May and May

[2019] FCCA 671

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAY & MAY [2019] FCCA 671

Catchwords:
FAMILY LAW – Contravention – contravention of parenting proceedings – whether father contravened orders of 10 April 2017 – whether reasonable excuse.

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Childers & Leslie [2008] FamCAFC 5

Applicant: MS MAY

Respondent: MR MAY

File Number: NCC 1521 of 2016

Judgment of: Judge Betts

Hearing date: 25 February 2019

Date of Last Submission: 25 February 2019

Delivered at: Newcastle

Delivered on: 25 February 2019

REPRESENTATION

Counsel for the Applicant: Mr Bithrey

Solicitors for the Applicant: Gillard Family Lawyers

Counsel for the Respondent: Mr Boyd

Solicitors for the Respondent: Bryant Mckinnon Lawyers

THE COURT ORDERS THAT:

Upon finding that:

1. on 4 August 2017, the Father, without reasonable excuse, contravened order 4(a)(i) and order 6 of the Orders contained in annexure “A” to the orders of 10 April 2017 (Count 1);

2. on 18 August 2017, the Father, without reasonable excuse, contravened order 4(a)(i) and order 6 of the Orders contained in annexure “A” to the orders of 10 April 2017 and the court being further satisfied beyond a reasonable doubt that the Father behaved in a way that showed a serious disregard of his obligations under the order (Count 2). 

3. In respect of Count 1, pursuant to section 70NEB(1)(a) of the Family Law Act, the Father is ordered to attend a post-separation parenting program within four (4) months of the date of this order.

4. In respect of Count 2, the question as to what (if any) orders should be made pursuant to section 70NFB of the Family Law Act is adjourned to 23 May 2019 at 9:30am, two (2) hours allocated.

5. The Mother’s costs of today are reserved.

6. In relation to Count 2:

   (a)         the Mother is to file and serve an affidavit by close of registry filing on 11 March 2019, setting out the costs order she seeks and the basis for same;

   (b)  the Father is to file and serve any affidavit in response by close of registry filing on 25 March 2019.

   (c)    By close of registry filing 11 March 2019, the Mother is to file and serve a Response, Affidavit and Notice of Risk in relation to the substantive parenting proceedings instituted by the Father.

7. The substantive parenting proceedings are adjourned to 9:30am on 23 May 2019 for Directions Hearing and possible interim hearing depending on the Court’s available hearing time on that day, NOTING that the Mother’s counsel advises that she will apparently be relying upon the so-called principle in Rice & Asplund to submit that the Father’s Initiating Application should be dismissed.

8. The settled reasons for judgment of today are to be provided to the parties.

IT IS NOTED that publication of this judgment under the pseudonym May & May is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1521 of 2016

MS MAY

Applicant

And

MR MAY

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been revised from the transcript so as to make them more readable.

Background:

1. These are contravention proceedings filed by the applicant mother, Ms May, against the respondent father, Mr May, concerning his alleged contravention of parenting orders entered into by consent between the parties on 10 April 2017 (“the parenting orders”).

2. Pursuant to the parenting orders, their child [X] (born … 2006) lives with the father and spends defined time with the mother, which includes weekend time and school holiday time.

3. Relevantly, the mother’s contravention application alleges two (2) specific contraventions of the orders relating to weekend time:

   (a)That on 4 August 2017 at 3.30 pm, the father, without reasonable excuse, failed to deliver the child to the changeover location … (Restaurant) – resulting in the child not spending that weekend with the mother;

   (b)That on 18 August 2017 at 3.30pm, the father, without reasonable excuse, failed to deliver the child to the changeover location (… Restaurant) – resulting in the child not spending that weekend with the mother.

4. In this respect, order 4(a)(i) of the parenting orders provides for the mother’s weekend time to commence at 3.30pm on the Friday and conclude at 8am on the following Monday.  Order 6 provides that changeovers occur at …. Restaurant. 

The hearing:

1. At the hearing of this proceeding Mr Bithrey of counsel represented the applicant mother; Mr Boyd of counsel represented the respondent father. 

2. Mr Bithrey read and relied upon the mother’s Application for Contravention filed 9 February 2018 and the affidavit of the mother in support filed 9 February 2018, both of which I have read and considered. 

3. Mr Boyd on behalf of the father conceded that the father had not made the child available at the handover location on the days in question, thus establishing a prima facie case that the father had breached the orders.  However, the father’s case is that he had a reasonable excuse on each occasion for not bringing the child. 

4. In the circumstances, pursuant to the procedure set out in rule 25B.04 of the Federal Circuit Court Rules, the mother was first cross-examined by Mr Boyd. At the conclusion of her cross-examination, a prima facie case having been established, the father then entered the witness box.  He had sworn an affidavit on 25 February 2019, and he confirmed the truth of that document.  That said, much of his affidavit was in fact struck out by agreement on the basis that it was not relevant to the contraventions that were alleged against him.

5. The father was then cross-examined by Mr Bithrey. 

6. In further support of his case, the the father also relied upon a Child Inclusive Conference Memorandum prepared in the present proceedings.  That said, most of that document was struck out on the basis of relevance.

7. At the conclusion of the evidence, I then heard submissions from both counsel as to the appropriate way in which to determine this matter. 

The law:

1. The mother’s contravention application is brought pursuant to Division 13A of Part VII of the Family Law Act (“the Act”).

2. Relevantly to this case, s.70NAC provides as follows:

   “Meaning of contravened an order

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

   (a)where the person is bound by the order - he or she has:

   (i)   intentionally failed to comply with the order; or

   (ii)  made no reasonable attempt to comply with the order.”

3. Section 70NAE of the Act provides that a person who would otherwise be in contravention of an order may in various circumstances be taken to have had a “reasonable excuse” for such contravention.

4. One such circumstance is set out in s.70NAE(2) which provides for a reasonable excuse if the person contravened the order because, or substantially because, the person did not at the time of the contravention understand the obligations imposed by the order on the person who was bound by it and that the court is further satisfied that the respondent ought to be excused in respect of the contravention. 

5. This particular subsection was not relied by the husband’s counsel and I do not consider that it has any application to this case. 

6. Section 70NAE(5) also specifically provides for a reasonable excuse for breach of a “contact” order where the person alleged to have contravened the order believed on reasonable grounds that not allowing contact was necessary to protect the health or safety of a person and that the period of “no contact” was for no longer than was necessary in order to protect the health or safety of the person referred to.

7. Again, this particular subsection was not relied upon by the husband’s counsel and I do not consider that it has any application to this case. 

8. However, these statutory examples of circumstances giving rise to a “reasonable excuse” in s.70NAE do not purport to cover the field. The section provides that the examples given therein are inclusive only. Each case inevitably turns upon its own facts and the potential range of reasonable excuses, in my view, is very broad indeed, having regard to the individual facts of cases that come before the court.

9. That said, the definition of “reasonable excuse” is not unlimited.  In that regard the mother’s counsel helpfully referred me in the course of argument to a decision of Warnick J (sitting as the Full Court) in the matter of Childers & Leslie [2008] FAMCAFC 5 and in particular I refer to paragraphs 24, 28 and 29 of his Honour’s reasons for judgment. Essentially his Honour, when considering the “health and safety” example set out in section 70NAE(5), made it clear that when Parliament specifically defines a reasonable excuse it is not open to a court to adopt too loose a test on the facts of any case before it. That is to say, the court cannot simply apply some general standard of fairness or reasonableness but must regard the defence or excuse, as it were, as falling within the umbrella of what the Act has specifically laid down. There is no room for “palm tree” justice.

10. The court’s power to make orders in respect of “less serious contraventions” is provided for in Division 13A, Subdivision E. The court’s power to make orders in respect of “more serious contraventions” is found in Division 13A, Subdivision F. 

11. Pursuant to s.70NAF the standard of proof to be applied is the balance of probabilities.  The applicant has to prove the contravention on balance and the respondent has to prove the existence of any reasonable excuse on balance.  However, if the court is contemplating various sanctions (including a fine, a term of imprisonment or a community service order) then the court must be satisfied beyond a reasonable doubt that the grounds exist for making the order.

12. The court has power to vary orders in the event that it finds that there has been a contravention with a reasonable excuse established. 

Consideration of the alleged contraventions:

1. The evidence is of relatively short compass in this case. 

2. To recap, the parenting orders were made by consent on 10 April 2017.  Thereafter, the mother had been spending time with [X] pursuant to the parenting orders up to 30 June 2017, including having regular text communication with her. 

3. It is common ground that things went awry on 30 June 2017.   Although this pre-dates the alleged contraventions in this case, it provides relevant factual context to what later occurred.

4. On 30 June 2017, the mother was due to commence a week of holiday time with [X] pursuant to the parenting orders.  The mother’s evidence is that she was unable to attend changeover that day because of her mental state - she was experiencing low mood and feeling depressed.  She had consulted her general practitioner, Dr A, who had prescribed her a particular medication to stabilise her mood.  Her evidence is that at that time she was experiencing adverse physical side-effects from the medication including dizziness, nausea, burning stomach pain and drowsiness. 

5. None of this evidence was challenged and I accept that evidence. 

6. On 30 June 2017 the mother was still experiencing low mood but as well she felt physically unwell.  She admits that she did not attend … Restaurant for changeover on 30 June 2017.  She received a text message from the child as well as a text message from the father, who were waiting for her there. 

7. The mother did not respond to either of those messages.  She says at the time that she did not do so because she felt so unwell.  It is clear that the father and [X] were left waiting at the handover point on 30 June 2017 and that the father then had to take [X] back home with him. 

8. The mother did not make any contact with [X] over the next week;  instead [X] spent her holiday time with the father.  It also appears clear on the evidence that in the intervening weekend after the child had returned to school, being the weekend commencing Friday 21 July 2017, that she again did not spend any time with the mother.  I note here that the mother had still not made any contact with [X] up to that point.  Nor does she allege any contravention in this regard; the mother herself did not attend at changeover for that weekend.

9. [X] was at that time eleven (11) years old and it is overwhelmingly likely that she was, at the very least, disappointed in her mother, if not distressed. 

10. The mother first contacted [X] again on 27 July 2017, some twenty-seven (27) days after she was meant to have collected her for her one week holiday visit on 30 June. 

11. It is quite clear that the mother did not want to explain to [X] what was happening, namely, that the mother had by then been diagnosed with Bipolar II Disorder.  She wanted to explain this to [X] either over the telephone or in person. 

12. [X] was resistant to communicating with her. 

13. When challenged in the witness box as to why she had not made contact with [X] before 27 July, the mother agreed that she was aware that [X] did not want to speak to her at that time.  It seems to me from watching the mother give evidence that her preference was to pretend that there was nothing happening and to hope that the child simply “got over it”.  When asked if it was a “complete surprise” that [X] no longer seemed to want to exchange text messages with her, the mother conceded that it was not. 

14. The father’s counsel called for the mother’s text messages to the child around this time - from which it appears that there were a number of occasions when [X] texted her mother that she did not want to see her. 

15. In that sense, in the leadup to the first alleged contravention of 4 August 2017, it would be fair to say that the mother had herself failed to comply with the parenting orders and that as a result the father’s obligation to ensure the child’s future attendance at changeovers in compliance with the orders had been rendered much more difficult. 

16. That said, it is also quite clear from the material before me that the father did little to dissuade [X] from any adverse view about her mother. 

17. Indeed, the mother’s counsel submits that the father “seized upon” the mother’s non-attendance on 30 June 2017 and took advantage of that situation so as to effectively cut the child out of the mother’s life. 

18. The unchallenged evidence of the mother is that on 2 August 2017, some two (2) days prior to the first alleged contravention, the father had sent her the following text message:

    I don’t know how many times you have to be told this before it sinks in – [X] has told you repeatedly and in words that can’t be misunderstood and I’ve also relayed her feelings more than is necessary to get the message across.  She doesn’t want to see you or talk to you.  She is refusing to see you or spend any time with you.  If you want to waste your time and money coming up here on Friday that’s your choice but it won’t change the situation.  You can keep trying to blame me for what you have done but it won’t change anything.  [X] is refusing to see you. 

Count 1:

1. The mother attended … Restaurant at the appointed time on 4 August 2017.  Changeover was due to occur at 3.30pm.

2. The father concedes that he did not attend changeover and nor did [X].  The mother sent him a message indicating that she was waiting at the restaurant.  The father did not immediately respond to that message. 

3. It was only when the mother sent a second text message at just after 4.01 pm that the father then responded by text. The mother’s unchallenged evidence is that the father’s response was in the following terms:

   Ms May, [X] has told you more times than I can count that she will not spend any time with you.  I have also passed this on a number of times as well.  I have just spoken to her again.  She is refusing to see you or talk to you.  I can’t make this any clearer.

4. The father’s affidavit evidence in support of his claim of reasonable excuse is remarkably “thin”.  In fact in these reasons I will read it in its entirety:

   1. I am the respondent in the contravention proceedings.  Our daughter [X], who is the subject of this case, will turn 13 years old next month.

   2. The problems between [X] and her mother have been longstanding.  As [X] got closer to the end of primary school and was becoming more independent she started to refuse going on contact. 

   3. As far back as 4 August 2017 I packed [X]’s bag for weekend contact.

   4. [X] shut herself in her room and would not let me or her sisters into the room.  She became very upset.  The only way I would have been able to get her in the car was to physically restrain her and force her.  Given her age at that time I did not think that it was appropriate.

   …

   7. I’ve continued to reassure [X] that it is important for her to try and restore a relationship with her mother.

5. The father admitted in cross-examination that the bedroom door did not have a lock.

6. His evidence in cross-examination was that in the leadup to the changeover time he could not physically force his way into [X]’s room - as [X] had effectively wedged (or barricaded) herself between the door and the bed.  Nor could [X]’s older sisters (aged 17 and 21) gain entry to the room. 

7. I note that at this time neither of those sisters have any relationship, or any significant relationship with the mother. 

8. The father’s evidence was that he told [X] that she should be going to see her mother and he accepted that her behaviour towards him was defiant.

9. Curiously but significantly, the father accepted that after this episode, when it was clear that [X] was not going to be seeing her mother, that he did not in any way chastise or discipline her for her defiant behaviour.  When challenged as to whether he thought that [X] had in fact been “naughty” on that occasion - this being the exact term put to him - the father responded “no”.  He reasoned that [X] was simply very upset.

10. In re-examination, when asked what he was actually saying to [X] during this confrontation when she was barricaded in her room, the father’s response was that he was telling [X] that she “had the right to see her mother if she wanted to”.[1] 

    [1] My emphasis.   

11. The words “if she wanted to” connoted that [X] had a choice. 

12. The father gave the child that message against the backdrop of:

    (a)his own text messages to the mother that it would be a waste of her time to even attend at the changeover location;

    (b)the father’s observations to the Family Consultant recorded in the Child Inclusive Conference Memorandum, page 2, last bullet point - in which the father explained to the Consultant that he was encouraging the child to go, telling her “she is still your mother”.[2]

    [2] My emphasis.

13. The parenting orders contained a notice in the standard form pursuant to section 65DA(2) of the Act. Relevantly, under the heading “Your Legal Obligations” the notice said:

    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. 

14. I am of the view that the father did not take all reasonable steps to secure the child’s attendance on that day as he was required to do by the parenting order.  It is quite clear to me from the father’s evidence that he did not do all he could to encourage the child to go to see her mother. 

15. This is precisely the obstacle that the father faces in circumstances where he has the onus of satisfying me on the balance of probabilities that he had a reasonable excuse for contravening the orders.  He carries the onus of proof and his evidence of “reasonable excuse” falls short. 

1. To some extent the mother had precipitated this problem by her actions and inactions of 30 June 2017 – not attending the changeover location and then ignoring the child’s text message that day asking when she would be collecting her.  She then compounded it by not making any contact at all with the child until 27 July 2017.   No doubt difficulties had set in prior to the events of 4 August 2017, as is evident from the father’s own text messages to the mother. 

Count 2:

1. In relation to count 2, the events of 18 August are in a sense even more straightforward.  The father did not attend the changeover location.  His affidavit is silent as to what happened on that day. 

2. Having regard to the evidence before me, I can only take the view that he regarded it as a fait accompli that the orders were no longer going to be complied with following the child’s earlier non-attendance on 4 August 2017.  There is no other logical way that I can interpret his actions. 

3. I would specifically refer to the father’s text message to the mother of 6 August 2017, sent some two (2) days after the first contravention and some twelve (12) days prior to the second alleged contravention of 18 August 2017. 

4. The father’s text message is set out in paragraph 30 of the mother’s affidavit and it reads as follows:

   Ms May, [X] made it really clear to you yesterday how she feels.  Continually hounding all of us is just making all three of the girls angry.  None of them are going to talk to you, no matter how many times you try.  Maybe it’s time to step back and assess yourself and what you have done to all of us for many years.  You need to take responsibility for your actions and start putting blame where it really belongs.  You have always let the wrong people influence you and control you, which is why you’re in the mess you have made.  Whether you want to believe it or not, this is exactly what they wanted.  Now they have achieved it, do you really think they give a damn about you? Now you have driven our children from your life, do you think they care?  The three people who should’ve been the most important part of your life never even came a distant second.  I think it’s time you got some proper counselling and probably even medical help that none of them have any input into, and then maybe you can build bridges with the girls.  It’s time to stop playing their psycho games, do the right thing and face up to reality.

   (my underlining)

5. It is an interesting text message because, in the context of the earlier text messages from the father, it rather seems as though the father was “venting” or “unloading” as it were, upon the mother.  He was blaming her for all of the difficulties.  He was indicating that he had little, if any, desire to undertake his obligations under the orders.  In my view, his observation that it was time she got some “proper counselling and probably medical help and then maybe you can build bridges with the girls” in fact constituted to a large degree a repudiation of the orders.  The father was setting in place a sequence of conditions that he considered the mother needed to comply with before the mother/daughter relationship could progress. 

6. To be fair to the father, he did not yet know when sending that message that the mother had in fact been diagnosed with Bipolar Disorder.  I am not critical of him for making an observation about the mother’s mental health per se.  My criticism is that he had legal obligations pursuant to the parenting orders to positively encourage the child’s attendance and it is quite clear to me that he had no intention of doing so after this first aborted visit on 4 August 2017. 

7. It is not the case that a parent who has the primary care of a child is entitled to do as little as bringing a child to a front entrance and inviting the child to walk of their own accord to the other parent at the garden gate, as it were.  There is plenty of authority as to an obligation upon a parent in the father’s position, and it seems to me that he fell well short of his obligations on 18 August 2017.  This is not to in any way excuse the mother’s disappearance from the child’s life for that earlier period which, in my view, precipitated the current set of difficulties - but the reality is that I consider that the father not only has no reasonable excuse in relation to count 2, but that he does not really have any argument at all. 

8. His affidavit evidence is silent as to this alleged contravention.  The parenting orders had been made in April 2017, just four (4) months earlier.

9. There were still property proceedings before the court at the time, yet no steps were taken by the father to try to re-open or seek to suspend the parenting orders.

10. I am of the view that in relation to count 2, that the father not only contravened the parenting order but that he showed a serious disregard of his obligations under the parenting orders.  He did absolutely nothing to assist what was a difficult situation.  Quite the contrary, he took the position that the mother had caused the problem and she now had to “dig herself and the child out of it” with little or no assistance from him.  He effectively repudiated the parenting orders.

Conclusion:

1. In the circumstances of this case, I am satisfied that the father contravened the parenting orders on 4 August 2017 (count 1).   I am satisfied that the father did not have a reasonable excuse for doing so. 

2. In relation to count 1, my view is that the appropriate penalty to impose on the father is that he undertake a post-separation parenting program within a period of four months’ time pursuant to section 70NEB(1)(a) of the Family Law Act. 

3. In relation to count 2, I am satisfied beyond a reasonable doubt that the father contravened the parenting orders without reasonable excuse and that he showed a serious disregard of his obligations under the order. 

4. In terms of penalty pursuant to section 70NFB in relation to count 2, I will hear submissions on a future date. I intend to do so because, as I identified at the commencement of these reasons, the curious drafting of section 70NFB seems to require that I first consider the making of a costs order before considering what (if any) other order/penalty should be imposed. It seems to me inappropriate to impose a penalty on the father - particularly a fine which the mother’s counsel originally contended for - without first knowing what costs order, if any, I might be asked to make against the father.

5. In relation to the further hearing of the matter, the mother is to file and serve a response affidavit and notice of risk in relation to the substantive parenting proceedings by 11 March 2019.

6. In relation to the question of costs and any other orders arising in relation to count 2, the mother is to file and serve an affidavit by close of registry filing on 11 March 2019.  That way, the mother can put all of the relevant evidence before me in terms of costs agreements and the like. 

7. The father will be ordered to file and serve response material relating to costs and to the appropriate orders he says should be made arising as a result of my finding concerning count 2. 

8. The mother is to file and serve response material in respect of the father’s Initiating Application. 

9. The contravention proceeding will be adjourned to 10 April 2019 at 9.30 am for further hearing, and the substantive proceedings are also listed for directions that day.

10. The Court will order that the settled Reasons for Judgment of today be provided to the parties. 

11. The orders in this matter are otherwise as set out at the commencement of these Reasons.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Betts

Date: 25 March 2019