the father by text message on 31 August 2016 that the father needed to set some ground rules for the children about whether or not they could or couldn’t run away. She said to him words to the effect “He won’t do it if he knows you are serious”. The reality is that the father was always available so that there was always the possibility of the child [X] not spending time with the mother. The father made no effort to comply with the Court orders and certainly cannot be seen to have a reasonable excuse for his failure to comply absent proper evidence as to what it was about the child’s physical or psychological wellbeing which required the father to flout the Consent Orders.
Sanction
46) This matter is one to which section 70NAA(3)(c) applies, that is the Court will find that there was a contravention of court orders by the father on each occasion and that there is no evidence to meet the objective reasonable standard, as per the meaning of reasonable excuse.
47) The only remaining matter then is whether the Court finds that it is a less or a more serious contravention.
48) The Court will find that the father’s conduct is such that it invokes section 70NEA(4) of the Act, namely the father has behaved in a way that showed a serious disregard for his obligations under the primary order and consequently, his breach cannot be considered less serious and the penalties which are to be applied are those contained in in subdivision F of Division 13A of the Act.
49) Given the sanction sought by the applicant no issue arises about the appropriate standard of proof. The Court needs to make a finding on the balance of probabilities in respect of the contravention and any contention concerning "reasonable excuse": section 70NAF(1).
50) The Applicant seeks an order that the Respondent be placed on a bond for a period of two years to be of good behaviour (including complying with orders of this Court) with security in the sum of $ 10,000.
51) If the Court accepts that it is a more serious breach then the bond will be pursuant to the provisions of section 70NFE of the Act. If the courts accepts that it is a “less serious” breach then it will be made pursuant to section 70NEC of the Act.
52) In determining the sanction the Court would have regard to the nature of the Contravention, the significance to the mother, the significance to both the children of the consequent periods of separation, the length of time since the parties separated, the father's regard for the Court's orders, the necessity to ensure that parties comply with orders of the Court, and the fact that the parties have previously engaged in parenting programs.
53) There is nothing in the sanction sought which could be said to impact (negatively) on the welfare of the subject children.
54) Given the nature of the sanction sought it will be necessary for the Respondent to attend upon the Registry to have the terms of the bond explained to him by the Registrar (or as the Court may direct).
Costs
55) Either by reason of section 70NEB(1)(f) or section 70NFB(g) or (h) of the Act the Court will make an order that the Respondent pay all of the costs of the Applicant.
56) The proceedings were brought because of the Respondent’s non-compliance.
57) The Respondent filed no application to alter the existing final consent orders until more than 9 months had passed since his first contravention.
58) The Respondent defended all charges and did not even concede breach and move to consideration of reasonable excuse on any of the 8 charges.
59) Each party was represented by counsel.
60) The application was heard over two sitting days and written submissions.
61) It is appropriate that the Court order the applicant’s costs be met by the Respondent.
62) Each party reserved the right to make further submissions concerning costs within (7) days of delivery of reasons for judgment.
Written submissions from the Respondent in relation to the alleged contraventions
The Respondent’s written submissions in relation to the alleged contraventions were filed on 25th January 2018. They were as follows:
Submissions on behalf of the Respondent
Overview:
1) These are contravention proceedings in which the Applicant Mother alleges that the Respondent Father contravened final parenting orders which had been made by consent between the parties on 10 April 2014 (“the orders”).
2) The children the subject of the orders are:
- [X] born … 2007 (“[X]”) – aged nine (9) at all material times; and
- [Y] born … 2009 (“[Y]”) – aged seven (7) at all material times.
3) The orders operated satisfactorily until July 2016 at which point they broke down – with neither child wanting to go into the Applicant’s care, and both children becoming highly distressed and emotional at that prospect. The Respondent was alarmed at the childrens’ distress and particularly concerned in relation to [X].
4) In [Y]’s case, the unwillingness to attend was temporary and he quickly recommenced visits as required by the orders. In [X]’s case, his unwillingness has been ongoing, at times somewhat dramatic, and stubbornly resistant to even expert intervention that the parties (and the Court) have facilitated.
5) The Respondent’s position in these contravention proceedings is that:
a)the proceedings are quasi-criminal in nature;
b)in respect of each alleged contravention, the Applicant carries the onus of proving that the Respondent “contravened” the orders as that term is statutorily defined in s.70NAC. While the Respondent admitted at the hearing that the child/ren did not spend time with the Applicant at various dates as alleged in the Application-Contravention, this was not an admission that in each case the Respondent “contravened” the orders within s.70NAC. The Court’s finding at the hearing that the Applicant had made out a prima facie case of contravention does not involve a final finding that the Respondent “contravened” as required by s.70NAC;
c)in relation to a number of the alleged contraventions the Respondent’s primary position is that on the evidence it cannot be established that he “contravened” the orders in the first instance, so that no question of “reasonable excuse” arises. In the alternative he submits that he had a “reasonable excuse”. He accepts that he carries the onus of proof of establishing the existence of any “reasonable excuse” within s.70NAE;
d)the Respondent does formally concede that he contravened the orders in respect of [Y] without “reasonable excuse” in respect of Count 1 only. In respect of Count 1, the Respondent submits that this contravention was not “intentional” but with the benefit of hindsight was an example of the Respondent acting in an overprotective/over-indulgent manner towards [Y] in the face of [Y]’s protests and distress about going to the Applicant. These submissions will address questions of penalty.
6) The primary focus of these submissions will be in relation to [X] – whose distress at all material times was real, and was observed and was acted on by the parties.
Count 1 (20/07/16): Not guilty ([X]); Guilty ([Y])
7) The Respondent’s unchallenged evidence was that on 19/07/16, the day prior to the alleged contravention, [X] was sobbing, curled up in the foetal position and not wanting to go to school that morning. Such was the child’s apparent upset that the Respondent gave [X] the day off school and contacted the school (he deposes “in desperation”) to see if [X] could see the school counsellor. [X] cried himself to sleep that night.
8) On 20/07/16, the date of the alleged contravention, [X] was again markedly distressed. The father managed to get him to the school and he sets out his evidence of what occurred at paragraphs 23 and 24 of his affidavit. In short, [X] was burying his head in the Respondent’s shoulder, saying he didn’t want to leave him, and refusing even the School Principal’s suggestion that he go home with the Applicant.
9) The Respondent’s evidence was that he had genuine concerns about [X]’s emotional welfare. He concedes in his affidavit material that he decided to offer [X] a ‘choice’ to come home with him after school that day if he wished to. This appears to be the gravamen of the Applicant’s complaint.
10) The Respondent sent the Applicant an email at 3.10pm, advising that [X] was very stressed, not wanting to go to school or into the Applicant’s care, and suggesting that they arrange professional assistance for [X] (a child psychologist) as soon as practicable.
11) After school, the Respondent waited at the bus stop and [X] elected to go with the Respondent rather than the Applicant. That evening the Respondent spoke to [X] who remained resistant to going to the Applicant’s home. The Respondent’s case is that he was worried about [X], and wanted to find out what was wrong, that he told [X] as much and that he told [X] he needed both his mum and his dad. The Respondent followed up with a detailed email to the Applicant at 10.47pm that evening setting out his concerns about “the boys mental health stability especially for [X]”. The email speaks for itself – the Respondent clearly conveyed that he considered it to be a very serious situation that required urgent expert intervention.
12) The Respondent submits that he had a “reasonable excuse” for his actions in that he believed on reasonable grounds that his actions were necessary to protect [X]’s emotional health or safety and that – in sending [X] to school the following day and allowing the Respondent to collect him – the Respondent did not retain [X] any longer than was necessary: s.70NAE(4).
13) In cross-examination the Respondent described himself as being “so concerned about [X]’s wellbeing, so distraught” and the Court would accept that as honest.
14) While [Y] was also upset, the Respondent conceded in cross-examination that there was “probably no reason” why [Y] couldn’t have gone with the Applicant. The Court would find that [Y]’s decision to go home with the Respondent that day was spontaneous on [Y]’s part and not pre-planned.
15) In deciding the issue of “reasonable excuse” for [X] in respect of Count 1, the Respondent would also refer to the events of the next day – 21/07/16 – which are referred to below.
The events of 21/07/16:
16) It is common ground that the Respondent did not go to the school at the end of the following school day – 21/07/16 - he left the Applicant to collect the children pursuant to the order. (The Respondent conceded in cross-examination that he was worried; he agreed with the proposition that he was in fact “an emotional wreck”.)
17) That evening while in the Applicant’s care, the children became “hysterical” – to use the expression set out in her solicitor’s letter of 28/07/16 (annexure “M2” to the Applicant’s affidavit). The Applicant simply could not settle them and later that evening she returned them to the Respondent by agreement.
18) The Applicant’s decision to voluntarily return the children was contrary to the orders and effectively a concession that, for the emotional health and wellbeing of the children (but particularly [X]), they needed to be with the Respondent that evening. They represented an example of the orders being varied in circumstances where both parties gave in to the distress of the children.
19) Other relevant context is also provided by the events of the following weekend (23/24 July 2016) when the Applicant had the children pursuant to the orders. Her affidavit (paragraph 19) glosses over the weekend. Yet it is clear from the Respondent’s affidavit (paragraphs 33 – 38) that the children were again highly distressed in the Applicant’s care and that she wasn’t able to settle them. The children had telephoned the Respondent’s voicemail leaving crying/sobbing voice messages on the Saturday night; the Respondent only discovered those messages the next morning at 4.45am and he was so worried that he texted the Applicant at 5.07am – the sequence of text messages being annexure “R2” to the Respondent’s affidavit.
20) It is noteworthy that these events occurred against the backdrop that the Respondent had (successfully) encouraged [X] to go with the Applicant that weekend. The Respondent’s texts confirm that [X] had taken his favourite pencil case and that he “didn’t think [X] would crash again”. He again reiterated his concern for the boys’ mental stability and wellbeing.
21) On the Monday morning immediately following the weekend (25 July 2016), the Applicant – without any prior notice to the Respondent - inexplicably dropped [Y] off to the Respondent’s shop rather than to school. She explained in cross-examination that she did so because [Y] had a “tummy ache” but accepted that she did not arrange a doctor’s appointment for him. Pursuant to the orders, it was “her” time with [Y]. Though she denied it, the most likely inference is that [Y] was emotionally upset about going to school and that the Applicant “gave in” to that upset. It fell to the Respondent to get [Y] to school, which he successfully managed to do. Again the parties were varying the orders in the face of the children’s distress.
22) That evening the Applicant sent the Respondent an email suggesting that [X] see Ms E – a child psychologist. Like the Respondent, the Applicant clearly considered that [X] had genuine mental/emotional wellbeing issues that required prompt professional intervention.
Medical attention for [X] (26/07/16):
23) On Tuesday 26/07/16, the Respondent took [X] to see his GP, Dr F. The Court is referred to paragraphs 39 – 41 of the Respondent’s affidavit. Following that appointment, the Respondent emailed the Applicant, suggesting that [X] be seen by a clinical psychologist or a paediatric psychiatrist.
24) The relevant context here is that the Respondent was actively and genuinely following up on his concerns about [X]’s emotional health and wellbeing given the sudden change in circumstances; he was appropriately communicating with the Applicant about same; he was seeking urgent answers.
Count 2 (27/07/16 - 28/07/16): Not guilty ([X]); Not guilty ([Y])
25) On 27/07/16, the children made their own way from school to the Respondent’s shop. This is the first instance of them “running away”. The Respondent had delivered the children to school that day and did not himself attend at the school at collection time. It is submitted that the Respondent did what was required of him by the orders and relies upon the unreported decision of Judge Altobelli in MacDougall & Hampstead (2013) FCCA 390 a copy of which was handed up at the hearing.
26) The Applicant later attended at the shop; the Respondent tried to get the children to go with her but would not physically force them into the car. The Respondent deposes that the parties called Centacare to arrange some counselling; the Applicant agreed to undertake a particular course; the Applicant then left voluntarily without the children.
27) The Respondent’s case is that the Applicant, in leaving voluntarily, waived the benefit of the orders – as she had done on 21/07/16 when she voluntarily returned the children to the Respondent. Alternatively the orders had again been varied that day by agreement between the parties.
28) Such waiver or variation relieved the Respondent of the obligation of compliance. The Respondent’s conduct in retaining the children did not fall within s.70NAC in such circumstances. Alternatively, in retaining the children the Respondent had a “reasonable excuse” within s.70NAE(1) – noting that the definition of “reasonable excuse” is drafted in an inclusive manner and that the Court is required ex post facto to make a determination of what facts and circumstances fall within that definition in any given case.
29) The next day (28/07/16), the Applicant collected the children from school pursuant to the orders. The Respondent again refers to MacDougall & Hampstead (2013) (supra).
30) On this particular occasion, the orders only came ‘unstuck’ when the Applicant decided to attend upon the Respondent’s workplace with both children, apparently to collect [Y]’s disco clothes. The Respondent was at work at the time, was clearly not expecting the Applicant (or the children) to arrive; importantly the Applicant had not given him the simple courtesy of a prior call or text message to let him know she was coming. There were many different (and better) ways that the Applicant could have handled this situation – [Y] could have been told “no”; alternatively the Applicant could have asked the Respondent to wait out the front of the shop with the clothes ready to give to her; or she may have made other care arrangements for the children while she attended at the shop to get the clothes. When the Applicant did unexpectedly attend at the shop, the children quickly became upset and the Applicant then unsuccessfully tried to use physical force to get the children to go with her – at one point dragging [X] by the collar of his jacket. The Applicant ultimately left without the children. The Respondent submits that the Applicant was the author of the situation such that his conduct in retaining them at that time does not fall within s.70NAC. Alternatively he had a “reasonable excuse” for retaining the children pursuant to s.70NAE(4) given their evident distress at that time. The children simply would not go with the Applicant and her own evidence in cross-examination was that she did not expect the Respondent to “force” them into her car.
31) At the school disco later that evening, the children were again adamant about not going into the Applicant’s care. The Respondent’s case is that, in retaining the children at the school disco, he is not guilty of contravening the orders in that:
a)the parties ultimately agreed to vary the orders, and/or the Applicant waived the benefit of the orders – in that the Applicant chose to go home without the children and the parties agreed that the children should stay with the Respondent that night. Thus the Respondent’s conduct does not fall within s70NAC or is alternatively excused by s70NAE(1).
b)in any event the Respondent would have had a “reasonable excuse” for retaining the children that night pursuant to s.70NAE(4) noting that:
- by that stage it was dark (NB – it was wintertime);
- the Respondent needed to know that the children were going to be “safe” if he left the school without them – it being accepted that the school is located on a busy highway and that by that stage both children were emotional and had already shown the propensity to run away from the Applicant’s care.
The Applicant seeks medical attention for [X] who continues to be upset:
32) Like the Respondent, the Applicant also sought medical attention for [X] in the face of his distress. She took [X] to see her GP, Dr G, on 02/08/16 and afterwards sent an email to the Respondent reporting that in Dr G’s opinion [X] was “a bit anxious and would benefit from developing a relationship with someone he can talk to, namely a paediatrician or a child psychologist…” The Applicant said she had already followed up on those recommendations.
33) Notably, each party had taken [X] to a different GP within a seven (7) day period, apparently to discuss his emotional health and wellbeing.
34) The Applicant’s trip to Melbourne was only a matter of days away and it is submitted that [X] was anxious about that. Both parties and the children were aware of the trip and the Respondent’s case is that he was encouraging [X] to go.
35) On Wednesday 03/08/16, the day after [X]’s attendance upon Dr G, the Respondent deposes that he was encouraging the children to go to the Applicant’s home after school that afternoon and telling the children they would be OK and would have fun in Melbourne. Whatever he did “worked” – as that afternoon the Applicant collected the children from school.
36) That evening however [X] again became upset in the Applicant’s care. He was sobbing uncontrollably which then upset [Y] as well. The children rang the Respondent that evening and the calls went on for three (3) hours – with both children upset and the Applicant saying she wouldn’t give in to them.
37) According to the Applicant’s own evidence (affidavit paragraph 25), she ended up putting both boys to sleep in her bed and [X] cried himself to sleep.
Count 3 (04/08/16): Not guilty ([X]); Not Guilty ([Y])
38) Both children unexpectedly attended at the Respondent’s shop after school that day. The Applicant came to the shop and the Respondent deposes that he encouraged the children to go with the Applicant but would not force them.
39) The Respondent’s case is that he had a “reasonable excuse” to retain both [X] and [Y] that day pursuant to s.70NAE(4) having regard to the children’s emotional state, noting particularly the events of the preceding night.
Count 4 (05/08/16 – 08/08/16): Not guilty ([X])
40) The Applicant attended at school pursuant to the orders; [X] adamantly refused to go with her. The situation degenerated to a physical struggle whereby the Applicant tried to physically force [X] into her car. In doing so she injured his leg. Somewhat surprisingly, the Applicant’s evidence in cross-examination was that:
a)she did not remember hurting [X]’s leg at all;
b)she did not use physical force at all. This was plainly contrary to her own version of events in paragraph 28 of her affidavit. It is submitted that her oral evidence in this respect betrayed a total lack of insight as to how [X] would have viewed the situation.
41) The Respondent was not physically present at the time nor did he participate in the attempted handover in any way. Nor did he have to be there pursuant to the orders: MacDougall & Hampstead (2013) (supra). The evidence is that the Respondent only attended the school later on, after the Principal contacted him to collect [X]. By then the Applicant and [Y] had started their journey to Melbourne without [X].
42) The Respondent’s submission is that:
a)in relation to the events of 05/08/16, it is not reasonably open to the Court to find that the Respondent either intentionally failed to comply with, or made no reasonable attempt to comply with, the order – this being the essential requirement of s.70NAC. This incident only involved the Applicant, the School Principal and [X];
b)the orders were then not capable of being complied with between 05/08/16 and the afternoon of 07/08/16 during which time the Applicant was physically absent from the Region A region. The Respondent’s conduct in retaining [X] during that timeframe either cannot fall within s.70NAC; or alternatively the Applicant’s physical absence gives rise to a “reasonable excuse” within s.70NAE(1).
43) After she returned to the Region A area on 07/08/16, the Applicant contacted the Respondent to arrange to see [X]. The Respondent’s case is that [X] was adamant about not wanting to go – which the Court would readily accept having regard to the events of 05/08/16. (The Applicant’s failed use of force on 05/08/16 was distressing to [X] and made him even more resistant to going to the Applicant thereafter. The Court is respectfully referred to being the Report of Ms H (page 4, 2nd paragraph) being exhibit E in the proceedings – wherein it is plain that this event was a cause of distress for [X] and, in the opinion of Ms H, “further lessened [[X]’s] willingness to go into his mother’s care”.)
44) After the Applicant’s return on 07/08/16, the parties exchanged various text messages in which the Applicant ultimately elected not to see [X] that weekend. In paragraph 31 of her affidavit she says she texted the father: “One more time I will say OK. I will see him on Wednesday. I have noted all the nights.”
45) The Respondent therefore submits that on 07/08/16 the parties varied the orders by agreement and/or that the Applicant waived the benefit of the order so that in either case the Respondent’s conduct in retaining [X] did not fall within s.70NAC. Alternatively in retaining [X] that day he had a “reasonable excuse” by virtue of such matters pursuant to s.70NAE(1) The Respondent also submits that he would in any event have had a “reasonable excuse” for retaining [X] at that time given his concerns for [X]’s emotional health and wellbeing, particularly given the events of 05/08/16 and their impact on [X].
Centacare counselling for [X]:
46) On 09/08/17, the Respondent began taking [X] to see Ms J, a counsellor at Centacare. The record of Centacare attendances in exhibit C in the proceedings. The evidence is that the Respondent alone paid for all of these sessions and it is submitted that he was acting so as to try to ascertain the cause of [X]’s distress. He was not merely “sitting on his hands” while the orders were coming “unstuck”; the Court would accept that he genuinely wanted to find out what was wrong with [X] and why he was so resistant to spending time with the Applicant.
Count 5 (10/08/17 - 11/08/17): Not Guilty ([X])
47) As stated earlier, the Applicant’s failed attempt to physically force [X] into her car on 05/08/16 worsened an already difficult situation.
48) On 10/08/17, the Applicant collected both children from school pursuant to the orders but [X] then walked away from her and started making his own way to the Respondent’s shop. The Applicant blames the Respondent for [X] doing so, as she says the Respondent had earlier ‘suggested’ to [X] on 28/07/16 that he might “run away” in the future. The problem with her interpretation is that it is that [X] had already started “running away” on 27/07/16.
49) The evidence establishes that the Applicant could not control [X] on this occasion and in the meantime [Y] went to the Applicant’s brother’s home (Mr C) – who then delivered [Y] to the Respondent’s shop, telling the Respondent that [X] had run away and no-one knew where he was. The Applicant had not herself telephoned the Respondent to let him know the situation – despite the child safety issues involved. The Respondent rang the Police and tried to call the Applicant. He then went with [Y] to the Applicant’s home.
50) Police attended; [X] got into the Respondent’s car when he arrived and [Y] went with the Applicant.
51) The Respondent submits that he had a “reasonable excuse” within s.70NAE(4) for retaining [X] that day because:
a)[X] was highly stressed and upset, having only just “run away” from the Applicant’s care – a description used by the attending Police officer. The Respondent’s oral evidence was that [X]’s face was red and white like “marbled meat” and the Court would accept that description;
b)It would not have been practicable for the Respondent to try to physically force [X] out of his car and into the care of the Applicant. The risk to [X]’s physical and emotional wellbeing was too great. The Police in fact told the Respondent to take [X] home – Respondent’s affidavit, paragraph 72.
52) On 11/08/17, [X] again made his own way to the Respondent’s shop after school. She had been unable to coax him to go with her after school even when she had brought the new puppy. On her own evidence (paragraph 33) she was not pressing that [X] spend the time with her provided for in the order.
53) Having regard to the situation as it had developed by that time, it is submitted that the Respondent’s conduct in retaining [X] does not fall within s.70NAC in that:
a)the Applicant elected that day not to pursue the time with [X] provided for in the order and/or waived the benefit of the order on that day;
b)she conveyed this clear message both to [X] (Applicant’s affidavit paragraph 33) and in her text to the Respondent that day – “Can you just confirm that [X] got to you ok” (Respondent’s affidavit paragraph 75.
54) In the alternative, such matters give rise to a “reasonable excuse” for the Respondent retaining [X] (s.70NAE(1)).
55) Moreover, the Respondent submits that he had a “reasonable excuse” for retaining [X] within s.70NAE(4) in that it was reasonable for the Respondent to take the position when [X] arrived at his shop that attempting to force him to go to the Applicant would place [X] at unacceptable risk of emotional harm. (It is open to the Court to infer that the Applicant herself knew that it was not realistic or reasonable to expect [X] to visit her on that day in the circumstances.)
Count 6 (17/08/16 – 22/08/16): Not guilty ([X])
56) This Count occupies just one paragraph of the Applicant’s affidavit (paragraph 34). It is respectfully submitted that having regard to the situation as it had developed by that time (most recently the events of 11/08/16), the Respondent’s conduct in retaining [X] does not fall within s.70NAC. The Respondent’s evidence is that the parties had a lengthy discussion about the situation during that timeframe (on 18 August) in which they decided to engage with Centacare before attending upon psychiatrists or psychologists.
57) Ultimately the Respondent’s submission is that, having regard to the surrounding context, the Applicant was electing not to pursue the time with [X] provided for in the orders or was otherwise waiving the benefit of the orders during that timeframe.
58) Alternatively such matters give rise to a “reasonable excuse” for the Respondent retaining [X] (s.70NAE(1) ).
59) Moreover, the Respondent submits that he had a “reasonable excuse” within s.70NAE(4) in that it was reasonable for the Respondent to take the position when [X] arrived at his shop that attempting to force him to go to the Applicant would place [X] at unacceptable risk of emotional harm. (It is open to the Court to infer that the Applicant herself knew that it was not realistic or reasonable to expect [X] to visit her during that timeframe in the circumstances.)
Count 7 (24/08/16 – 25/08/16): Not Guilty ([X])
60) On both of these days, [X] made his own way to the Respondent’s shop after school. The Respondent was not present at the school; the Applicant was present but unable to persuade him to go with her.
61) The Respondent submits that, in not delivering [X] to the Applicant after school on either of those days, he did not contravene the orders. He repeats and relies upon the matters raised in his defence of Count 6.
62) The Applicant in her affidavit includes a partial transcript of a discussion she had with the Respondent on 25/08/16. She highlights various negative things said by the Respondent but it needs to be borne in mind that:
a)these parties did not ordinarily engage in meaningful conversations, their communication being strained and distrustful;
b)the Applicant was acting in a manipulative manner – giving the impression of being there to have a meaningful discussion but in fact evidence-gathering;
c)the Applicant was accusing the Respondent of being at fault for the situation and in no way accepting any responsibility;
d)the Respondent was defending himself and at times became quite heated/emotional and his words need to be looked at in that context;
e)notwithstanding, he did convey the view that [X] “has fallen in a heap” and that he couldn’t force him to go to the Applicant anymore.
Count 8 (31/08/16 – 03/09/16): Not Guilty ([X])
63) On 31/08, 01/09 and 02/09, [X] made his own way to the Respondent’s shop after school. The Respondent was not present at the school; the Applicant was present but unable to persuade him to go with her.
64) Unlike the facts of Counts 6 and 7, the Applicant did positively request the Respondent to deliver [X] to her on these dates. He did not do so and s.70NAC is thus engaged.
65) The Respondent submits that he has a “reasonable excuse” within s.70NAE(4) in retaining [X] during the relevant timeframe due to his concerns for [X]’s health and safety.
Jamieson & Cotter [2017] FamCA 590:
66) When considering the issue of “reasonable excuse” in relation to [X]’s anxiety about spending time with the Applicant, the Court may be assisted by the unreported decision of Thornton J in Jamieson & Cotter [2017] FamCA 590. In that case the Court accepted that the mother had a “reasonable excuse” in not providing the father with make-up time in respect of an 11 year old child who was clearly very anxious about spending time with the father. The Respondent would respectfully refer to it as a comparative and illustrative case.
Questions of penalty:
67) There are no previous breaches of orders alleged against the Respondent.
68) Notwithstanding, the Applicant seeks a “bond” by way of penalty. Such a penalty is only available if the Court make a finding that the Respondent’s actions show that he has “behaved in a way that shows a “serious disregard” of his or her obligations” under the order.
69) It is respectfully submitted that the Court would not make such a finding on the facts of this case.
70) In that respect the Respondent repeats and relies upon the matters set out earlier by way of defence. Depending on the Court’s ultimate findings, such matters remain potentially relevant to penalty.
71) The Respondent otherwise refers to:
a)his prior lengthy history of compliance with the orders;
b)the fact that, in [Y]’s case, his non-attendances were only of a brief, transitory nature and he has since resumed his visits with the Applicant pursuant to the orders;
c)the fact that when the children first became resistant to seeing the Applicant, the Respondent actively took urgent steps to investigate and address the issues, including taking [X] to a GP and (at his own expense) to a counsellor at Centacare;
d)the Respondent’s genuine concern about the mental health and wellbeing of the children, particularly [X];
e)the fact that the Applicant’s own actions at times contributed to the difficult dynamic. The Court is specifically referred to the report of Ms H (exhibit C). Examples are: her attempt to physically “force” [X] to go with her on 28/07/16 and 05/08/17 (the latter event clearly having a significant impact on [X]); her own displays of anger and frustration with [X]/the situation; her lack of communication with the Respondent.
f)the fact that [X]’s resistance to attend upon the Applicant is likely to be a complex problem to which the Applicant contributes, and that it has thus far been largely resistant to even expert intervention.
72) The Court is also referred to the unreported decision of the Full Court in Gravis & Major [2010] FamCAFC 239 in which the Court discouraged the Court from considering the contraventions in a global manner when determining the issue of whether a respondent has shown “serious disregard” of orders – see paragraph 161 of the judgment.
73) It is respectfully submitted that, looked at objectively, none of the individual contraventions involve “serious disregard” of the orders.
74) It is respectfully submitted that the Court would, at most, make an order for the Respondent to participate in a prescribed parenting programme. There may be benefit in the Applicant attending upon such a programme herself given the Applicant’s own difficulties in communicating with the Respondent. One poignant recent example was that at the hearing on 27/11/17 she admitted to having made her 2017 Christmas holiday plans over a year ago yet had not told the Respondent those plans until just days earlier in the context of negotiating consent orders.
Costs:
75) It is not possible for the Respondent to make any meaningful submissions on costs in the absence of findings. The Respondent would however oppose the making of costs orders and would seek to file written submissions within seven (7) days of judgment being delivered.
The Respondent maintains that the contravention proceedings were an expensive exercise that he could ill-afford and that they did not need to be pursued by the Applicant in circumstances where a final hearing date had been allocated and at which all issues could have been resolved once and for all. The Respondent repeats and relies upon his earlier written submissions in that respect.
Written submissions in reply from the Applicant in relation to the alleged contraventions
Written submissions in Reply were filed on behalf of the Applicant on 9th February 2018, and were as follows:
Applicant’s Submissions in Reply
1) Submissions on behalf of the Respondent contend that the orders broke down. This characterisation masks the Respondent’s role – he failed to comply with and in other cases made no reasonable attempt to comply with the orders.
2) It is only in final written submissions (which followed the Applicant’s submissions) that the Respondent conceded a breach of order 1 without reasonable excuse as regards [Y].
3) It is only in the final written submissions that any concession is made that the orders had been breached (eg [64]).
4) The evidence at this date establishes no reasonable excuse concerning [X], no medical evidence, no psychological evidence, no issue about the mother’s care.
5) What began as [X]’s distress at attending school escalated in circumstances where the father failed to take reasonable steps to ensure [X] spent time with his mother (and brother) as the Court orders obliged him.
6) Neither at the time the contraventions occurred nor at the time of trial was there any evidence that would support acquiescence by the mother. There was nothing done voluntarily by the mother in circumstances where she was seeking the assistance from the father and the only assistance offered, was the return of the child.
7) Any waiver of the rights bestowed by the orders must be clear and unequivocal.
Count 1
8) The submissions focus on events after the date of count 1 (in some detail) they cannot ground any defence.
Count 2
9) The submissions overstate the evidence, eg the children plural (ie both of them) could not be characterised as “adamant” about not going into the mother’s care as the submissions contend at [31].
10) The Respondent was not required to force either child to do anything [38] he was required to take reasonable steps to comply. He did not.
Count 4
11) The mother’s evidence was that she put her hands on her son’s shoulders to guide him to the car. This falls far short of physical force. Her conduct cannot be described as frightening or violent. It is physical only in the sense that she was touching her young son.
Count 5
12) The submission that the evidence establishes that the Applicant cannot control [X] is ironic – since it is apparent that the Respondent lacks any effective control over [X] since he contends he is unable to ensure [X]’s attendance in compliance with court orders.
13) The father’s approach allowed the situation to deteriorate. The father’s reasonable excuse cannot be reliant upon the increasing distress of the child absent any objective basis for such distress in the mother’s household.
Ground 7
14) The submissions made in an effort to excuse or explain the father’s attitude during his discussion with the mother on 25 August 2016 are not grounded in the evidence. It may be fair to describe the parties’ communication as strained and distrustful but that does not mean that “they did not ordinarily engage in meaningful conversations” [62(a)]. The mere fact that the mother recorded their conversation does not mean her conduct was manipulative.
15) The recorded conversation gives the Court the best window into why the orders are not working – because the father does not respect them or the mother.
Penalty
16) Contrary to Respondent’s contention at [68], the Court may order a bond under either subdivision E or subdivision F.
The key to penalty should be a consideration as to what order will best ensure compliance with the Court’s orders.
Consideration and disposition
Summarised, the reasons for the adverse findings against the Father were as follows. It should be borne in mind that the oral reasons were given against the backdrop of a final hearing to be held later that same year.
While I need, obviously, to deal with the current Application, as just observed, because of the somewhat imminent substantive hearing, as well as the therapeutic intervention that is to happen even sooner, I propose being as relatively discreet as I can in order not to risk influencing in any relevant respect either of the events to which I have referred. Such is (and was) often the nature of dealing with this matter.[1] For example, the contravention hearing, and equally the provision of written reasons, were delayed (as sought orally by the parties) so as not to risk jeopardising alternative means to resolving the dispute (e.g. via intensive family therapy, which took place over a very significant period of time), and so as not to risk any other Applications being filed (e.g. recusal) which would likely affect any hearing date.
[1] The Court has very recently been advised that the primary parenting Application has been resolved.
Formally, in relation to the 8 contraventions alleged, the Father, through his Counsel, pleaded that he did not relevantly contravene the Orders made by Judge Harman on 10th April 2014. However, in the event that the Court found the Orders to have been contravened, the Father said that he had a reasonable excuse in relation to each alleged contravention. Somewhat generally put, his “excuse” was that [X] (and occasionally [Y]) did not want to spend time with his Mother, and that the Father did not wish to push (or pressure) [X] (and [Y]) and thereby risk alienating him ([X]) further from her.
I do not propose canvassing all the evidence. It followed a similar course in relation to each count. The Father, in my view, essentially sought to explain that [X] did not wish to see or spend time with his Mother. However, he was unable satisfactorily to explain how or why this was so. Moreover, the factual circumstances that surround each contravention are not substantially in dispute. They are set out in the affidavits of each party, as well as in significant detail in the written submissions, particularly those of the Mother. The issue to be determined really surrounds the intention and effect of those circumstances and the actions of each party in each instance.
The Exhibits A - F, except the Report of Ms B, were referred to in the course of the contravention hearing. Those Exhibits include a s.11F Memorandum from Ms K, a collection of emails between the parties between July and August 2016, contact records from Centacare for dates commencing on 9th August 2016, and a Report from another expert (Ms H), dated 10th October 2017.
I pause here to observe that both the current and ongoing circumstances for the parents and both boys have been, and in my view remain, untenable. By this I simply mean the dreadful situation where [X] was not, and is not, spending regular time with his Mother in accordance with the 2014 consent Orders. The situation is nothing less than ghastly. I cannot think how intolerable it must be for all concerned. That said, part of the appalling nature of the matter is that, paradoxically (a) these are basically good parents, and (b) basically good children, but (c) still for reasonably inexplicable reasons, one child has taken an adverse mind-set against his Mother. The Father is either powerless to, or otherwise incapable of, changing [X]’s mind-set. The flow-on effects and longer-term risks for poor younger [Y] are demonstrably veering in a similar, dire direction.
All this said, because of repeated and ongoing alleged breaches of Orders, such delicate and precarious circumstances in this family must now be dealt with using the very blunt instrument of the law. It is no defence or mitigating circumstance to any party, or even to the Court, that the law is such an uncompromising, and necessarily at times, forceful instrument. Its bluntness, which at times borders on the brutal, is simply a function of it being used usually in times, or circumstances, of last resort. Such is the nature of the matters here; it is, in my view, very much a case of last resort. Nothing else has brought basic order and stability for these parties or their children.
All of this is to say that I am acutely conscious of the dangers and risks for all in the constant, but necessary intervention of the Court in this case. It is always better for resolution by other means, but those other means have not borne the necessary fruit here. In almost every respect, to use the vernacular, [X] has been driving the “parenting bus” for quite some time, and every effort to change this, or even to get it safely back on the road, has failed. Hence my regular reference to the use of the Court, and Applications of the kind currently before the Court, being one of last resort.
Moreover, the Court must surely keep steadfastly in mind that [X] has recently turned 11. At the time of the contraventions alleged he was 9 years old, and [Y] 7 years old. For reasons generally explored in the Report of Ms B (Exhibit G), [X] has chosen to run himself ragged, and his parents and brother likewise. It should not, and cannot, be allowed to continue. He has been allowed to decide matters, without any relevant sanction imposed by his Father, regarding whether he will spend time with his Mother. Indeed, these circumstances have evolved, if not increased, over time, I stress without any risk of sanction or other usual or proper parenting strategy. [X] has succeeded with his ploy using the unremarkable tool (to use a somewhat pejorative term, but which is not intended to be so) of “emotional blackmail”. Such is a common tool that has been used by human beings for millennia, and notably by children for a similar period. The response by the Father to [X] has been misguidedly supine. He has feared troubling [X] further, and as a result, [X] “rules the roost” without fear of anything being done by his Father. The children’s so-called “wishes” or view rule over all else, including common sense. This is in circumstances where there has been no underlying pathology identified by experts.
The various descriptions of [X] by the Father in his Affidavit(s) as, for example, a “young man”, are inapt. They tend to distort reality for a 9 year old, and equally so for an 11 year old. They confer upon [X] an inappropriate authority, provenance and, importantly, weight of decision-making that a young person of his age, then and now, should not have to bear. However, it seems to me that the Father and [X] in particular (and to a lesser degree [Y]) may be ignorant of the risks that attend their respective attitudes and conduct.
Put shortly, I accept the Mother’s submissions. I adopt them as part of the Court’s reasons in relation to each contravention pleaded. It necessarily follows that I do not accept the submissions, and the evidence that supports them, on the Father’s behalf that a reasonable excuse has properly been made out. Of critical importance is that, in his submissions, the Father regularly contended that he would not, or could not, out of concern for [X], force him (or [Y]) to comply with Orders to spend time with the Mother. He said that, under the Orders, he was not required to force either child to do anything. This submission was misconceived. He was required to take reasonable steps to comply with the Orders. In my view, he did not do so.
Formally, I find that the contraventions are made out, and that the Father does not have a reasonable excuse as defined in s.70NAE of the Family Law Act 1975 (“the Act”). Moreover, the Father’s comment (noted at par.43 of the Mother’s primary submissions) is extremely concerning with respect to his attitude towards the Court and its Orders, as well as towards the Mother. To give the Father the benefit of the doubt, it may be that the comments were made out of frustration and other things.
It follows from the Court’s findings that the issue next to be determined is the appropriate penalty.
Considerations regarding penalty
For the Mother’s part, she seeks that the matter be dealt with pursuant to s.70NEA of the Act, which section relates to contravention(s) without reasonable excuse but a less serious contravention. I agree that this is the relevant section applicable to the facts and circumstances of this matter.
I could readily accept that the terms of s.70NEA(4) apply, whereby the Father’s conduct should relevantly be treated as not being covered by this section because of the gravity (and frequency) of the breach. However, in the present circumstances, I propose dealing with the question of penalty by reference to ss.70NEB and 70NEC. The latter provision deals with “bonds.” The former deals with, among other things, “costs.”
In my view, the gravity and the extended period covered by the contraventions, together with the escalating severity of them and the inevitable negative impact (which is ongoing), warrant the imposition of proper sanction. Accordingly, in my view, the Father should enter a bond in the sum of $5000.00. The Father will be required to attend upon the Registry within 28 days to enter into the Bond and to have it explained to him by the Registrar.
In relation to costs, although the Mother’s submissions refer to an award of costs, like the Father, both parties sought to make further submissions once the Court’s determination in relation to liability was finalised. Accordingly, having regard to the breadth of the submissions thus far and without seeking or wanting to put the parties to undue further expense, the parties were directed to file any further submissions, of no more than 2 pages, in relation to costs within 7 days.
Written submissions from the Applicant in relation to costs
The Applicant’s written submissions regarding costs, filed 26th April 2018, were as follows:
1. The Court found the Respondent father guilty in respect of each of the eight alleged contraventions.
2. The Court elected to deal with the proceedings pursuant to section 70NEB of the Family Law Act 1975 (Cth) (“the Act”). Section 70NEB(1)(f) provides that the Court may make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division.
3. The power to order costs in a contravention proceedings is separate from the costs powers contained in section 117 of the Act.
4. The Court should also take into consideration the manner in which the Respondent to the proceedings elected to conduct the proceedings. The Respondent to the proceedings had the opportunity to indicate at the outset of the proceedings that he did not contest elements of the contraventions with which he was charged. He elected to have those who represented him make no concession until such time as closing final written submissions. That had the effect of prolonging the proceedings so that they were conducted over two days rather than over one day. It is relevant to take into account the conduct of the proceedings when considering where costs should lie.
5. Whilst the power to order costs granted by section 70NEB stands separate from the costs powers in section 117 of the Act, the considerations in section 117 remain relevant.
6. It is relevant to consider that the bringing of a contravention application by the mother was occasioned by the father’s failure to comply with orders of this Court. Such conduct is relevant when considering the making of a costs order: section 117(2A)(d).
7. Similarly it is relevant to consider the provisions of section 117(2A)(e). In that regard the father has been wholly unsuccessful in the proceedings.
8. There are no other relevant section 117 matters.
9. There are clearly circumstances which warrant a departure from a general rule that each party should bear his or her own costs made out in the factual circumstances of this matter.
10. The costs should be paid on a lawyer and client basis as opposed to party/party: see Fennessy v Gregorian (2009) FLC 93-399 [62] – [64]. The Court would allow for counsel’s fees (particularly as both parties engaged counsel).
Written submissions from the Respondent in relation to costs
The Respondent Father advised the Court via an email dated 30th May 2018 that, as he had been unsuccessful obtaining legal assistance, he would not file any written submissions.
Written submissions from the Independent Children’s Lawyer in relation to costs
The Independent Children’s Lawyer advised the Court via an email dated 7th May 2018 that she did not seek to make any submissions in relation to the Applicant’s Application for costs.
Outline of principle
The statutory and jurisprudential considerations in relation to making (or not making) an Order for costs are well known. Although well known, it is sufficient to note the following from the Full Court decision in Stephens v Stephens.[2] Beginning at [62], the Full Court said (emphasis added):
[2] Stephens v Stephens (2011) 44 Fam LR 117.
[62] Section 117(1) of the Act provides: “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”
[63] Section 117(2) of the Act provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub-ss (2A), (4) and (5), and the applicable rules, make such order as to costs, whether by way of interlocutory order or otherwise, as it considers just.
[64] Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (Kay, Warnick and Boland JJ), referring to s 117(2A), said at 130 [41] :
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
[65] As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311, in joint reasons, Stephen, Mason, Aickin and Wilson JJ said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
[66] As to the nature of the hearing of an application pursuant to s 117 of the Act in Penfold their Honours said at 315-16:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
[67] We also observe that in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
In the same case, the Full Court commented summarily on the award of indemnity costs, thus at [73]:
An order for costs may be made on an indemnity basis, subject to a judicial determination capable of being made that there ought to be a departure from the usual basis that costs be payable on the party and party basis. For a discussion of the jurisdiction to order indemnity costs and its exercise see Colgate Palmolive Co and Another v Cussons Pty Ltd (1993) 118 ALR 248 per Sheppard J at 256-257 and NMFM Property Pty Ltd and Others v Citibank Ltd (No 2) (Court’s “NMFM” Judgment No 11) (2001) 109 FCR 77 per Lindgren J at [53] to [90].
The decision of Sheppard J in Colgate-Palmolive Co v Cussons Pty Ltd (noted by the Full Court) is a regularly cited authority for relevant principle regarding the awarding of indemnity costs.[3] In that judgment, his Honour outlined the following principles, at pp.232 – 234, which I set out in full (emphasis added):
[3] Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.
It seems to me that the following principles or guidelines can be distilled out of the authorities to which I have referred:-
1. The problem arises in adversary litigation, i.e. litigation
as between parties at arm's length. Different considerations
apply where parties may be found to be entitled to the payment of their costs out of a fund or assets being administered by or under the control of a trustee, liquidator, receiver or person in a like position, eg. a government agency or statutory authority.
2. The ordinary rule is that, where the Court orders the costs
of one party to litigation to be paid by another party, the
order is for payment of those costs on the party and party
basis. In this Court the provisions of Order 62, rules 12 and
19, and the Second Schedule to the Rules will apply to the
taxation. In many cases the result will be that the amount
recovered by the successful party under the Order will fall
short of (in many cases well short of) a complete indemnity.
3. This has been the settled practice for centuries in England. It is a practice which is entrenched in Australia. Either legislation (perhaps in the form of an amendment to rules of Court) or a decision of an intermediate court of appeal or of the High Court would be required to alter it. No doubt any consideration of whether there should be any change in the practice would require the resolution of the competing considerations mentioned by Devlin LJ in Berry v. British Transport Commission and Handley JA in Cachia v. Hanes on the one hand and by Rogers J in Qantas on the other. The relevant passages from the respective judgments have been earlier referred to.
4. In consequence of the settled practice which exists, the
Court ought not usually make an order for the payment of costs on some basis other than the party and party basis. The circumstances of the case must be such as to warrant the Court in departing from the usual course. That has been the view of all judges dealing with applications for payment of costs on the indemnity or some other basis whether here or in England. The tests have been variously put. The Court of Appeal in Andrews v. Barnes (39 Ch D at 141) said the Court had a general and discretionary power to award costs as between solicitor and client "as and when the justice of the case might so require." Woodward J in Fountain Selected Meats appears to have adopted what was said by Brandon LJ (as he was) in Preston v. Preston ((1982) 1 All ER at 58) namely, there should be some special or unusual feature in the case to justify the Court in departing from the ordinary practice. Most judges dealing with the problem have resolved the particular case before them by dealing with the circumstances of that case and finding in it the presence or absence of factors which would be capable, if they existed, of warranting a departure from the usual rule. But as French J said (at 8) in Tetijo, "The categories in which the discretion may be exercised are not closed". Davies J expressed (at 6) similar views in Ragata.
5. Notwithstanding the fact that that is so, it is useful to
note some of the circumstances which have been thought to
warrant the exercise of the discretion. I instance the making
of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by
Woodward J in Fountain and also by Gummow J in Thors v. Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v. Hutchinson (1987) 10 NSWLR 525, Maitland Hospital v. Fisher (No. 2) (1992) 27 NSWLR 721at 724 (Court of Appeal), Crisp v. Keng (Supreme Court of New South Wales, 27 September 1993, unreported, Court of Appeal)and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.6. It remains to say that the existence of particular facts and circumstances capable of warranting the making of an order for payment of costs, for instance, on the indemnity basis, does not mean that judges are necessarily obliged to exercise their discretion to make such an order. The costs are always in the discretion of the trial judge. Provided that discretion is exercised having regard to the applicable principles and the particular circumstances of the instant case its exercise will not be found to have miscarried unless it appears that the order which has been made involves a manifest error or injustice.
Consideration and disposition in relation to costs
In the light of (a) the principles to which I have referred, (b) the adverse findings made by the Court against the Father (for the reasons given, including the Court accepting the Mother’s submissions regarding liability), and (c) the submissions of the parties regarding costs, I note very briefly the following.
First, in addition to accepting generally the Mother’s submissions in relation to costs, I note in particular the following comment from those submissions (par.4):
The Court should also take into consideration the manner in which the Respondent to the proceedings elected to conduct the proceedings. The Respondent to the proceedings had the opportunity to indicate at the outset of the proceedings that he did not contest elements of the contraventions with which he was charged. He elected to have those who represented him make no concession until such time as closing final written submissions. That had the effect of prolonging the proceedings so that they were conducted over two days rather than over one day. It is relevant to take into account the conduct of the proceedings when considering where costs should lie.
Secondly, it is also important, in my view, to recall par.5 from the Mother’s submissions in Reply regarding liability, thus:
What began as [X]’s distress at attending school escalated in circumstances where the father failed to take reasonable steps to ensure [X] spent time with his mother (and brother) as the Court orders obliged him.
Although there are invariably many shades of grey, and all manner of colour (to speak metaphorically) in the lives of families, much of this ongoing contest as set out in the parties’ material, and in the detailed report of Ms B, which refers to basic parenting not properly or reasonably pursued. As stated earlier, [X] has “ruled the roost”. His Father has allowed him to do so with impunity. While understandable to a point, the Father’s fear of forcing [X] to do what he should rather than feebly allowing [X] to do simply what he wants, or feels like, is both a poor parenting model and a poor educator for life more generally. As far as I am aware, there has never been any specific or underlying psychological or physical pathology or cause for the belligerent and otherwise inexplicable dislike and hostility of [X] towards his Mother.
In all of the circumstances, and having regard to the outline of principle in Stephens, within 60 days of the date of these Orders, the Father is to pay costs to the Mother in the sum of $1000.00
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 6 August 2019
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Remedies
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Judicial Review
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Procedural Fairness
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