Mandal & Nayak (No 2)
[2023] FedCFamC1F 933
•3 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mandal & Nayak (No 2) [2023] FedCFamC1F 933
File number(s): BRC 14336 of 2020 Judgment of: JARRETT J Date of judgment: 3 November 2023 Catchwords: FAMILY LAW – CONTRAVENTION – Where the respondent admitted the contraventions but pled reasonable excuse – Where the respondent took the child to the applicant’s residence in accordance with orders but the child continually absconded – Where evidence established the child’s behaviour was outside the respondent’s control – Whether the Court should accept the respondent’s pleas where his own evidence is consistent with denying the contraventions – Reasonable excused proved Legislation: Family Law Act 1975 (Cth) Division 13A, Part VII, ss 60CC, 70NAC, 70NEB, 70NFB
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.69
Cases cited: Peake & Cousins (No. 2) [2018] FamCA 1056,
Reid & Secco [2017] FamCA 1140
Saldo and Tindall [2013] FamCA 951, [22], [28] and [29]
The Queen v GV [2006] QCA 394, [37]
Tindall & Saldo [2015] FamCAFC 1, [58]
Division: Division 1 First Instance Number of paragraphs: 32 Date of hearing: 2 August 2023 Place: Brisbane Counsel for the applicant: Ms Gajic-Pavlica Solicitors for the applicant: Norris Law Counsel for the respondent: Mr Leneham Solicitors for the respondent: Sharma Lawyers ORDERS
BRC 14336 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MANDAL
Applicant
AND: MR NAYAK
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
3 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The contravention application filed on 6 February, 2023 be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
By her application for contravention filed on 6 February, 2023 the applicant alleges that the respondent has contravened, without reasonable excuse, certain provisions of final orders I pronounced on 4 February, 2022 concerning the parenting arrangements for one of the parties’ three children, X. X is 14, nearly 15.
The contravention application contains about 60 distinct counts, but they mainly fall into two categories. All involve an allegation that X spent no time with the applicant when she was otherwise required by the orders to do so. Recognising these matters, on 9 June, 2023 a Registrar directed that the applicant confine her application to 15 distinct counts. She has identified and pressed 14 distinct counts in her affidavit filed on 16 June, 2023.
The respondent admits each of the contraventions but says that he had a reasonable excuse for contravening the orders. The applicant argues that the evidence does not establish a reasonable excuse for contravening the orders. She seeks various orders by way of sanction.
Although not generally necessary to set out the statutory framework against which this application must be decided given the respondent’s attitude to the counts alleged against him, it is useful to do so in this case.
Division 13A, Part VII of the Family Law Act 1975 (Cth) invests the court with power to make a range of orders upon an application for contravention. The orders available to the court depend upon a number of matters, but for present purposes, it is relevant to observe that, shorn of matters not immediately relevant to this case, the power to make orders pursuant to ss 70NEB or 70NFB is only engaged where two conditions are fulfilled, namely:
(a)the respondent has committed a contravention of an order; and
(b)the respondent does not prove that he or she had a reasonable excuse for that contravention.
(see ss 70NEA(1) and 70NFA(1) respectively).
Relevantly, the meaning of the word contravened, in the phrase contravened an order is defined in s 70NAC of the Act as follows:
70NAC Meaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order;
With those basic propositions in mind, I turn to the application before me.
THE CONTRAVENTIONS
The contravention application alleges breaches of two aspects of the orders made on 4 February, 2022. Relevantly, orders 3 and 4 of those orders provide:
3.The child, [X] born […] 2008 shall live between the applicant and the respondent in a weekly arrangement commencing on a Sunday in each week during school terms as follows:
(a)With the applicant, from 9am Sunday to before school Thursday (or if Thursday is not a school day to 5pm); and
(b)With the respondent, from after school Thursday (or if not a school day from 5pm) to 9am on Sunday.
4. During school holiday periods, the child [X] live equally between the parents with the applicant for the first half of all school holiday periods and the respondent for the second half and for the purposes of this order, school holidays commence at the conclusion of the last day of school term and conclude the morning of the first day of the new school term.
The first nine contraventions (9 October – 13 November, 2022) and the last particularised contravention (29 January, 2023) concern order 3(a). The applicant alleges that on 9 October, 2022 (and for the rest of that school term until 7 December, 2022) the respondent “did not provide” the parties’ daughter X to her in accordance with the order. The respondent admits these contraventions.
The next four counts allege that in contravention of order 4 the respondent did not cause X to spend the first half of the school holidays with her for the 2022 Christmas school holiday. She alleges contraventions on 16, 22, 23 and 25 December, 2022. The respondent admits these contraventions, too. However, I reject all but one of his admissions to these contraventions. There are no separate orders that deal with particular arrangements for Christmas Day between X and her parents. It is impossible to identify the order or orders to which the contraventions that are alleged to have occurred on 22, 23 and 25 December relate although they form part of the period of time during which X was to be in the applicant’s care. I accept his admission with respect to the first of these counts but reject the balance because they are admissions that he contravened an order that seemingly does not exist.
The parties agree that since 4 October, 2022 X has not spent any time with her mother.
THE UNDERLYING FACTS
The applicant’s evidence to prove the contraventions, whilst contained in two lengthy affidavits, is very short. She alleges that the respondent breached “the order on 09.10.22 by not providing [X] during school term 4” (affidavit filed on 6 February, 2023 at paragraph 8 and affidavit filed on 16 June, 2023 at paragraph 8) and “Respondent continued to withhold [X] on every occasion for the rest of the school term till 07.12.22” (affidavit filed on 6 February, 2023 at paragraph 9 and affidavit filed on 16 June, 2023 at paragraph 9). As to the holiday times contraventions, she deposes in her first affidavit at paragraph 11 (with a similar deposition in the second affidavit) “Respondent held [X] in his care for whole of the school holiday from 09.12.22 - 30.12.22.”
The applicant gave no particular evidence of any particular occasion (other than those to which I have already referred) where X was to come into her care when she did not. She does not describe the respondent’s actions or inaction, although she argues that he did not do all that he could do to ensure X lived with her as required by the orders. Nonetheless, it is not controversial that X has not spent any time with the applicant in accordance with the orders since 4 October, 2022.
The respondent says that X does not wish to spend any time with her mother and that given her age and despite his encouragement, she refuses to do so. He says that X was spending time with her mother pursuant to the orders until 4 October, 2022. At that point X became aware that her mother would not sign a passport application for X. X intended travel with her father to Country D at the end of 2022 during the school holidays. Since 4 October, 2022 however, X’s relationship with her mother has soured. The evidence in the applicant’s affidavit and in particular, the text messages from X, demonstrate that is so.
According to the respondent’s evidence X lives “between my house and her eldest brother [Mr B’s] rental property”. He says that he has tried to “formalise [X’s] care arrangement” by engaging in mediation but the applicant has refused to do so. His reference to formalising X’s care arrangement I take to be a reference to X living with him (or perhaps between his and Mr B’s house) and spending no time with her mother. It is little wonder, given the orders of the court made in February, 2022 that the applicant has refused to participate in such a process.
The respondent argues that he has not failed to make X available to the applicant but rather when he has done so, X has made her own decision to abscond from the applicant’s care. In that respect, it seems uncontroversial that the applicant has been powerless to retain X in her care. The evidence shows that the applicant has attempted to collect X at the conclusion of the school day when X is to be living with the applicant, but she has been unsuccessful in doing so. Indeed, as the respondent points out, once X is supposed to be in the applicant’s care, it is the applicant’s responsibility to collect her from school on Mondays, Tuesdays and Wednesdays. She has been unable to convince X to leave with her after school, or if she has done so, to remain in her care overnight.
The respondent’s case is that X’s relationship with her mother has been damaged by the applicant’s actions towards X generally; not just her refusal to sign X’s passport application, but by treatment X has endured from the applicant for some time. These are matters that I considered in my reasons for judgment when I made the final orders in February, 2022.
A consideration of these largely uncontroversial facts leads to an issue about which neither party has made submissions, namely, should the respondent’s admissions of each of the contraventions be accepted at all? Bearing in mind the definition of contravened for the purposes of Division 13A, Part VII of the Act, do the facts that he now relies upon to establish that he had a reasonable excuse for contravening the orders, in fact show that no contraventions have been committed?
Here, neither the evidence of the applicant nor the respondent establishes that the respondent intentionally failed to comply with the relevant orders. It seems to be common ground that the applicant has delivered X to the applicant’s home when required by the orders (albeit parking some 100 meters away so that he does not breach an extant protection order). It also seems to be common ground that X presents herself to the applicant’s front door on those occasions, announces her presence and her intention to leave and then absconds. The respondent says he does not know where X goes – sometimes to friend’s homes and sometimes to her older brother Mr B’s home. He has had calls from youth organisations reporting that X has contacted them seeking emergency accommodation because she does not wish to stay with the applicant and she cannot return to the respondent’s residence. Further, as I have already recorded, since October, 2022 when X has attended school during the time when she is supposed to be in her mother’s care, she will not leave school with her mother, but goes elsewhere.
Against that background, it is difficult to see how it is that the respondent has intentionally failed to comply with the relevant orders. Similarly, it difficult to see how it can be said that he has not made reasonable attempts to comply with the orders. To the extent that the applicant argues that the respondent does not encourage X to remain in her care, there is no direct evidence of anything the respondent does to encourage X to run away from the applicant’s home. There is evidence that establishes that the applicant cannot retain X in her care or prevent her from running away when she wishes to do so.
Nonetheless, the respondent has admitted that he contravened the orders.
Applications for contravention are civil applications and the civil standard of proof generally applies. However, various aspects of practice and procedure on such applications borrow from the practice and procedure in criminal courts: see for example the mode of conduct of such proceedings laid down in r 1.69 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021; the striking out of counts in an application for duplicity (e.g., Peake & Cousins (No. 2) [2018] FamCA 1056, Reid & Secco [2017] FamCA 1140) and the application of criminal law sentencing principles when determining sanction: Saldo and Tindall [2013] FamCA 951 at [22], [28] and [29] referred to without adverse comment in Tindall & Saldo [2015] FamCAFC 1 at [58].
The situation with which I am faced here is vaguely analogous with a situation that arises from time to time in the criminal law when, despite a plea of guilty to an offence or offences proffered against them, a defendant gives evidence upon a sentencing hearing, or other circumstances arise prior to the imposition of a sentence, that calls the plea into doubt. In those circumstances, it may be rejected and treated as a plea of not guilty. The Queensland Court of Appeal put it this way in The Queen v GV [2006] QCA 394 at [37]:
Those cases and others establish the proposition repeated in the annotations to section 598 of the Criminal Code that a plea of guilty which is not in plain, unambiguous and unmistakable terms must be treated as a plea of not guilty, and further, that where on a plea of guilty a defendant so qualifies the plea by giving an explanation in relation to the matter with which he has been charged, he should be taken to be pleading not guilty. The Court may reject the plea of guilty at any time prior to the passing of sentence.
Whilst I harbour some doubt that the respondent has in fact contravened the orders as he admits, I do not propose to reject those admissions. The respondent was represented by counsel and no application to withdraw his admissions has been made.
A REASONABLE EXCUSE?
The facts I have set out above, in my view, discharge the burden upon the respondent to demonstrate on the balance of probabilities that he had a reasonable excuse for contravening the orders.
It is uncontroversial that the respondent has taken X to the applicant’s home (albeit also observing the terms of the protection order against him) but X has not co-operated. X absconds from the applicant’s care and lives with her brother, not the respondent. The respondent has locked the doors to his home and X has on occasions (although this seems to predate the alleged contraventions) had resort to youth emergency accommodation services. The applicant has not been able to retain X in her care.
Whilst the evidence establishes that X did spend time with the applicant from the making of the primary order in February, 2022 it also establishes that X’s adherence to the orders was fragile. The parties agree that whatever was occurring after the making of the February, 2022 orders broke down after the applicant refused to sign X’s passport application.
This is not a case where the respondent says that he has breached the orders so as to protect X’s health or safety, or his own. Questions about the length of time the orders have been contravened and whether a reasonable time to approach the court for an order to suspend or vary the primary orders so as to protect X’s health or safety or his own, do not arise.
The evidence does not permit of a finding that the respondent has counselled X to act in the way that she does. That is not to say that he has not, but there is no direct evidence that he has done so. Nor are there any facts established from which such an inference might be reasonably drawn. Exhibited to the respondent’s affidavit, and marked as Exhibit 3 in the proceedings, is a video and audio recording of X presenting to the applicant’s front door on an occasion prior to the contraventions in this case, but which the respondent says is representative of the way in which X behaves. The recoding was made by X. In it, she says that she is going to her friend’s house and then to her brother’s home. She says that she is not staying with the applicant nor going back to the respondent’s home. This evidence is consistent with the respondent’s case and inconsistent with an inference that the respondent is not doing what he can to have X stay with the applicant.
I find that in respect of each of the contraventions admitted by the respondent he has established a reasonable excuse for those contraventions.
In his affidavit, the respondent seeks an order that discharges the February, 2022 order. I decline to make that order on the basis that the evidence before me is incomplete and insufficient to embark upon a proper consideration of the matters identified by s 60CC of the Family Law Act 1975 (Cth).
The contravention application filed on 6 February, 2023 is dismissed.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 3 November 2023
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