Manolis & Manolis
[2022] FedCFamC1F 443
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Manolis & Manolis [2022] FedCFamC1F 443
File number(s): ADC 237 of 2018 Judgment of: RIETHMULLER J Date of judgment: 29 April 2022 Catchwords: FAMILY LAW – CHILDREN – Contravention – Enforcement of orders relating to children – Whether the mother had reasonable excuse for not returning the children – Where the mother failed to deliver the children to changeover in accordance with final orders – Where the mother claimed the children refused to spend time with the father – Where Court Child Expert of the view that the children became too distressed to spend time with the father – Application dismissed Legislation: Family Law Act 1975 (Cth) ss 70NAC, 70NAE Cases cited: TVT & TLM [2006] FMCAfam 20 Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 28-29 April 2022 Place: Adelaide Solicitor for the Applicant: O’Dea Lawyers Solicitor for the Respondent: Litigant in person ORDERS
ADC 237 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MANOLIS
Applicant
AND: MS MANOLIS
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
29 APRIL 2022
THE COURT ORDERS THAT:
1.The contravention application filed 11 February 2022 be dismissed.
2.The existing orders for Z born in 2009, X born in 2012 and Y born in 2007 (“the children”) to spend time with the father be suspended until further order.
3.The children be delivered up to the mother.
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 the pseudonym Manolis & Manolis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
RIETHMULLER J:
INTRODUCTION
The applicant father (“the father”) seeks a finding that the respondent mother (“the mother”) contravened contact orders made by Mead J on 20 September 2021 and consequential orders providing for make-up time.
BACKGROUND
On 20 September 2021, final parenting orders were made by consent following a defended hearing before Mead J. Both parties were represented by counsel and the children by an Independent Children’s Lawyer (who also consented to the orders). The orders provided that the parties share equal parental responsibility for their three children (Y, born in 2007, Z, born 2009, and X, born 2012), that the children live with the mother, and they spend every alternate weekend with the father, together with special days and half of each school holiday.
The contact orders relevant to this application provided as follows:
4. That the children spend time with the father as follows:
(a) from the date hereof to 10/10/21, each alternate weekend from 10.00am on Saturday until 5.00pm on Sunday.
(b) From 22/10/21 until 17/12/21:
(i) From 5.00pm on Friday until 5.00pm on Sunday an each alternate weekend thereafter (from 5.00pm on Friday until 5.00pm on Sunday).
(ii) during the 2021-2022 Christmas school holidays, from 5.00pm on Friday 17/12/21 to 5.00pm on Tuesday 22/12/21 and each alternate weekend thereafter (from 5.00pm on Friday to 5.00pm on Tuesday) during the holidays.
…
(f) For Christmas:
(i) from 3.00pm on 25/12/21 until 3.00pm on 27/12/21 and each alternate year thereafter (reserving to the mother, from 3.00pm 24/12/21 until 3.00pm 25/12/21 and each alternate year thereafter).
(ii) from 3.00pm on 24/12/22 until 3.00pm on 25/12/22 and each alternate year thereafter, from 3.00pm 25/12/22 to 3.00pm 26/12/22) and each alternate year thereafter.
…
(i) at New Year's:
(i) from 12.00pm on 31/12/21 until 12.00pm on 01/01/22 (reserving to the mother from 12.00pm on 01/01/22 until 12.00pm on 02/01/22) and each alternate year thereafter;
…
6. That all handovers that do not occur at school do take place at B Restaurant J. at D Centre ( or at such other location as agreed by the parties in writing) at the commencement of time and at the mother's place of residence at the conclusion of time.
The father says that the mother has never complied with the contact orders. In February 2022 he brought this contravention application relying upon eleven alleged contraventions of the orders:
(1)On 25 September 2021 at 5.00pm at B Restaurant located at D Centre (“B Restaurant”), the mother did not deliver the children to the father to spend time with him pursuant to Order 4(a).
(2)On 9 October 2021 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(a).
(3)On 22 October 2021 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(b)(i).
(4)On 5 November 2021 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(b)(i).
(5)On 19 November 2021 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(b)(i).
(6)On 3 December 2021 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(b)(i).
(7)On 17 December 2021 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(b)(ii).
(8)On 25 December 2021 at 3.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(f)(i).
(9)On 31 December 2021 at 12.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(f).
(10)On 14 January 2022 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(b)(ii).
(11)On 28 January 2022 at 5.00pm at B Restaurant, the mother did not deliver the children to the father to spend time with him pursuant to Order 4(b)(ii).
Whilst Count 9 refers to Order 4(f) it is apparent that the father relies upon Order 4(i)(i). As the error in identifying the relevant sub-clause of Order 4 led to no real confusion nor any prejudice to the mother I granted the father leave to amend Count 9 to refer to the correct order.
The respondent mother filed an affidavit on 9 March 2022 admitting that the children have not spent time with the father since 12 June 2021. I note that the mother admitted the contraventions took place and relied upon there being a reasonable excuse based upon two factors: first, that she had attempted to make the children attend upon contact, and secondly that the orders, as she understood them, did not require the children to attend until family therapy had taken place. As the mother is unrepresented it is appropriate to proceed to deal with these two substantive issues, notwithstanding that one also goes to whether there has been a contravention within the meaning of s 70NAC Family Law Act 1975 (Cth). I take her admission as being limited to an admission that the children did not spend time with the father as ordered. The hearing was run on this basis.
Section 70NAC of the Act does not provide for strict liability when an order is not complied with, relevantly stating:
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.
A parent has a clear obligation to encourage a child to spend time with the other parent in accordance with the orders of the court, just as a parent is obliged to ensure that a child attends school, stays at home (or another suitable place) at night, attends upon medical practitioners when their health so demands, and even to clean their teeth each morning and night. The court has described the obligation in a variety of ways, as conveniently summarised in TVT & TLM [2006] FMCAfam 20:
32.In many contravention cases involving contact orders, consideration must be given to what is necessary to make a ‘reasonable attempt to comply with the order.’ The extent of the obligation has been discussed in a number of cases. The starting point is that a contact order is not a mere declaration – it is implicit in the order that reasonable steps must be taken to ensure that the contact as ordered takes place: Stavros and Stavros (1984) FLC 91-562. The absence of detailed orders providing for the mechanics of hand-over does not make the orders inoperative or incapable of enforcement.
33.Whether steps taken are a ‘reasonable attempt to comply’ with a children’s contact order will ultimately depend upon the facts and circumstances of each case. However, it is accepted that the residence parent has a duty to ensure that the child not only attends, but does so in a positive manner. The way that the obligation has been expressed in different cases throws further light on the extent of the obligation:
a) The residence parent must actively encourage the chid to attend contact as ordered.
b) ‘The courts have been careful to consider whether in reality, not just on the face of things, the [residence] person has taken reasonable steps to deliver the child for [contact]’: see O'Brien & O’Brien (1993) FLC 92-396 at [13].
c) ‘It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it’: Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [25].
d) Similarly, a mere request that the child telephone, or come to the telephone is insufficient.
e) Once an order for contact has been made, it is ‘no longer a case of saying to the child: you go if you want to, if you wish to go you go, or you make up your own mind’: see O'Brien & O’Brien (1993) FLC 92-396 at [11].
f) A residence parent ought to make ‘the child understand that it was the [residence parent’s] attitude that the child had to go on [contact]’: see O'Brien & O’Brien (1993) FLC 92-396 at [8].
g) The residence parent is expected to bring to bear all the authority that they have over a child, just as they would to ensure the child attends school: See P & P [2002] FMCAfam 315 (Unrep.) at [14].
h) It must be noted that ‘an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or in a manner which of its own suggests that this is your obligation under the order but mummy really does not mind if you say no.’ Such an invitation is insufficient: see Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [26].
i) ‘[I]t is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation’: see Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [6].
j) ‘It is not a sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter’: Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [6].
k) The residence parent is ‘not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance’: Stevenson v Hughes (1993) FLC 92-363 ([1993] FamCA unrep527) at [8].
In response to the contravention allegations the mother simply says, identically with respect to each contravention, that:
“… I did all I could do within my power to have the children delivered to the care of the Father pursuant to the orders. They refused to go.”
(Mother’s affidavit filed 9 March 2022 at para 11)
The mother also said that:
“At all times when I have coaxed, cajoled, supported, encouraged and done all things in my power to deliver the children to the father, the children have yelled, cried, sobbed, sat in silence, slammed doors and on one occasion, taken out their distress on me. This has, at times, had negative and detrimental impacts on my relationship with the children. The only option that remains to me is to physically manhandle and therein physically assault the children which I do not consider in the best interests of their (or my) physical or mental well-being. I do not engage in token compliance with the Orders.”
(Mother’s affidavit filed 9 March 2022 at para 10)
The mother did not identify the “times” she refers to, importantly whether they occurred after the orders were made, in the affidavit.
As the mother was unrepresented at the hearing I asked her to describe what occurred on each of the occasions that she did not provide the children for contact, or at least on the first occasion. She gave evidence about what occurred when asking the children to prepare to spend time with the father. She said that the children would start crying when packing. She would tell them that “dad and I had agreed to this”. She said she asked to think about what they might do on the weekend “so we can pack the right things”. She said Z would be hysterical and start sobbing, Y would go into her room and slam the door, and X would just cry. She said she tried speaking to the chidden individually and talk about the times they've had with their father. She said she would also talk about what the actual concerns were and what issues they saw, and what could be done to help and support with these things. She also tried telling them that if “you're not going to go with dad then you've got a birthday coming next weekend and you can't go to that. You can't pick and choose what you do, dad and I have agreed to this and this is what's going to happen.” She said that eventually she would decide not to pursue the issue due to the distress of the children.
The mother did not contact the father, nor make any suggestion for any alterative process.
The mother has never complied with the contact orders from the first occasion that contact was to take place after the consent orders were made. Had the mother not thought that she could have the children attend contact she should never have entered into the orders. However, this case is unusual as Notation (e) of the Orders foreshadows that she may not be able comply with orders she entered into by consent. The notation is in strange terms given the clear terms of the orders.
The father’s solicitor did not challenge the mother’s evidence as to the events when she attempted to make the children attend upon contact (even when cross-examining the mother after she was recalled to give brief further evidence, after I had alerted him to this issue). Instead the father’s solicitor relied upon the argument that the mother’s evidence was so inherently incredible that he did not need to cross-examine upon it. I do not accept that argument in the context of this case. The evidence could have been more detailed, but it was coherent and not obviously concocted. In the absence of challenge I am not persuaded to reject this evidence of the mother.
Other surrounding circumstances provide some context for the case. First, there is a lack of evidence as to any consequential step she took (such as following through on stopping the children from attending sleep-overs). Secondly, she is a psychologist, leading one to think she should have the skills necessary to manage the children, particularly in the absence of any evidence that the children are not manageable in other circumstances. Thirdly, she has not actively sought to engage outside assistance. Fourthly, her insistence upon the therapist nominated at the time of the orders, despite being unable to obtain an appointment (whether due to COVID-19 or otherwise) which has gone on for months, appears hollow given that throughout this period she has been in breach of the orders. Fifthly, her evidence is that she did not telephone, send an SMS text message, nor send an email to the father. Such conduct is not merely impolite but also disrespectful of the father. It is difficult to image that the children would not have been aware that the mother did not call the father to tell him that they were not attending, if the events had unfolded in the way the mother outlined. It indicates that she had no desire to explain her failure to honour the agreement that resulted in consent orders and left the father pointlessly waiting at the change-over location. However, these matters are also explained by the level of parental conflict and are not sufficient in the circumstances of this case to lead to a rejection of the mother’s unchallenged evidence.
On the evidence before the court I am not satisfied that the father has proved on the balance of probabilities that the mother contravened the orders in the sense required by s 70NAC of the Act.
The meaning of “reasonable excuse” is not limited, but, as set out in s 70NAE of the Act, includes the following:
Meaning of reasonable excuse for contravening an order
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the court is satisfied that the respondent ought to be excused in respect of the contravention.
(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a)....
The mother bears the onus of proving a “reasonable excuse” on the balance of probabilities.
The mother alleges that the orders should be read as only requiring the children to spend time with the father after a course of family therapy. This argument is based upon various notations to the orders, and two of the orders providing for family therapy. The relevant notations and Orders provide:
… UPON FURTHER NOTING:
(e) that the father has not spent time with the children (pursuant to the Order of 15/07/19) since 12 June 2021, and the mother asserts that she has been unable to persuade the children to spend time with the father;
(f) that the mother supports the father having a meaningful relationship with the children;
(g) that the parties acknowledge that therapeutic intervention to re-unify the father with the children is necessary and that they will jointly instruct [Mr E] to use his best endeavours to effect the same; and
(h) that the parties will also jointly instruct [Mr E] to support the children and the parties in increasing the amount of time the children spend with the father pursuant to the Order.
BY CONSENT IT IS ORDERED:
…
14. The parties do jointly instruct [Mr E] (or if he has retired or cannot consult with the parties and/or the children, then the next available, suitability qualified and experienced therapist at [C Street]) at their joint and equal expense to continue the process of reportable family therapy for the purpose of supporting the time the father shall spend with the children (as hereinbefore provided).
15. That the parties do all such things necessary to comply with any recommendations of [Mr E], or other therapists at [C Street], as directed, with respect to supporting the extension of time the father spends with the children (as hereinbefore provided) including the parties attending separately such therapists as [Mr E] or other therapists may recommend.
The orders with respect to family therapy, however, do not restrict or limit the earlier orders for contact.
Notations to orders are not orders and do not override or limit the terms of orders. Notations merely record factual allegations or, in most cases, agreements by the parties as to certain facts. The mother alleged in her affidavit that the notations were added as a result of concerns express by Mead J, however no transcript has been provided to show what was said at the time the orders were made.
In essence, on the material before the court it appears that the mother proceeded upon the basis that she could ignore the terms of the orders until family therapy had taken place.
The mother appeared genuine in her views that the notations impacted the effect of the orders. She is not a lawyer and it is not surprising that she did not see other clauses in the same document as being riders on the actual orders. I am persuaded that she did not fully understand the effect of orders to which she consented whilst represented by counsel.
I am persuaded that the terms of the orders and notations are such as to result in the mother’s approach (albeit erroneous) being a reasonable excuse in the circumstances.
I am also persuaded that the mother’s inability to persuade the children to attend for time with the father formed a basis for a reasonable excuse.
After hearing the evidence it was apparent that the practical issue was whether or not the children would spend time with the father. Places were available at the Adelaide child care room and I ordered that the children be placed in the room prior to the time listed for judgment. I offered the parties the opportunity to have the child care room deliver the children to the father prior to judgment, noting that the events would then be further evidence in the case. Both parties agreed to this course. The Court Child Expert facilitating the hand-over was of the view that the children were too distressed to be forced to go with the father. I accept that the expert took all reasonable steps to facilitate the hand-over and that to force the children further was not reasonably open.
It is apparent that the mother has a reasonable excuse not only on the basis of her interpretation of the orders, but also on the basis that the children cannot be persuaded to spend time with the father. In the circumstances the application must be dismissed.
The mother has filed an application for a variation of the orders which is awaiting allocation of a return date. In the circumstances, it is appropriate to suspend the current “spend time with orders” until further order. It would be appropriate for the matter to be re-listed to the Honourable Justice Mead, if possible, given her Honour’s previous involvement of the matter, however this is a listing arrangement for the National Assessment Team.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 22 June 2022
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