MARKES & MARKES
[2018] FCCA 2663
•21 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARKES & MARKES | [2018] FCCA 2663 |
| Catchwords: FAMILY LAW – Contravention application – parties agreed in parenting orders providing for children to spend time with father – orders provide for mother to deliver the children to the father’s place of residence – two earlier contravention applications – contraventions include not delivering children to father’s residence during school holidays, thwarting pre-paid holidays – further contravention application arising from non-delivery of children during 2017 Christmas holidays – respondent admits non-delivery of children but advances defence of reasonable excuse for not having done so – urgent s 11F child inclusive conference ordered – elder child unable to attend conference due to being away on school camp– reasonable excuse not established – orders made for delivery of submissions addressing the question of penalty – interim orders made for make-up time and for children to spend two consecutive weeks with applicant over Christmas holiday – respondent seeks to vacate orders for make-up time – order made to facilitate psychiatric assessment of respondent for the purposes of penalty hearing – respondent does not obtain psychiatric assessment – application in a case filed seeking stay of declaration of contravention pending application for extension of time in which to appeal making of declaration – applicable principles – potential for imposition of term of imprisonment to impact upon respondent’s employability even if sentence suspended – consequential effect on children – best interests of children a significant consideration – stay granted. |
| Legislation: Family Court Rules, rr.22.11 Family Law Act 1975 (Cth), ss.11F, 70NAA, 70NAC, 70NAE, 70NAF, 70NBA, 70NDA, 70NDB, 70NEA, 70NFA, 70NFB, 70NFG Federal Circuit Court Rules 2001 (Cth), rr.1.05, 25B.04 |
| Cases cited: Adamson & Adamson (2014) FLC 93-622 Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Caballes & Tallant [2014] FamCAFC 112 |
| Applicant: | MR MARKES |
| Respondent: | MS MARKES |
| File Number: | MLC 9396 of 2009 |
| Judgment of: | Judge A Kelly |
| Hearing date: | 14 September 2018 |
| Date of Last Submission: | 14 September 2018 |
| Delivered at: | Melbourne |
| Orders pronounced: | 14 September 2018 |
| Delivered on: | 21 September 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Eidelson |
| Solicitors for the Applicant: | Matthew Oldham Barrister & Solicitor |
| Counsel for the Respondent: | Ms Tulloch |
| Solicitors for the Respondent: | Rigoli Lawyers |
ORDERS
UPON THE UNDERTAKING of the respondent, MS MARKES, by her counsel that she will prosecute with due expedition her application for an extension of time in which to appeal from the declaration made by paragraph 1 of the Order made on 1 March 2018, and any appeal arising thereon,
THE COURT ORDERS THAT:
All times be abridged and the respondent’s application in a case filed on 11 September 2018 be listed for hearing this day.
Pending the determination of the application in an appeal filed by the respondent on 11 September 2018 and any appeal, the declaration made by paragraph 1 of the Order made on 1 March 2018 be stayed.
The further hearing and determination of the contravention application filed on 1 February 2018 is adjourned to a date to be fixed.
The costs of and incidental to this day are reserved.
Liberty to apply on reasonable notice.
IT IS NOTED that publication of this judgment under the pseudonym Markes & Markes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 9396 of 2009
| MR MARKES |
Applicant
And
| MS MARKES |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgement explain why an order was made granting the respondent’s application for a stay of an order made on 1 March 2018 in order that she might pursue an application in an appeal, filed on 11 September 2018, against the making of a declaration that she had contravened orders made on 30 September 2013 by failing, without reasonable excuse, to make available for contact, or to deliver to the applicant’s residence, the two children of the parties’ marriage.
But for the application in a case seeking a stay of that order, the parties were due to make submissions and a determination was to be made respecting the applicant’s contraventions as so declared. Until the filing of that application in a case, it had been the parties’ common position that they wanted the question of penalty determined in order that they might be able to ‘move forward’. As appears below, the respondent appears to have reconsidered the position which she proposes to adopt.
Background
Having regard to the grounds upon which the application was made, it is necessary to set out the history of the matter in a little detail.
The parties were married on 2003 and separated on 1 October 2008. From 2008 until 2009, the parties lived separated under the same roof.
At the time of separation, the applicant worked as a (occupation omitted) whilst the respondent was employed as a (occupation omitted).
On 11 February 2010, a decree was made for the dissolution of their marriage.
On 11 October 2011, the applicant filed an initiating application for an adjustment of their property interests.
On 27 October 2011, final property orders were made by consent.
There are two children of the marriage, a girl now aged 12 years and a boy now aged 10 years.
On 6 February 2013, the applicant father filed an initiating application seeking parenting orders. The annexures to the application set out in detail the interim and final orders which were sought by the applicant.
The parties filed extensive evidence by way of affidavit.
Following the making of a series of interim orders, on 30 September 2013, final parenting orders were made by consent. The Order provided that the parties should have equal shared parental responsibility. It further provided for the children to live with the respondent and to spend time with the applicant in the manner regulated and agreed by paragraphs 3 - 7 of that Order. In addition, the Order provided, by paragraphs 6(a)-6(b), a regime to regulate the times at which the children might communicate with their parents by telephone when in the care of the other parent. In particular, paragraph 8 of the Order provided that:
. . . at the commencement of all time spent between the husband and the children, the wife shall deliver the children to the husband’s place of residence
Other orders were made, one of which is addressed below at [19].
On 28 February 2014, the applicant filed a contravention application arising out of the respondent having, on 6 January 2014 and 14 February 2014, as it was alleged, intentionally and without reasonable excuse failed to make the children available to spend time with the applicant.
It appears that the circumstances of this alleged contravention application stemmed from the non-delivery of the children shortly prior to the commencement of a pre-booked summer holiday.
On 8 April 2014, orders were made, by consent, that the respondent had without reasonable excuse contravened the parenting order. The Order made on 8 April 2014 further provided for the respondent to allow make-up time to the applicant and for the payment of costs. A further order was made that the respondent attend and complete a Post Separation Parenting course.
On 16 March 2016, the applicant filed a further contravention application. The second contravention application contained some 20 contraventions (some of which arose from multiple incidents alleged to have arisen from events occurring on the same date).
The parties each filed evidence and proceeded to a contested hearing on 11 May 2016 at which each party was represented by counsel. Upon the hearing and determination of the application, the Court made a declaration that the respondent had contravened the parenting Order by failing without reasonable excuse to make the children available for contact or to deliver them to the husband’s residence. An order for costs was made and the respondent was required to enter a bond for one year that she be of good behaviour.
On the basis of that Order, the respondent’s bond expired in May 2017.
On 6 December 2017, the respondent proposed that their daughter should undergo a mental health plan. In this context, paragraph 16(c) of the parenting Order provided that the parties be restrained from taking the children to any counsellor, psychologist, or psychiatrist without the prior written consent of the other or order of the court. On 7 December 2017, the applicant communicated with the respondent that he did not agree to the respondent’s proposal.
On 7 December 2017, the respondent delivered the children to the paternal grandmother’s home to facilitate them in meeting with a cousin who had travelled to Australia from the (country omitted).
On 1 February 2018, the applicant filed the present contravention application which related to a series of contraventions alleged to have occurred in the period between 14 December 2017 and 16 January 2018. Again, it appeared that the circumstances of the alleged contraventions stemmed from the non-delivery of the children on several dates during the 2017 Christmas school holidays, including shortly prior to the commencement of a pre-paid summer holiday at Town A.
In summary, the children did not spend time with the applicant during that holiday from 1-8 January 2018 and he was unable to communicate with them on 19 December 2017 and 9 and 16 January 2018. The children’s spend time with the applicant resumed in late January 2018.
In January 2018, the applicant initiated a mediation with the respondent, which the respondent described as having been unsuccessful.
The first return of the contravention application was listed for hearing on Wednesday, 28 February 2018 in the course of a Duty List week.
On that date, the parties were each represented by counsel. In opening, counsel for the applicant drew attention to the seriousness of the contravention and that the alleged breach of the parenting Order arose in the context of two prior contravention orders and where the respondent had been required to enter into a bond to be of good behaviour.
In my exchange with counsel, after referring to the evolving potential for the imposition of a custodial sentence by way of penalty and to the quasi-criminal nature of this jurisdiction, I suggested that before proceeding further upon a hearing of the application and determination of the allegations, the respondent may wish to avail herself of an urgent child inclusive conference pursuant to s 11F of the Family Law Act 1975 (Cth). This proposal was embraced by counsel for the respondent.
Before the making of orders to regulate the future conduct of the matter, further matters were addressed, including the following:
(1)counsel for the respondent expressly conceded that “the breach took place”. When asked to confirm that admission, counsel responded:
We admit that the breach took place – that the contravention took place. However, we say there is a reasonable excuse for that in that in that my client was acting and believed on reasonable grounds that disobeying the parenting order was necessary to protect the health of her children.
(2)asked whether the respondent proposed to support that submission by evidence, my attention was drawn to an affidavit sworn by the respondent on 27 February 2018 that had not reached the file and which it became necessary to locate;
(3)the s 11F conference was discussed with a view to emphasising the importance of trying to gain a better understanding of the problem which underlay the further contravention application;
(4)counsel for the applicant made clear that he would not seek to cross-examine the respondent upon her affidavit on the stated basis that “no reasonable excuse is made out on her affidavit”;
(5)discussion ensued as to the desirability of identifying “something that looks like a real solution”;
(6)attention was drawn to the circumstance that the elder child was presently attending a school camp and whether it would be necessary for her to return from that school camp for the purpose of the s 11F conference. I stated that I did not consider this to be appropriate.
On the following day, an oral report was given, on oath, by the family consultant who had interviewed the parents and the younger child.
The family report writer noted the applicant’s desire for the respondent to adhere to the consent Order. Further, the writer noted the respondent’s compliance during the period of the bond to be of good behaviour. The consultant noted that since the expiry of the bond, new allegations had been made by the respondent who had recently applied for an intervention order against the applicant naming the children as protected persons, which application was listed for hearing on 16 March 2018.
The family consultant noted the starkly differing views expressed by the parties in relation to the children’s emotional well-being and noted that there was no information presented which suggested that any risk issues raised by the respondent would meet the threshold for notification to the Department of Health and Human Services. Contrastingly, the consultant identified a risk of emotional harm, with the potential to compromise the children’s overall development, if they were to be continually entwined within the parties’ parental conflict and not free to have a relationship with both parents.
The family consultant noted that the respondent raised many concerns in relation to the children’s safety while in the care of the father. However, the respondent was unable to substantiate her concerns, with the family consultant observing, “her concerns seemed to be more around parental style differences than any substantial risk”. The consultant also noted that the respondent had no information to support claims that the children experienced mental health issues connected to time they spent with the applicant. Further, when asked how issues could be resolved, the respondent was unable to provide a specific response.
The consultant detailed her observations upon meeting with the parties’ son whom she found presented as a very articulate, intelligent young boy “with quite the sense of humour.” The consultant detailed the child’s view on his parents’ disagreements about time spent with their father, stating:
[X] described being guttered (sic) by not being able to go to his father’s house at Christmas in 2017 and spoke fondly of the time spent holidaying with his father and his partner, who he also described as having a positive relationship with. He presented worry and concerns about spending time with his father, however it appeared that it was more his mother’s worry that he was reporting on. In summary, [X] impressed as a child who was conflicted between what his mother wanted what his father wanted.
. . . He expresses that he does want to spend time with his father, which leads me to future directions.
The consultant proceeded to address the question of ‘future directions’ including that the Court should appreciate the limitations of the consultant’s assessment by reason of the elder child not having been interviewed and proposed a date and time at which that interview could be held. The consultant recommended the reinstatement of the status quo and that consideration be given to family counselling.
When invited to do so, neither counsel sought to raise any further issues with the family consultant. The consultant undertook to prepare a written report.
Following the giving of that evidence, the hearing of the contravention application resumed. I then raised a question concerning the procedure for informing the respondent of the nature of the allegations raised by the contravention application. I did so in the context that counsel for the respondent had made a submission on more than one occasion that the respondent admitted to the breach of the parenting Order, but wished to meet the application on the basis of reasonable excuse.
Rule 25B.04 of the Federal Circuit Court Rules 2001 (Cth) reads:
At the hearing of the application the Court must:
(a)inform the respondent of the allegation; and
(b)ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c)hear any evidence supporting the allegation; and
(d)ask the respondent to state the response to the allegation; and
(e)hear any evidence for the respondent; and
(f)determine the proceeding.
I explored this issue with both counsel, having regard to the admission of breach and the respondent’s affidavit which was relied upon in relation to the issue of whether the respondent had a reasonable excuse for having failed to comply with the parenting Order. Counsel for the applicant supported the adoption of that course. In response to my enquiry, as I understood the submission of counsel for the respondent, it was not suggested that there was a necessity in all the circumstances for the respondent to be brought forward in the body of the Court and have the nature of each of the alleged contraventions explained to her. Instead, counsel for respondent addressed a separate topic, indicating a preference for the s 11F report writer to further interview the daughter before the question of contravention was determined.
Responding to that submission, counsel for the applicant submitted that the question whether the respondent had a reasonable excuse for not having complied with the consent orders should be determined without further delay. Counsel for the applicant also submitted that the question of penalty could however be deferred, particularly in light of my expressed concern that the respondent’s mental health may warrant investigation, the respondent having filed no evidence of this kind.
Accordingly, in this compartment of the case, the sole question for determination was whether the respondent had a reasonable excuse for the admitted failures to obey the parenting Order. I concluded that, in the exercise of discretion, I should proceed to determine that question and, having regard to the admissions made on behalf of the respondent, invited her counsel to make submissions.
As appears below, in seeking to establish a defence of reasonable excuse, emphasis was placed upon the respondent’s affidavit at [14] which stated:
On Thursday 19 October 2017 after returning from dinner with their Father, [Y] said to me while I was trying to put her to bed: “I hate myself. It would be easier if I was not alive. It’s too hard. There’s nothing good.” I explained to [Y] that people under a lot of stress can make them feel this way. I explained further that these feelings will pass and this it might be good to speak to someone about this. I said to [Y] that she could speak to Kids Helpline if she wanted to and she took up my offer. I facilitated the call and left her alone to speak to the person at Kids Help. The telephone call lasts (sic) about an hour. [Y] appeared to be more positive after the telephone call.”
The matters in [14] of that affidavit related to events in October 2017.
Counsel for the respondent made submissions respecting the question of reasonable excuse.[1] The submissions made are set out below:
[1] See s 70NAE, Family Law Act 1975 (Cth).
HIS HONOUR: - - - consideration. Mr Horsfall, I conclude that I ought determine the present application so I think you should assume that I need hear nothing further from Mr Eidelson in relation to the claims being made out. The burden of the present application in my view is for you to say anything further you wish to say on the question of excuse.
MR HORSFALL: Which should - - -
HIS HONOUR: And of course anything else that you consider relevant. But in the way that I understood – in the way I understood Mr Eidelson’s submission, it was to proceed incrementally. He underlines the importance of determining finally matters as far as that can be done. If I determine that the contraventions are made out, then, in those circumstances the question of penalty might be a separate step.
MR HORSFALL: Your Honour – your Honour, I would just in terms – would you like me to make some submissions in relation to reasonable excuse?
HIS HONOUR: Yes. I do.
MR HORSFALL: Yes, your Honour.
HIS HONOUR: Thank you.
MR HORSFALL: Your Honour, as I mentioned yesterday, my client was essentially acting out of concern about the mental health of her children and there’s some provisions out detailing various incidents which took place last year in respect to that in relation to [Y], and they’re contained, your Honour
HIS HONOUR: I’ve read the affidavit.
MR HORSFALL: in the affidavit set out in paragraph 14, principally paragraph 14, your Honour.
HIS HONOUR: Yes.
MR HORSFALL: I won’t – I won’t go through the
HIS HONOUR: You don’t need to read them aloud.
MR HORSFALL: Need to. Your Honour, I think that my client out of the concern wrote to the applicant outlining what had happened and said that probably the best way of – well, the best way of dealing with it would be for her to have a mental health plan. That was raised with the respondent after the – after [Y] had opportunity to speak for – speak to Kids Australia. So those incidents it’s submitted, your Honour, are sufficient to raise a reasonable concern about the mental health of her children and that’s why she acted in the manner that she did. I thought that the material provided by the applicant left out a couple – one or two important points which should be noted by the court. The first is that contact was resumed in January for a short period of time, and the other thing that’s important to mention is that she did participate with the – with the applicant in mediation so
HIS HONOUR: I’ve read that.
MR HORSFALL: so this is not a case where she has made a unilateral decision, refused to engage with the – with the other party.
HIS HONOUR: To be fair, Mr Horsfall, on a linear analysis mediation is a sequel that follows after contravention on one view.
MR HORSFALL: Yes, your Honour.
HIS HONOUR: Would that be a correct assessment?
MR HORSFALL: I’m not sure that she would have been aware of the exact legal implications of mediation, your Honour, but she did attempt to engage with the applicant in terms of resolving the various differences that they had between them.
HIS HONOUR: Mr Horsfall, that would be a submission that would resonate in a significant way if this was the first occasion.
MR HORSFALL: Beg your pardon?
HIS HONOUR: If this was the first occasion at which contravention had been raised you could understand easily counsel making a submission and it being a submission that would resonate. This is not the first, and it’s not the second.
MR HORSFALL: And it’s somewhat different to at least the second contravention which related to a difference of opinion as to where the – where contact should take place and occurred as a result of the respondent moving from Suburb 1 to Suburb 2 so it’s somewhat of a different nature, that contravention to this one.
HIS HONOUR: Clearly, that’s right.
MR HORSFALL: Yes, in that this has been driven primarily by the concerns of the children and her concern in relation to that, so it has a somewhat different flavour to it.
HIS HONOUR: All right. Is there anything further?
MR HORSFALL: I don’t think I have anything further to say, your Honour. As I said, it would be my preference that this was resolved rather without the – outside the contravention environment which is a quasi criminal.
Upon the making of those submissions, I was not satisfied that the respondent had established a reasonable excuse for having not delivered the children to the applicant’s residence on the dates in question and, the contravention otherwise having been acknowledged, determined the application accordingly. Following those submissions, I stated:
On the 11th of May 2016, the Court made orders and declarations concerning the matters which had been alleged on that occasion. It seems to me entirely appropriate, it’s a matter about which I entertain almost no doubt that declarations in the same terms ought be made to reflect each of the contraventions that have been made on this occasion and I am also inclined to accede to Mr Eidelson’s submission that any question of penalty be deferred until at least after 13 March 2018.
Discussion then followed concerning the filing of submissions by the applicant in relation to penalty so that the respondent could then have an opportunity to respond. Further discussion ensued as to the making of arrangements for make-up time and for the applicant to clarify the nature of the penalty which was being sought. Counsel for the applicant made plain that the applicant did not and would not seek a custodial sentence for the respondent, but indicated that it may be appropriate to impose a suspended term of imprisonment.
Orders were made regulating the filing of submissions on penalty and for the parties and their daughter to attend a child inclusive conference.
The further hearing of the contravention application resumed on 2 May 2018 on which day each party was represented by counsel. On that day, further orders were made affording the respondent an opportunity to attend upon a psychiatrist for assessment in order that she might rely upon such report upon the question of penalty. Other orders were made to facilitate the children having additional spend time with the applicant until further order. All orders so made on 2 May 2018 were made by consent, save for an order that the children spend time with the applicant during their summer holidays for the first two weeks of January in each year. While it was proposed that the matter be adjourned to the next available date in November 2018, counsel for the respondent sought that the matter be heard at an earlier date and the matter was listed for 14 September 2018.
The matter was accordingly adjourned to 14 September 2008 for a determination on the issue of penalty. The parties having filed submissions on the question of penalty, no further evidence was filed. As appears below, the respondent did not avail herself of the opportunity to undergo a psychiatric examination or furnish a report on her mental state for the purposes of a hearing upon the question of penalty.
Proposed appeal
On 11 September 2018, the respondent filed an application in an appeal in the Family Court of Australia. By this application, the respondent sought an extension of time within which to appeal from the making of the declaration that had been made on 1 March 2018.
On the same date, the applicant filed an application in a case in this Court seeking a variety of relief, including an order that would stay the declaration made on 1 March 2018 concerning the contravention of parenting orders. The respondent also filed an affidavit.
The respondent’s application in a case, her affidavit and application in an appeal was served on the applicant’s solicitors on 12 September 2018.
At the commencement of the hearing on 14 September 2018, counsel for the respondent alluded to the fact that the application in a case had been served only very recently upon the applicant’s solicitors and made an anticipatory submission that she accepted an adjournment would be appropriate if it was sought by the applicant in all the circumstances.
Counsel for the applicant disavowed any application for an adjournment, preferring that the matter be determined without further delay.
Consideration
Part 16 of the Federal Circuit Court Rules 2001, Judgments and Orders, does not expressly confer power on the Court to stay the operation or enforcement of an order. Where those rules are insufficient the Court may apply, relevantly, the Family Court Rules: r 1.05(2). Rule 22.11 of the Family Court Rules confers express power to stay the operation or enforcement of an order to which an appeal relates.
The principles applicable to the consideration of an application for a stay are well settled. In Aldridge & Keaton (Stay Appeal)[2] Bryant CJ, Boland and Crisford JJ recognised that an order granting a stay of proceedings was a discretionary judgment[3] and stated:[4]
[2] [2009] FamCAFC 106.
[3] Ibid, [17].
[4] Ibid, [18].
The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known.[5] The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
[5](see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] [1986] HCA 13; (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90;(1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332).
·the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
·a person who has obtained a judgment is entitled to the benefit of that judgment;
·a person who has obtained a judgment is entitled to presume the judgment is correct;
·the mere filing of an appeal is insufficient to grant a stay;
·the bona fides of the applicant;
·a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
·the desirability of limiting the frequency of any change in a child’s living arrangements;
·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
·the best interests of the child the subject of the proceedings are a significant consideration.
See also Redmond & Stolz;[6] Lockley & Bardot;[7] Grange & Grange and Ors (No 2);[8] Carson & Hillman.[9]
[6] [2015] FamCAFC 116, [24] (May, Ryan and Kent JJ).
[7] [2016] FamCAFC 185, [13] (Aldridge J, Foster and Ryan JJ agreeing).
[8] [2018] FamCA 241, [9]-[12] (Kent J).
[9] [2018] FamCA 605, [6] (Carew J).
Counsel for the respondent made detailed submissions in relation to each of the matters addressed in Aldridge & Keaton. Having regard to the conclusion which I have reached it is unnecessary to examine each of those matters in particular detail. However, I note the following by reference to each of the proposed grounds of appeal.
First, it seemed to be assumed that the question of reasonable excuse was a matter which bore on the issue of contravention as opposed to the manner in which the admitted contraventions ought to be dealt with.
Part VII of the Act concerns Children. Within Part VII, Div 13A, which comprises ss 70NAA – 70NFJ, addresses the consequences of failure to comply with orders and other obligations which affect children.
Section 70NAC provides that a person bound by a parenting order is taken to have contravened that order if he or she has “intentionally failed to comply” or “made no reasonable attempt to comply” with it. The admission made by the respondent did not distinguish the basis on which she admitted to having contravened the parenting Order. The respondent’s submissions conflated the question of reasonable excuse with the question of reasonable attempt, the latter concept being relevant to contravention while the former is a step that may be relevant to penalty. Within Div 13A, the question of reasonable excuse is a separate issue.
58.Section 70NAE addresses circumstances that, for the purposes of Div 13A, can constitute a “reasonable excuse for contravening an order.” Relevantly, sub-s 70NAE(5) provides:
(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).
Division 13A distinguishes the manner in which the Court may address contraventions which are alleged but not established (Sub-Div C); contraventions which are established but for which a reasonable excuse is made out (Sub-Div D); contraventions for which a reasonable excuse is established but which is classified as a less serious contravention (Sub-Div E), and; contraventions for which a reasonable excuse is established but which is classified as a more serious contravention (Sub-Div F).
Structurally, Div 13A, marks out clear distinctions between each of: (1) a contravention; (2) establishing a reasonable excuse for a contravention, and; (3) the question of penalty, which depends upon the seriousness of any such contravention. I discern no suggestion in Div 13A that a contravention is not established where a reasonable excuse is made out. To the contrary, for the purposes of Div 13A, s 70NAE provides a statutory meaning for the expression reasonable excuse for contravening an order and Sub-Div E and F address the approach to be taken to a contravention where a reasonable excuse is not established. So much is confirmed by the simplified outline of Div 13A provided by s 70NAA(3).
Secondly, as to the complaint of a failure to provide reasons, I accept that no written judgment was delivered. Counsel for the respondent informed me that a request for written reasons had been made “a couple of weeks ago” but submitted that this did not remove a requirement that the Court should provide reasons. While it was submitted that a request for written reasons had been made “a couple of weeks ago” it appears that solicitors for the respondent had contacted my chambers and requested a copy of the Judgment referred to in the transcript of proceedings on 1 March 2018. At no stage had any other request been made. The scope and extent of the obligation to provide reasons may be informed by the circumstances of the particular case. To the extent that reasons were given ex tempore, I have set them out above: [41]. In the hearing on 1 March 2018, the sole issue for determination was whether the respondent had established a reasonable excuse for her failure to obey the parenting Order. That issue fell for determination upon the submissions set out above at [41]. No other submissions were made.
Thirdly, as to the complaint of failure to adhere to the procedure in r 25B.04(a)-(e), I have set out the sequence of events in which that issue was addressed. Concerning the requirements of r 25B.04, the respondent was not self-represented but appeared by counsel who frankly conceded the issue of contravention and then drew attention to the late filing of the respondent’s affidavit as evidence which was relied upon on the question of reasonable excuse. The respondent, by her counsel, stated her response to each of the allegations. The evidence on which she relied was considered. In addition, the Court arranged a s 11F child inclusive conference and adjourned the matter over from 28 February to 1 March before proceeding further with the matter. Counsel for the respondent was invited to make any submissions considered to be appropriate. The question of contravention being admitted, I then proceeded to determine the question whether the respondent had discharged the onus of establishing a reasonable excuse.
In Snedden v Minister for Justice for the Commonwealth of Australia (2014) 230 FCR 82, [177], Middleton and Wigney JJ observed that:
The rules of procedural fairness do not have an immutably fixed content. . . What will be both sufficient and necessary to ensure a fair hearing in any given case will depend on, and vary with, the context in which a decision-maker acts. . .
The respondent’s submissions on the stay application do not illuminate me as to what want of procedural fairness was denied to her. To the contrary, without derogating from the importance of r 25B.04, my review of the transcript indicates that the requirements of that rule were waived: cf Caballes & Tallant [2014] FamCAFC 112, [89] (Kent J).
Fourthly, as to standard of proof, I note that s 70NAF governs the standard of proof to be applied in determining matters under Div 13A. By sub-s 70NAF(1), subject to sub-s 70NAF(3), the standard of proof to be applied in determining such matters is the balance of probabilities.
Sub-s 70NAF(2) confirms that sub-s (1) applies to the determination of whether a person who contravenes an order under the Act affecting children had a reasonable excuse for the contravention. It is also plain that the onus falls on the person alleged to have contravened an order that affects children to establish the existence of a reasonable excuse: see ss 70NDA(c), 70NEA(1)(c), 70NFA(1)(c); see also Tindall & Saldo [2015] FamCAFC 1, [37]-[38] (Finn and Strickland JJ, Bryant CJ agreeing on this issue).
By sub-s 70NAF(3), the harsher forms of penalty may not be applied unless the court has been satisfied beyond reasonable doubt that the grounds for making the order exist: Ongal & Materns [2015] FamCAFC 68, [26] (Thackray, Strickland and Aldridge JJ). I was neither referred to the legislation at any point, nor to any authority which might have been of assistance on this issue, however, it seemed to be implicit in the respondent’s submissions that it would not be open to impose any of the harsher penalties of the kind specified by sub-s 70NAF(3)(a)-(b) unless I was satisfied beyond reasonable doubt that the respondent had not established a reasonable excuse for the admitted contraventions. No submissions were made in relation to this issue on 1 March 2018.
As appears above, the issue of contravention having been admitted, the parties were generally content to proceed incrementally and to deal next with the question of reasonable excuse before proceeding to issues of penalty. The adoption of that approach was not opposed and appears to be supported by authority: Elspeth, Mark & John v Peter (Penalty and Costs) (2007) 37 Fam LR 696 (Faulks D-CJ, Kay and Penny JJ).
The point has not been reached where penalty has been addressed. It remains open to the parties to address all issues relevant to penalty, including whether, upon the proper construction of s 70NAF, it is not open to impose a harsher form of penalty unless the evidence established beyond reasonable doubt that the respondent did not have a reasonable excuse for the contraventions.
To this point, the intersection between the civil standard of proof applied by sub-s 70NAF(1)-(2) and the criminal standard applied by sub-s 70NAF(3) has not been addressed by any submissions. The better view would appear to be that the question of reasonable excuse is to be determined upon the balance of probabilities: Camden & Chalk [2009] FamCAFC 10, [14] (Warnick J). Certainly, no submissions were made in relation to this issue on 1 March 2018.
I do not consider that appellable error is demonstrated on account of a failure to address the standard of proof, particularly is that so where the issue was not the subject of any submission: cf Greer & Bedelia [2009] FamCAFC 136, [37] (Bryant CJ, Warnick and Barry JJ).
Fifthly, as to bias, I note that this issue was not raised before me. It was first raised by way of a proposed notice of appeal. The respondent seeks to complain that, by raising the issue of imprisonment, the result of the contravention application had been prejudged. The transcript confirms the context in which that issue was raised was the suggestion that a s 11F child inclusive conference may be of use. As counsel for the applicant observed, it is uncontroversial that Div 13A comprehends the imposition of a term of imprisonment: see ss 70NFB(1)(e), 70NFB(7), 70NFG.
The belated complaint that the contravention application was addressed on the basis that the contravention would be dealt with under Sub-Div F of Div 13A is baseless. I have set out above the procedural steps that were set in place to facilitate the hearing and determination of all aspects of this application. Those steps were set in place having regard to the history of the respondent having contravened the parenting Orders and the prior penalties imposed. This was not a case where, for example, it was suggested at any stage that the case was “done and dusted”: cf Gravis & Major [2010] FamCAFC 239, [57], [65].
No allegation of bias was raised at any stage until the application for a stay was made. Yet it is proposed to raise that allegation on appeal: Caballes & Tallant [2014] FamCAFC 112, [10] (Strickland), [52] (Ryan J), [134] (Kent J), citing Vakuata v Kelly (1989) 167 CLR 568; see also Michael Wilson & Partners v Nicholls (2011) 244 CLR 427, [76] (Gummow A-CJ, Hayne, Crennan and Bell JJ);Huda & Huda & Laham [2018] FamCAFC 85, [73]-[74] (Thackray, Murphy and Kent JJ). No objection was taken to the course adopted in this application.
Sixthly, in the course of submissions, counsel for the respondent stated that the application for an extension of time would be heard in October 2018 and any appeal would be heard in November 2018. In a reply submission, counsel was concerned to correct her earlier submission and for that purpose read from the text of an email from the Family Court of Australia indicating that the application for an extension of time would be heard in October 2018 at the earliest.
Counsel for the applicant opposed the application for a stay in strenuous terms pointing to the lateness of the application and that it had been made without any prior intimation that such an application would be made. It was submitted that the proposed grounds of appeal were devoid of merit and that the belated application was merely a ploy to delay the hearing and determination of the question of penalty. Counsel for the applicant argued persuasively that the bona fides of the application were open to question. I was reminded that the applicant has only ever sought that the respondent comply with the parenting Order that was made by consent.
The authorities recognise the invidious tension inherent in a judge assessing the prospects of success on an appeal from their own decision: Lockley & Bardot.[10] Whatever view I may hold as to the merit of the proposed grounds of appeal, I do not decide the application on the basis that the proposed grounds are unarguable. I was not referred to, and have not located, a decision concerning the question of stay in circumstances such as the present. Irrespective of whatever conclusion may be expressed as to the merits of the proposed grounds of appeal, the ultimate question is whether a stay should be granted.
[10] Supra, [18] (Bryant CJ, Crisford and Boland JJ).
Although I entertained grave reservations whether the respondent had satisfied the requirements for a stay, I concluded that the balance of convenience favoured a conclusion that it was preferable to do so. In reaching that conclusion I gave consideration to each of the principles stated in Aldridge & Keaton. Relevantly, by her affidavit sworn in support of the application for a stay, the respondent deposed at [38]:
I am qualified as a (occupation omitted). I am presently working part time. As the children get older I would like to work more. I am extremely concerned that if was to receive a term of imprisonment, even if it was to be suspended, this would have a detrimental effect on my ability to work and/or to obtain further employment.
When the contravention application was first listed before me, the respondent was then unemployed. When I drew attention to her qualifications as a (occupation omitted), I enquired whether returning to employment might be of benefit to the respondent both financially and personally. It seems that this has now occurred.
The respondent’s affidavit also deposed to the circumstance that her financial position was now modest such that, having not worked for a number of years, she only had $35,669 left in her savings. At the same time, the respondent’s affidavit acknowledged that the applicant continues to contribute $501 per week by way of child support payments. The respondent lives in rented accommodation.
Contrastingly, the respondent’s affidavit pointed out that the applicant had an annual income in excess of $200,000, that his new partner was employed full-time as a (occupation omitted) and that they owned two properties. Why the respondent pointed to those circumstances for the purposes of her application of a stay was not made entirely clear. However, the combined effect of the respondent’s current financial position, the wasted costs which the applicant has incurred in relation to pre-paid Christmas holidays and the imposition of any penalty inform the complexity attending resolution of the question of penalty.
While the applicant has made plain that no order is sought for the imposition of a custodial sentence, the perceived threat to the respondent’s employment is a matter which favours the conclusion that a stay should be granted. It was common ground that the fundamental purpose of imposing a penalty on a person who has contravened an Order made under the Family Law Act is to secure future observance of that Order. In particular, the imposition of a penalty would engage the principle that regard be had to the best interests of the children inasmuch as the respondent’s financial position and the risk that the imposition of a custodial sentence (albeit suspended) may have a direct impact upon her employment. While so much may be true in many cases where a custodial sentence is under consideration, in the context of the Family Law Act, the need to consider the best interests of the children and the object of securing future observance of the parenting Order raise issues which warrant particular consideration. Indeed, the best interests of the children are a significant consideration in determining whether a stay ought to be granted.[11] As I concluded that consideration of the question of penalty may potentially yield a result which could affect the children’s best interests, it seemed preferable to protect those interests pending the respondent’s application for an extension of time.
[11] Aldridge & Kent (Stay Appeal), supra, [18].
In the exercise of a discretionary judgment and having regard to the nature of the application, it would be preferable not to embark upon a penalty hearing until the respondent has made her application for an extension of time in which to appeal the order made on 1 March 2018.
Conclusion
My reservations in acceding to the application were underlined by the course which this application has taken. The contravention application has now been before the Court on four occasions, when in other circumstances it might have been heard and determined in the Duty List on 28 February 2018. The course which was adopted in relation to the hearing and determination of the application was in large measure the result of an attempt to gain some understanding of any underlying problem which was the catalyst for contravention of the parenting Order.
It is plain that the respondent now seeks a discharge of the consent orders which allow the children to spend additional time with the applicant until further order. When asked to clarify the precise relief which was sought, the respondent’s counsel confirmed that the only relief sought on the hearing was for a stay of the operation of the declaration. As noted above, an order was made by consent to facilitate the children having additional spend time with the applicant until further order: cf ss 70NBA, 70NDB. A further order, not by consent, was that the children spend time during their summer holidays for the first two weeks of January in each year. By seeking relief in her application in a case, the respondent makes plain that she wishes to secure the result that this order is vacated.
The respondent’s application in a case also seeks an order vacating the consent order that the respondent should undertake a psychiatric assessment for the purposes of obtaining a report which may be relied upon at any penalty hearing. Counsel for the respondent confirmed what was implicit in that application; namely, that the respondent has not undertaken a psychiatric assessment or obtained a report upon such assessment for the purposes of the penalty hearing that was listed for 14 September 2018. While the making of that order was not pressed before me, it seemed somewhat at odds with the submission that had been made on 1 March 2018 that it would be preferable to resolve the contravention application by other means.
I raised with counsel for the respondent whether her client would give an undertaking as a condition of the grant of the stay that she would prosecute any application for an extension of time in which to appeal and any appeal thereafter. Having regard to a suggestion raised in the course of the hearing whether the respondent had fully understood the terms of the consent order which she had signed on 2 May 2018, the matter was stood down in order that her counsel could discuss the issue further with her. Upon the resumption of the hearing, counsel for the respondent confirmed her instructions to give such an undertaking.
Many of the matters disclosed by the respondent’s affidavit in support of the stay application fortified me in the view that detailed consideration is warranted as to what other orders may be appropriate to be made upon this contravention.[12] The applicant’s submission has been for a penalty by way of suspended sentence. Other options may need to be considered. Particularly is that so in light of the respondent’s financial position. Having regard to the conclusion I have reached respecting a stay, it is undesirable to say anything further on this aspect of the matter.
[12] See ss 70NAA(2), 70NBA.
Depending upon the view taken by the Family Court, either on the application for an extension of time, or in any appeal, it will be a matter for that Court to consider whether any demonstrated error is of such a kind as to warrant appellate intervention and whether it is shown to have had a material effect on the outcome[13] or to have occasioned any practical injustice[14] to the respondent. There was real force in the applicant’s submission that he simply wanted the Order complied with and to be able to move forward. To that end, it was commendable that he had initiated mediation before filing the contravention application.
[13]Lockley & Bardot, supra, [17] citing Adamson & Adamson (2014) FLC 93-622 at [34]; see also Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82, [58], [104], [148]; SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, [52]-[59].
[14]Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, [38] (Gleeson CJ); Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326, [57] (Gageler and Gordon JJ).
For the reasons above, I concluded that a stay of the declaration should be made pending the hearing and determination of the respondent’s application for an extension of time in which to appeal from the order made on 1 March 2018.
I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 21 September 2018
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