MASSON & PARSONS
[2020] FamCA 479
•23 June 2020
FAMILY COURT OF AUSTRALIA
| MASSON & PARSONS | [2020] FamCA 479 |
| FAMILY LAW – CHILDREN – CONTRAVENTION – SANCTIONS – Application alleging multiple contraventions of final parenting orders – Where there are two children aged 12 and 11 years – Where the applicant is the biological father of the eldest child – Where the applicant abandoned numerous counts prior to the hearing – Where the applicant could not established a prima facie case in respect of some counts – Where the remaining two counts are pressed only in respect of the eldest child – Where the Court is satisfied on the balance of probabilities that the remaining contraventions are established – Where the first count is proven against both respondents, but the first named respondent’s contravention is more serious – Where the second count is proven against only the first named respondent – Where the established contraventions are sanctioned under Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth) – Where two good behaviour bonds are imposed on the first named respondent to be served cumulatively – Where no good behaviour bond is imposed on the second named respondent – Where compensatory time is ordered for the eldest child to spend with the applicant – Costs reserved. |
| Family Law Act 1975 (Cth) Pt VII, Divs 12A, 13A, ss 62B, 65DA, 69ZN, 69ZQ, 69ZX, 70NAC, 70NAE, 70NAF, 70NBA, 70NEA, 70NFA Family Law Rules 2004 (Cth) r 21.08 |
| Masson & Parsons [2018] FamCA 823 Masson v Parsons (2019) 368 ALR 583 Parsons & Masson (2018) FLC 93-846 |
| APPLICANT: | Mr Masson |
| RESPONDENTS: | Ms S Parsons & Ms M Parsons |
| FILE NUMBER: | SYC | 3963 | of | 2015 |
| DATE DELIVERED: | 23 June 2020 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | Austin J |
| HEARING DATE: | 9 June 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lawson |
| SOLICITOR FOR THE APPLICANT: | Steiner Legal Pty Ltd |
| COUNSEL FOR THE RESPONDENTS: | Ms McMahon |
| SOLICITOR FOR THE RESPONDENTS: | Harris Kelly & Associates Lawyers |
Orders
Upon finding that Ms S Parsons contravened Order 10.2.1.2 made on 3 October 2017 (as amended under the slip rule on 30 November 2017 and 23 March 2018) between 27 March 2020 and 31 March 2020, pursuant to Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth), Ms S Parsons shall forthwith enter into a good behaviour bond for the said contravention upon the following conditions:
(a) The bond shall be without surety or security;
(b)To be of good behavior for the duration of the bond, which shall include compliance with all existing and future orders made between the parties under the Family Law Act 1975 (Cth); and
(c)The bond shall be for a period of four months, commencing on the date she enters into the bond.
Upon finding that Ms S Parsons contravened Order 10.2.1.1 made on 3 October 2017 (as amended under the slip rule on 30 November 2017 and 23 March 2018) on 6 April 2020, pursuant to Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth), Ms S Parsons shall forthwith enter into a good behaviour bond for the said contravention upon the following conditions:
(a) The bond shall be without surety or security;
(b)To be of good behavior for the duration of the bond, which shall include compliance with all existing and future orders made between the parties under the Family Law Act 1975 (Cth); and
(c)The bond shall be for a period of two months, served cumulatively upon the bond entered pursuant to Order 1 hereof.
Upon finding that Ms M Parsons contravened Order 10.2.1.2 made on 3 October 2017 (as amended under the slip rule on 30 November 2017 and 23 March 2018) between 27 March 2020 and 31 March 2020, no further sanction is imposed save for that provided in Order 4 hereof.
For the contraventions set out in Orders 1, 2 and 3 hereof, pursuant to s 70NEB(1)(b) of the Family Law Act 1975 (Cth), the respondents shall ensure that the eldest child (B, born … 2007) spends compensatory time with the applicant for five extra days (each day comprising complete 24 hour periods) within the next three months, on the days nominated by the applicant in writing no less than seven days in advance.
Pursuant to s 70NEB(1)(c) of the Family Law Act 1975 (Cth), the proceedings are adjourned to 9.30 am on Friday 3 July 2020 for further procedural directions in respect of the applications respectively made by the applicant and the respondents to discharge, vary or suspend the parenting orders made on 3 October 2017 (as amended under the slip rule on 30 November 2017 and 23 March 2018).
Costs of the hearing on 9 June 2020 are reserved to Friday 3 July 2020.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Masson & Parsons has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: SYC 3963 of 2015
| Mr Masson |
Applicant
And
| Ms S Parsons and Ms M Parsons |
Respondents
REASONS FOR JUDGMENT
Background
These enforcement proceedings concern two children, now aged 12 and 11 years.
Pursuant to orders made by Cleary J under Part VII of the Family Law Act 1975 (Cth) (“the Act”) on 3 October 2017 (but twice amended under the slip rule in November 2017 and March 2018), the children live with the respondents, who are spouses in an intact same-sex marriage, and spend time with the applicant, who is the biological father of the eldest child.
On appeal, in June 2018, the Full Court of the Family Court of Australia remitted the proceedings for re-hearing and set aside Cleary J’s orders upon fresh orders being made at first-instance (Parsons & Masson (2018) FLC 93-846). The respondents then made an application for substitute interim parenting orders in August 2018, but it was dismissed in September 2018 (Masson & Parsons [2018] FamCA 823). The orders made by Cleary J were left in place pending determination of the applicant’s appeal to the High Court of Australia.
In June 2019, the High Court set aside the orders of the Full Court and confirmed the validity of Cleary J’s orders (Masson v Parsons (2019) 368 ALR 583).
The youngest child ceased spending time with the applicant as soon as the Full Court upheld the appeal from Cleary J’s orders in June 2018 and, save for a closed period of about seven weeks from March 2019, has apparently not spent much, if any, time with him since then.
The eldest child continued spending time with the applicant despite the appeal process, but the regularity of that regime was interrupted in March and April 2020. It is common ground the eldest child resumed spending regular time with the applicant from April 2020.
On 11 May 2020, the applicant filed an Application-Contravention against the respondents alleging their multiple contraventions of the operable orders in the period between May 2019 and April 2020.
The respondents resisted each and every count of contravention alleged against them.
Preliminary procedural issues
The Application was listed for hearing in a busy duty list on Monday 1 June 2020 and could not be entertained.
In that event, the applicant’s counsel asked that the Application be given the earliest available hearing date, which was in the following week.
The respondents’ counsel informed the Court that: the Application would be resisted in all respects, an application would be made by the respondents during the hearing to amend the operable parenting orders, expert evidence would need to be procured and adduced in support of their application to amend the orders, and the duration of the hearing was estimated at four days. Consequently, the respondents’ counsel sought that the hearing be fixed at a later (but unspecified) point in time.
Duration of the adjournment
The proceedings were adjourned and listed for hearing on the first available date, being Tuesday 9 June 2019. The alleged contraventions were plentiful and extended over a prolonged period of months, so prompt attention was desirable. The respondents’ application to delay the hearing beyond that date was refused.
The respondents failed to appreciate that the hearing would need to proceed incrementally, following a structured format. First, it needed to be determined if and when any orders were actually contravened as alleged. If so, it then needed to be determined whether the contraventions proven by the applicant are reasonably excused by facts and circumstances proven by the respondents. Those confined questions could and should receive speedy consideration.
Duration of the hearing
Even though the respondents imagined the proceedings were complex and deserved undivided attention over four days, at least by objective standards, that estimate was wholly unrealistic.
These proceedings are primarily aimed at the enforcement of existing orders. The parties’ substantive debate about the suitability of the orders was resolved at first instance before Cleary J in October 2017, but then by exhaustion of the appellate process before the Full Court in June 2018 and the High Court in June 2019. No proceedings have since been instituted to vary the operable parenting orders on the basis of changed circumstances.
Although the respondents foreshadowed their intended application to vary the operable orders pursuant to the power found within s 70NBA of the Act, no such application can be made within the context of the enforcement proceedings until a decision is first made about whether the contravention application against them succeeds or fails (s 70NBA(1)(b)) and, if the application succeeds, whether the provisions of subdivisions E or F of Division 13A of Part VII of the Act will then govern the sanctions to be imposed (s 70NBA(2)).
Presently, this dispute requires determination of whether the operable orders were breached on numerous occasions and, if so, whether the respondents had reasonable excuse to do so. Sanctions may follow upon any proven breach without reasonable excuse. Any question about the amendment of the operable orders should be temporarily stood to one side. Attention need only turn to the evidence which may be adduced on the ancillary question of whether the operable orders should be amended, in the children’s best interests, when that issue eventually arises.
The provisions of Division 13A of Part VII govern the enforcement dispute, meaning the proceedings remain subject to the procedural principles and powers pertinent to the conduct of child-related proceedings under Division 12A of Part VII of the Act. Accordingly, the Court must actively direct, control and manage the proceedings (s 69ZN(4)), not sit idly by, permitting the parties to dictate the terms of engagement without restraint. That mandate, subject to observance of the parties’ abiding right to procedural fairness, includes the power to determine the order in which issues are to be decided (s 69ZQ(1)(b)), to give directions about the timing of steps that are to be taken in the proceedings (s 69ZQ(1)(c)), to limit the time for evidence to be given (s 69ZX(2)(d)), to limit the time for cross-examination of witnesses (s 69ZX(2)(i)), and to limit the time for oral argument (s 69ZX(2)(c)).
Those powers were used to limit the hearing of the primary issues of “contravention”, “reasonable excuse”, and “sanction” to one day, reducing the opportunities for the parties to treat every factual discrepancy and legal issue as an opportunity for fierce forensic warfare. The hearing was fairly determined within that time. Ancillary procedural orders are made for the parties to ventilate their respective applications to amend the operable orders in due course.
Legal principles
As mentioned, the provisions of Division 13A of Part VII of the Act prescribe the manner in which a party’s alleged failure to comply with orders relating to children is assessed and sanctioned.
In this case, the respondents denied that they had breached the orders in any of the ways in which the applicant alleged. Their defence was that the applicant failed to prove their contravention of the orders, as defined in the Act (s 70NAC).
Given the respondents denial of any contravention of the orders at all, they did not assert any fall-back defence of having contravened the orders with reasonable excuse. Any question of “reasonable excuse” was therefore otiose (s 70NAE).
The procedure for the conduct of contravention hearings is prescribed by r 21.08 of the Family Law Rules 2004 (Cth), which procedure was followed.
Evidence
The applicant relied upon his affidavit filed on 11 May 2020 in support of his application. The annexures to the affidavit were not attached and only a selection of them were tendered separately.[1]
[1] Exhibit A1
Before the hearing commenced, the applicant announced his abandonment of numerous counts in his application.[2]
[2] Application-Contravention filed 11/5/20, paras 6, 7, 8, 9, 10, 11, 16, 17, 22, 23, 24 and 25
During the applicant’s cross-examination, several documents were referred to and they were tendered as exhibits by the respondents.[3]
[3] Exhibits R1, R2, R3, R4
At the close of the applicant’ case, the applicant conceded he had not established a prima facie case in relation to some counts in his application.[4] Given that concession, together with his earlier abandonment of several counts, only two counts remained for consideration.[5]
[4] Application-Contravention filed 11/5/20, paras 12, 13, 14 and 15
[5] Application-Contravention filed 11/5/20, paras 18, 19, 20 and 21
In respect of the two remaining counts, the respondents submitted there was no case to answer. The submission was only successful in so far as the two counts alleged contravention of the orders in respect of both children. The applicant only established a case to answer against the respondents on those two counts in respect of the eldest child.
The respondents then elected to adduce evidence directed to the two remaining counts. Portions of their unfiled affidavits were respectively adopted as their evidence-in-chief and were tendered as exhibits.[6] Both respondents were then cross-examined.
The residual alleged contraventions
[6] Exhibits R5, R6
Order 10.2.1.2
The applicant alleged the respondents’ breach of this order in respect of both children on one occasion in late March 2020.
Order 10.2.1.2 requires both children to spend time with the applicant on alternate weekends (from Friday until the following Tuesday morning) during school terms, unless the parties agree otherwise.
The parties did agree otherwise in respect of the youngest child. On 8 February 2020 the applicant sent the respondents an email informing them he did not intend to enforce the orders in respect of the youngest child any longer,[7] to which position they acceded. Although the parties’ subsequent correspondence sometimes referred to the children plurally, rather than to the eldest child singularly, at no time did the applicant give the respondents formal notice of his revised intention to resume enforcing the orders in respect of the youngest child. Their agreement about her in February 2020 remained intact.
[7] Applicant’s affidavit, para 48; Exhibit A1 (page 1)
For that reason, the applicant did not establish a case to answer in respect of the youngest child and the alleged contravention was pressed in respect of only the eldest child.
On 25 March 2020, the first named respondent (“the first respondent”) emailed the applicant asking him whether he was prepared to suspend the eldest child’s visits with him “…until all [the pandemic] bans are lifted”.[8] During cross-examination, the second named respondent (“the second respondent”) admitted the first respondent was also speaking on her behalf in that email.
[8] Applicant’s affidavit, paras 75-76; Exhibit A1 (page 4)
On 26 March 2020, the applicant responded to the email, refusing consent to the respondents’ request and explaining the safety measures he and his partner had implemented for the eldest child at their home.[9]
[9] Applicant’s affidavit, para 77; Exhibit A1 (page 4)
In cross-examination, both respondents conceded they well knew the applicant had not agreed to their request to suspend operation of the orders.
Under Order 10.2.1.2, the eldest child was due to spend time with the applicant from 9.00 am on Friday 27 March 2020, effected by the applicant’s collection of her from the respondents’ home at that time.
When the applicant attended the respondents’ home, the eldest child stood with the youngest child behind the locked front door and said she “…want[ed] to stay in one place while there is [a pandemic]”.[10] The first respondent then came to the door and said several times during the conversation words to the effect:[11]
Look, this is totally between you and [the eldest child] to sort out. It has nothing to do with me.
[10] Applicant’s affidavit, para 81
[11] Applicant’s affidavit, paras 82, 86
The first respondent admitted in cross-examination she did say words to that effect, even though she could not remember “word-for-word”.
The applicant disagreed and replied to the first respondent,[12] as she admitted in cross-examination and more generally in her evidence-in-chief:[13]
Actually [first respondent], this has nothing to do with [the eldest child]. It is up to the adults, and really, it’s not even up to us. There are court orders and it is your responsibility to ensure that [the eldest child]… come into my care this morning…
[12] Applicant’s affidavit, para 83
[13] Exhibit R6, para 138
The applicant told the eldest child to go and get her bag, but she remained standing at the door.
The applicant alleged the first respondent did not open the door and she did not ask, encourage or direct the eldest child to go with him. I accept his evidence as correct.
The first respondent made several contrary claims in cross-examination, such as:
I did direct [the eldest child] to leave with [the applicant].
I tried my best [to get the eldest child to go with the applicant].
I did everything I could short of physically restraining her.
I reject such evidence as being unreliable, essentially for four reasons.
First, the first respondent knows the applicant seriously doubts the authenticity of her encouragement of the eldest child to spend time with him, so she must have realised how overt evidence of her having done so was intrinsic to this dispute about her contravention of the orders. Nonetheless, the first respondent did not give any evidence-in-chief at all about her attempts to make the eldest child go with the applicant that morning.[14] Her oral evidence, in that respect, appeared to be fabricated, designed to shore-up her position against an attack in cross-examination about the ruse of appearing compliant with the orders when she was really leaving the decision for compliance entirely to the child. The applicant was correct to say to the first respondent at the time, and in submissions at the hearing, that the child should not be empowered to decide whether she should comply with the orders found by the Court to be in her best interests.
[14] Exhibit R6, paras 138-141
Secondly, the first respondent’s oral evidence of having tried her best and having directed the eldest child to go with the applicant is entirely inconsistent with an email she sent to the applicant several days later, on 2 April 2020, in which she said both her and the second respondent “support” the eldest child’s decision not to go with the applicant during the current pandemic and they “believe” it was in the eldest child’s best interests to remain at home with them for the time being.[15]
[15] Applicant’s affidavit, para 90
The first respondent could not rationally explain, either in evidence or submissions, how she could simultaneously support the eldest child’s decision not to visit the applicant and honestly believe that decision was in her best interests, but still try her best to ensure the eldest child did in fact visit the applicant.
Thirdly, the first respondent inferentially considers the eldest child is now old enough to make her own decisions about whether she spends time with the applicant, without parental direction. She said in cross-examination:
[The eldest child] still has a voice and she needs to be able to express it.
The clear implication is that she does not intend to oppose the eldest child’s stated views and, since it was uncontroversial the eldest child did say to the applicant on 27 March 2020 that she did not want to go with him, it stands to reason that the first respondent was not inclined to try and force her.
Fourthly, the first respondent’s evidence was internally inconsistent.
The first respondent was impelled to admit in cross-examination that, in the affidavit she swore in readiness for her defence of this contravention application, she deposed:
The orders are silent as to any positive obligation upon me to do anything.
Notwithstanding her asserted belief that she is not personally obliged by the orders to do anything, in response to pressure in cross-examination she made contrary remarks like:
I believe I have an obligation, whether or not it’s in the orders.
My duty is to adhere [to the Court orders].
In fact, there can be no doubt at all about both respondents being bound by a positive obligation to implement the orders, even against the eldest child’s resistance. Pursuant to the provisions of ss 62B and 65DA(2) of the Act, the orders made by Cleary J annexed an information sheet about the parties’ obligations under the orders and the consequences of non-compliance. That annexure includes the following statement:
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so.
It is clear that, given acceptance of the applicant’s evidence in preference to that of the first respondent in the event of conflict, the first respondent did not discharge her obligation to positively encourage the eldest child to spend time with the applicant. On the balance of probabilities, she made no reasonable attempt to comply with the order and the contravention is established against her on that basis (s 70NAC(a)(ii)).
I accept the applicant’s evidence that he left the respondents’ house that day without the eldest child because he concluded the first respondent was not going to take positive steps to implement the order.[16]
[16] Applicant’s affidavit, para 85
The applicant did not let the matter rest there. He immediately instructed his lawyer to write to the respondents about the incident.[17] The letter was sent by the applicant’s lawyer that day by email to the respondents, presumably during office hours.[18] Significantly, the letter demanded that the eldest child be immediately delivered by the respondents to the applicant, it made plain the applicant’s expectation that the eldest child would resume spending time with him in accordance with the orders, and it threatened contravention proceedings if not.
[17] Applicant’s affidavit, para 88
[18] Exhibit A1 (pages 5-10)
The respondents did not bother to reply to that letter,[19] but at 7.13 pm that night the first respondent sent an email directly to the applicant saying:[20]
Just touching base to let you know we are continuing with our efforts to encourage [the eldest child] to spend time with you…It was clear that our encouragement wasn’t going to change her mind today.
…
If you want to visit please just call before you come over so that we can be sure that [the eldest child] is available.
[19] Applicant’s affidavit, para 88
[20] Exhibit R3
Given the email was sent only several hours after their receipt of the letter from the applicant’s lawyers, it is difficult to resist the inference that the first respondent was motivated to quickly try and cover her tracks and avert suspicion of her contravention of the orders. Most probably, it was disingenuous. If she genuinely wanted the eldest child to spend time with the applicant she could have driven the child over to the applicant’s home, just as his lawyer demanded. There was no point in the applicant returning to the respondents’ home that night as he would rightly have expected to again be rebuffed. The first respondent said in cross-examination she was “prepared to support” the applicant, but that is not manifest from her conduct. She could have demonstrated her support by driving the child over. The visit was due to last four days and she made no reasonable attempt to comply with the order for the duration of that time.
For her part, the second respondent openly admitted she had a positive obligation to encourage the eldest child’s relationship with the father and to do everything in her power to facilitate that objective, including by encouraging her to spend time with the applicant. She accepted it was not up to the eldest child to decide whether she spends time with the applicant. She accepted the applicant rejected the respondents’ request to suspend the eldest child’s visits with him and so, when she left for work on the morning of Friday 27 March 2020, she expected the eldest child would be collected by the applicant later in the morning. She left the child’s exchange in the hands of the first respondent and said goodbye to the eldest child as she departed, not expecting to see her for the next few days.
When the second respondent returned home from work that afternoon, she found the eldest child at home. She did not act to rectify the situation. She admitted in cross-examination she did not deliver the child to the applicant, even though there was nothing to stop her doing so. She was content to let the situation lie. Even though the eldest child professed fear of the pandemic as the reason for her resistance to spending time with the applicant, the second respondent knew the applicant had ensured safe conditions at his house and told the child so,[21] in which event there was no impediment to the child’s delivery to the applicant.
[21] Exhibit R5, para 43.7
The second respondent insisted in cross-examination that she did support the orders requiring the eldest child to spend time with the applicant, but her assertion did not match either her conduct when she arrived home on 27 March 2020 or the contents of the email sent on 2 April 2020 by the first respondent on behalf of both respondents, in which they stated their support for the eldest child’s decision to resist spending time with him.
On the balance of probabilities, the second respondent made no reasonable attempt to comply with Order 10.2.1.2 from the time she arrived home from work on the afternoon of 27 March 2020 until the eldest child’s visit was due to conclude on 31 March 2020 (s 70NAC(a)(ii)). The contravention is sustained against her on that basis.
Order 10.2.1.1
The applicant alleged the respondents’ breach of this order in respect of both children on one occasion in early April 2020.
Order 10.2.1.1 requires both children to spend time with the applicant from Monday afternoon until Tuesday morning each alternate week during school terms, unless the parties agree otherwise.
For the same reasons given above, the applicant failed to establish a case to answer in respect of the youngest child and the alleged contravention was pressed in respect of only the eldest child.
As already explained, the eldest child failed to spend time with the applicant in the period between 27 and 31 March 2020. The respondents were on notice from the applicant’s lawyers that he expected the next visit on Monday 6 April 2020 to proceed without incident.
In the knowledge gained from the week before of the eldest child’s resistance to spending time with the applicant because of her apprehension about the pandemic, together with the respondent’s expressly stated support of her position on that issue,[22] the applicant emailed the respondents on 3 April 2020 providing them with a copy of the official NSW biosecurity directive. The respondents did not dispute that the government directive did not stand in the way of implementation of the subject orders.[23] Clearly, the orders could be lawfully implemented.
[22] Applicant’s affidavit, para 90
[23] Applicant’s affidavit, para 91
Even though the respondents both asserted they supported the eldest child’s decision to resist contact with the applicant until the pandemic subsides because they were anxious to ensure conformity with “government directions”, neither respondent could rationally explain why they failed to ensure the orders were implemented on 6 April 2020, when there could be no doubt they would not be acting contrary to government directions by implementing the orders.
When asked whether she read the government biosecurity directive sent to her by the applicant on 3 April 2020, the first respondent airily said she “would have skimmed over it”. Why she paid it such little heed when their adherence to government directives was asserted to be so imperative was left unexplained.
The second respondent admitted she did not research the applicable government directives and did not seek advice about it. Similarly, she had no sensible response to why she disregarded the applicant’s email sent on 3 April 2020.
On Monday 6 April 2020, the applicant attended the respondents’ home at 9.00 am as the order required. The eldest child answered the door and told him she was not going with him. The applicant asked her to summon the first respondent so they could discuss it and requested the child to go and retrieve her bag.
When the first respondent came to the door, the applicant said:[24]
…[The eldest child] should be spending time with me in accordance with the Orders. If I come to pick them up and you don’t take all steps in your power to ensure the come [sic] into my care, then it is a breach of the orders. There are clear government and family court directions about complying with orders despite the [pandemic] situation, so this isn’t a decision for you, me or the [eldest child] to make. The Courts have made it clear and all we have to do is follow the Orders.
[24] Applicant’s affidavit, para 97
The first respondent did not deny the applicant said that to her.
The first respondent admitted she said to the applicant:[25]
…If she won’t go, you need to talk to her and work it out with her.
[25] Exhibit R6, para 143
The applicant deposed the first respondent told him the problem was for him to sort out alone with the eldest child and it had nothing to do with her.[26] The first respondent denied she said words to that effect on that particular occasion, but did concede she has said words to that effect on other occasions. I accept she said it then too. Irrespective of that factual dispute, again, the first respondent was empowering the eldest child to make her own decisions. The first respondent was absolving herself of responsibility to ensure the eldest child went with the applicant.
[26] Applicant’s affidavit, para 104
The first respondent said in cross-examination that she told the eldest child she needed to go with the applicant, whom she referred to by his Christian name rather than the epithet “Dad”, because they “had to comply with the orders”. I do not accept she did so, for reasons similar to those given in respect of the previous contravention. In particular, she did not depose to doing so anywhere in her evidence-in-chief.[27]
[27] Exhibit R6, paras 143-149
The first respondent also said in cross-examination:
I wanted [the eldest child] to go with [the applicant].
I do not accept that either. The sentiment cannot be readily reconciled with the question she posed to the applicant later in the day in these terms:[28]
Why don’t you just try listening to the kids
[28] Exhibit R6, para 148
Her point was that, if the applicant listened to the eldest child’s view, he would realise she didn’t want to go with him and he would relent and let her stay.
The first respondent’s assertions that, first, she wanted the eldest child to go with the applicant, and secondly, she told the eldest child to go with him at the time are also inconsistent with the applicant’s unchallenged evidence that the first respondent said to him:[29]
Please respect our wishes to keep the girls safe during this time. We believe that it’s best they stay in our care until the corona virus has passed.
[29] Applicant’s affidavit, para 99
The applicant departed because he perceived, reasonably, the first respondent would not ensure implementation of the order.
To that point in time, the first respondent made no reasonable attempt to comply with the order (s 70NAC(a)(ii)) and so the contravention is sustained against her.
Later in the day, at 1.42 pm, the first respondent sent the applicant an email saying:[30]
You sent the girls upstairs this morning could you please advise us when you will return to collect them [sic].
[30] Applicant’s affidavit, para 101; Exhibit R4, pages 50-51
The email was, in all probability, disingenuous. The suggestion that the applicant should come and collect both children was, frankly, fatuous given the long history surrounding the youngest child’s failure to submit to the orders. Additionally, the email implies the applicant earlier sent the children upstairs before he departed because he did not really want to take the eldest child away with him. That is equally absurd. The first respondent was impelled to admit in cross-examination that she well knew the applicant asked the children to go upstairs so they would not be privy to his discussion with the first respondent about them at the front door. Most likely, the email was another attempt by the first respondent to cover her tracks and to deflect criticism.
The applicant responded to her email almost immediately in these terms:[31]
Just to be clear when we arrive to pick the children up and you do not facilitate the change over, our departure is not a consent to time not taking place.
…You confirmed you were not going to facilitate the contact or follow the orders so we left.
…we are happy for you to drop both of the girls over this afternoon, alternatively I am happy to come and get them now providing you can confirm they will be handed over.
[31] Applicant’s affidavit, para 102; Exhibit R4, page 50
The first respondent was wedged. The applicant confirmed she did not facilitate implementation of the order earlier that morning and invited the first respondent to bring the children to him. The first respondent answered by email. She did not dispute she failed to facilitate implementation of the order. While she did not offer to take the children around to the applicant, she did invite him back to collect both children.[32]
[32] Exhibit R4, page 50
The applicant returned to the respondents’ home at 3.40 pm that day. The first respondent protested she was not withholding the children from him, but said the applicant had to solve the problem with them without her intervention.[33]
[33] Applicant’s affidavit, para 104
The applicant admitted in cross-examination that, this time, both children went across the street to discuss their feelings with him. The youngest child soon returned to the house, but the eldest child remained with him. The applicant conceded that, with the benefit of hindsight, he could have just then driven off with the eldest child, but he was conscious she did not then have her bag with her and he knew she was worried about her younger sister, who had just returned to the house. But that was his decision. By then, the first respondent had at least facilitated the eldest child’s departure from the house with the applicant. His decision not to take her with him, sensible as it might have been in the circumstances, cannot be reasonably visited upon the first respondent. Her contravention of the order ceased at around 4.00 pm that day.
The second respondent departed the house that day at 7.00 am for work. She knew the eldest child was upset about the prospect of spending time with the applicant, but she left the exchange in the first respondent’s hands.[34] The applicant submitted the second respondent should have remained at home until 9.00 am that day to personally ensure the order was implemented, but that submission is rejected. The second respondent’s employment required her departure well before 9.00 am. It was not unreasonable to leave the matter to the first respondent. There is room for considerable doubt about whether the second respondent truly believed the eldest child would be successfully transferred into the applicant’s care that day, but I am not satisfied the applicant has proven the contravention against the second respondent, either by her aiding and abetting the first respondent’s contravention (s 70NAC(b)(ii)) or by her personally making no reasonable attempt to comply with the order (s 70NAC(a)(ii)).
[34] Exhibit R5, paras 44.2, 44.3
By the time the second respondent arrived home from work that day, the applicant had already attended the respondent’s home for a second time and departed voluntarily without the eldest child, after she had been in his company outside the house and across the street. It could not be sensibly contended the second respondent then bore an obligation to drive the eldest child over to the applicant’s home. Unlike the first contravention, this visit was for one night only and was due to conclude at 9.00 am the next morning.
Sanctions
The contravention of Order 10.2.1.2 on 27 March 2020 is proven against both respondents on the balance of probabilities (s 70NAF(1)), though the first respondent’s contravention was objectively more serious than that of the second respondent.
The contravention of Order 10.2.1.1 on 6 April 2020 is proven against only the first respondent on the balance of probabilities, though on that occasion it was a less serious form of contravention than the first, because she attempted to rectify her default after several hours.
The Act prescribes two levels of sanctions for contraventions of orders without reasonable excuse. The first category falls under Subdivision E and the second category under Subdivision F of Division 13A of Part VII.
Subdivision E applies if no previous sanction has been imposed for a past contravention or if, irrespective, the Court considers it is more appropriate to apply Subdivision E (ss 70NEA(1), (2), (3); and s 70NFA(4)).
Subdivision F applies if the respondent’s contravention manifests serious disregard of the obligations created by the subject order (s 70NEA(4); and ss 70NFA(1), (2)).
These contraventions are the first established against the respondents. The applicant conceded the established contraventions should be sanctioned under Subdivision E of Division 13A.
None of the sanctions set out within s 70NAF(3) are contemplated, so there is no need to make relevant findings beyond reasonable doubt.
The applicant submitted that good behaviour bonds of two years duration should be imposed for any proven contravention and, in addition, make-up time should be ordered.
The respondents instead submitted that make-up time would be “gladly offered”, but there was no need for any other form of sanction at all upon either of the respondents.
Neither submission is accepted in entirety.
A good behaviour bond of four months duration will be imposed upon the first respondent for the first contravention on 27 March 2020 and a good behaviour bond of two months duration for the second contravention on 6 April 2020. The differentiation of term reflects the greater objective seriousness of the first contravention. Neither bond should be very lengthy because the eldest child has resumed compliance with the orders. Nonetheless, the imposition of good behaviour bonds is appropriate to induce the first respondent’s continuing compliance with the orders and to deter further breaches. It was common ground she is the respondent most often responsible for ensuring the implementation of the orders. She is forewarned that, in the event of future proven contraventions, she will likely face more onerous sanction under Subdivision F of Division 13A.
The good behaviour bonds will be served cumulatively, not concurrently, as the contraventions were of two different orders on two different occasions.
There is no need for the bonds to be conditioned by security or surety.
By contrast, no good behaviour bond is imposed upon the second respondent for her contravention of the order on 27 March 2020. Her personal circumstances are quite different to those of the first respondent. Her role in the implementation of the orders on that occasion was subsidiary to the first respondent. It was also contended, without challenge, that the second respondent’s employment in a particular form of public service might be compromised if she is encumbered by the imposition of a good behaviour bond. It would be unduly severe to impose a bond and thereby take such risk. The finding of her contravention will be enough to expose her to the potential of more onerous sanction under Subdivision F of Division 13A if another contravention is proven against her.
For the dual contraventions on 27 March 2020, make-up time of four nights will be ordered for the eldest child. For the single contravention on 6 April 2020, make-up time of one night will be additionally ordered. The respondents are ordered to present the eldest child to the applicant for five extra nights, at the election of the applicant notified to them in writing, within the next three months.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 23 June 2020.
Associate:
Date: 23 June 2020
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