MAYER & MAYER

[2019] FamCA 489

FAMILY COURT OF AUSTRALIA

MAYER & MAYER [2019] FamCA 489

FAMILY LAW – CHILDREN – Contravention 1 – Where no case to answer because the orders don’t require the father to act reasonably by agreeing to alternative supervision – Contravention 2 – Where no case to answer because it was ordered that there be no communication until supervised time had commenced – Contravention 3 – Where no case to answer because the parties’ arguments are the same as in contravention 2 – Contravention 4 – Where no case to answer for the same reasons as contravention 1 – Contravention 5 – Where the court not persuaded that by delaying contacting the Contact Centre, the father made no reasonable attempt to comply with the orders – Contravention 6 – Where no case to answer because there was no prohibition on the father blocking phone numbers and the court is not persuaded the father changed his phone number – Where no contraventions established – Where order 7(e) be varied in the best interests of the children.

Family Law Act 1975 (Cth) ss 60CC, 60NAC, 70NAE, 70NAC, 70NAF, 70NBA, 70NEA, 70NEB

Mayer & Mayer (No.2) [2018] FamCA 910

APPLICANT: Ms Mayer

RESPONDENT: Mr Mayer

FILE NUMBER: CSC 263 of 2017

DATE DELIVERED: 23 July 2019

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 26 June 2019

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Lindsay

SOLICITORS FOR THE RESPONDENT: Marino Lawyers

Orders

1. Orders 7(e) of my orders of 8 November 2018 be varied by replacing the words “after a period of six months of supervision” with the words “on and from 8 August 2019.”

2. Otherwise the mother’s Contravention Application filed 15 February 2019 be dismissed. 

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 Mayer & Mayer 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 CAIRNS

FILE NUMBER: CSC263/2017

Ms Mayer

Applicant

And

Mr Mayer

Respondent

REASONS FOR JUDGMENT

INTRODUCTION  

1. On 8 November 2018, for reasons published to the parties on that day,[1] I made final parenting orders relating to the parties’ children, being X (presently 8 years of age) and Y (presently 7 years of age) (“the children”).  Under those orders, the children, who at the time were living with the mother, were to move to live with the father, and thereafter there would be a moratorium on the mother spending time or communicating with the children for three months.  The orders then provided for the reintroduction of the children to the mother, initially for a period of six months of supervised time, but then moving to day time on alternate Saturdays and Sundays, at the conclusion of three months of which, the children would then spend alternate weekend time with her, including Friday and Saturday nights.

   [1]Mayer & Mayer (No.2) [2018] FamCA910.

2. Additionally I made orders in relation to telephone communication, and orders requiring the parties to undertake the necessary procedures in order for the children to spend supervised time with the mother for the six month period at the B Town Contact Centre.

3. By Application in a Case filed 15 February 2019, the mother brought contravention proceedings against the father.  On 26 June 2019 I heard the mother’s evidence, at the conclusion of which counsel for the father submitted that the father had no case to answer, and that the proceedings should be dismissed.  He mounted an alternative argument in the event that submission did not succeed, namely that he would call no evidence, and have the matter determined on the mother’s material alone.

4. On that day I reserved my decision.  This is that decision and the reasons for it.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

1. A person contravenes an order under the Family Law Act if he or she either intentionally failed to comply with the order, or made no reasonable attempt to comply with it: s 70NAC. It is incumbent upon the person alleging the contravention of the order to establish either of those alternatives on the balance of probabilities, in the event that it is a less serious contravention: s 70NAF and s 70NEA. If they do so, and the person who contravened the order does not prove that he or she had a reasonable excuse for the current contravention, then in the case of a less serious contravention, the powers of the court are enumerated in s 70NEB of the Act.

2. Section 70NAE deals with the meaning of reasonable excuse for contravening an order. It sets out a number of instances which will comprise a reasonable excuse, but does not limit a reasonable excuse to those enumerated cases. One of the cases is stipulated in s 70NAE(4) as follows:

   A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

   (a)The respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)The period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

3. The standard of proof in contravention proceedings is the balance of probabilities under s 70NAF of the Family Law Act. However, in proceedings where a serious sanction is contemplated, such as a bond, major fine or even prison, the court must be satisfied of the contravention beyond reasonable doubt, pursuant to s 70NAF(3). This section is consistent with the overall structure of Div 13A of the Act - that is the higher standard is more appropriate for the more punitive types of orders.

CONTRAVENTION No.1

The allegation

1. The mother alleges that on 10 February 2019, at 9:00am in BB Town, contrary to order 7(a) of the 8 November orders, “the respondent without excuse refused (sic) allow the applicant to spend time with children X and Y.”

2. Order 7(a) provides as follows:

   7(a)From 8 February, 2019 each alternate week supervised at the B Town Contact Centre (or supervised by such other persons as may be agreed to by the father) for a period of 6 months, at such times as can be facilitated by the Centre or other agreed person, with the mother to be solely responsible for the cost of supervision.

The relevant facts

1. For reasons which I will discuss in due course, unfortunately by 8 February 2019, the B Town Contact Centre had been unable to facilitate supervised time between the mother and the children.  Therefore at that date it was only supervision by “other agreed person” which was possible.  As I understand her evidence, ultimately the mother conceded that this was the only potentially viable limb to her alleged contravention.  As to this, in her email of 31 January 2019 to the solicitors for the father, the mother said as follows:

   I refer to the above matter and to the orders made by Justice Tree of the Family Court of Australia on 8 November 2018.

   Order 7(a) of the orders provides that I am to commence spending supervised time with the children from 8 February 2019 at the B Town Contact Centre or supervised by another person as agreed to by your client.  I have contacted the B Town Contact Centre who have advised that they are unable to facilitate supervised time as of 8 February 2018 (sic) due to your client not having completed his intake at the Centre.  This is despite order 6 of the orders requiring both parties to forthwith do all things necessary to enable me to be able to spend time with the children at the Centre.  Please find attached written confirmation from the B Town Contact Centre that your client has not completed his intake and therefore contact cannot commence as of 8 February 2019.

   I confirm that I have written to you previously on 25 November 2018, 28 November 2018, 29 November 2018 and 4 December 2018, requesting that your client consider an alternative supervisor as per order 7(a) of the orders.  I confirm that I have not received any response to my requests.  Again, I write to you requesting that your client agree to an alternative supervisor so that I may commence spending time with the children as per order 7(a).

   I have previously proposed the following supervisors who are prepared to supervise my time with the children commencing the weekend of 9 and 10 February 2019:

   [Ms HH], [Ms JJ] or [Ms KK] from U Group;

   [Ms LL] and [Mr MM] who are the parents of the children’s good friends;

   [Ms NN] who is also the mother of some of the children’s friends.  [Ms NN] works in child care.

   To date I have received no response to my proposals.  The supervisors can conduct supervise in the B town area only.

   I now propose another possible supervisor, Ms DD.  Ms DD is a qualified counsellor recommended to me by the Women’s Centre in B Town.

   Ms DD is available to supervise my time with the children from 9:00am to 3:00pm on Sunday 10 February 2019.  I proposes that we collect the children from your client’s market stall at BB Town at 9:00am on 10 February 2019 and return them to your client’s stall at 3:00pm.  If the father wants to pre-meet this supervisor for acquaintance, I will provide her contact details.  The supervisor lives in the BB Town area and is available to supervise my time with the children in this area.

   As per my previous requests, I am happy for your client to draft a letter of instructions to any agreed supervisor.

   I also received a certificate from RA which confirms that your client refuses to mediate with me regarding children (attached).

   Should I receive no response to my request or should your client not be agreeable to an alternative supervisor and continue to delay completing his intake at the Contact Centre thereby preventing me from spending time with the children as per the orders, I will seek legal advice with regards to my options including making a Contravention application to the Court, or an application to vary the existing orders.  Should this be necessary I shall seek to recover my legal costs of making such an application from your client and rely on this letter as to the issue of costs.

   Could you please as a matter of urgency seek your client’s response to my proposal?

   I await your reply.  

2. On February 5 she followed that email up seeking an urgent response.  No response was received by the mother prior to the date of the alleged contravention.  Eventually a response was received on 1 March 2019 which said relevantly:

   Our client requires the supervised time pursuant to the orders to be professionally managed.  However, the B Town Children's Contact Centre has advised us that you have declined the proposed times put forward by our client as they conflict with your market stall business.

The mother’s case

1. The mother suffers from a number of difficulties in conducting litigation such as this.  The first is that she is not particularly fluent in English, and requires an interpreter.  The second is that she is likely quite unfamiliar with the processes underpinning contraventions, which are notoriously intricate.  However doing the best I can, it seems as though her real complaint is that the father acted unreasonably by failing to agree an alternative supervisor to the B Town Contact Centre.  Implicitly it is said that one or more of the proposed supervisors was a reasonable choice.

The father’s argument

1. The father says that the mother’s email of 31 January 2019, insofar as it suggested U Group, was not a reasonable option, in that at the trial before me, the mother had been stridently critical of the professionalism of that organisation.  Further, he says that [Ms LL] and [Mr MM] had sided more with the mother than he, and were not likely to be partial.  He relied upon some text message communication between [Ms LL] and the mother annexed to the mother’s affidavit.  He says that the mother’s email gave no detail in relation to Ms NN other than that she “works in child care,” and Ms DD, although said to be a “qualified counsellor,” was unknown to him.

2. Necessarily the father’s argument must then be that, based upon the limited information which the mother gave him in relation to these people, that there is no reasonable prospect of his been found guilty of contravening order 7(a).

Evaluation

1. Although, based upon considerations of business efficacy, there will often be an implied term in contracts that parties will act reasonably and not withhold their reasonable consent, I am far from persuaded that there is such an obligation imposed upon parties to Family Court orders, arrived at after a highly conflictual relationship breakdown and trial.  Parties frequently will not behave reasonably.  Parties will often act vindictively by withholding reasonable concessions or agreements.

2. I am not satisfied that order 7(a) required the father to act reasonably by agreeing a suitable alternative candidate for supervision, other than the B Town Contact Centre.

3. If I am wrong as to that, then the very limited information which was given by the mother in relation to the proposed supervisors would have been insufficient for the father to reach a rational conclusion, in the unusual circumstances of this case, so as to be said to be acting unreasonably by not agreeing to one of those persons being supervisors.  Further, it is complicated by the fact that the proposed time for supervision was, at least in relation to Ms DD, from 9:00am until 3:00pm.  That was a dramatically different amount of time to that which was contemplated as a matter of practicality by the orders for Contact Centre supervision, which at most would have been two hours on any occasion.  A proper construction of order 7(a) could not be that, so long as the mother were able to identify a reasonable provider of supervision, that therefore extensive periods of time could be forced upon the father.

4. I am satisfied that there is no case for the father to answer in relation to contravention number 1.

CONTRAVENTION No.2

The allegation

1. This contravention alleges that on 11 February 2019 between 6:00pm and 6:30pm:

   The respondent without excuse refused (sic) allow the applicant to talk on the phone with the children X and Y.

2. Order 10 relevantly provides:

   10.Once the mother commences to spend supervised time with the children, and thereafter, the mother is permitted to telephone the children each Monday and Thursday from 6:00pm to 6:30pm and each child’s birthday and Mother’s Day (if the mother is not then otherwise spending time with the children).  Until unsupervised time commences in those telephone conversations, the mother is to speak English to the children, and the father is permitted to have the telephone calls on speaker, and to terminate the calls if the mother speaks in Country D Language, discusses Y’s disclosures or these proceedings, or denigrates the father. 

Relevant facts

1. It is not in dispute that the mother did not speak with the children between 6:00pm and 6:30pm on the day in question.

The arguments

1. The mother says that order 10 came into force from 8 February 2019, independently of whether she had in fact commenced to spend supervised time with the children under order 7 or not.

2. The father says that order 10 did not commence operation until the mother in fact commenced to spend supervised time with the children.

Evaluation

1. I am satisfied that the father’s construction of order 10 is the correct one.  The mother had no entitlement to communicate with the children unless and until she commenced spending supervised time with them.

2. It follows that her application is doomed to fail.  There is no case to answer.

CONTRAVENTION No.3

1. This contravention alleges that, on 14 February 2019 between 6:00pm and 6:30pm:

   The respondent without excuse refused (sic) allow the applicant to talk on the phone with the children X and Y.

2. It is not in dispute that the mother in fact did not speak with the children at that time.  It is likewise not in dispute that the mother had by then not commenced to spend unsupervised time with the children.

3. The parties’ arguments in relation to this contravention are identical to contravention No.2.  For the same reasons as I gave in relation to that contravention, the father does not have a case to answer in relation to contravention 3.

CONTRAVENTION No.4

1. This contravention alleges that on 17 February 2019 at 9:00am:

   The respondent without excuse refused (sic) allow the applicant to spend time with children X and Y.

2. The first curiosity to note is that this contravention is said to have occurred two days after the Application – Contravention was filed.  No argument about that was addressed by the father’s counsel, who did not contend that there was any technical flaw in relation to a contravention alleging a future breach.

3. I have already addressed some of the relevant facts in considering contravention number 1, and particularly the mother’s history of proffering the names of suggested supervisors.  Likewise I have identified that the Contact Centre was not able to facilitate the children spending supervised time with the mother by 17 February.  Therefore again, this allegation is founded on an argument by the mother that the father ought to have agreed to the identity of an alternative supervisor.

4. The only additional material germane to this contravention, beyond that relied upon in relation to contravention number 1, is an email which the mother sent on 12 February to the father’s solicitors in the following terms:

   I want to confirm that I did not receive any reply to my letters from 31.01.19 and from 5.02.19 regarding the supervisor and the supervision contact on 10.02.19.

   I once again ask your client to give his consent to conducting contacting children and me on 17.02.19 I propose supervisor, Ms DD.  Ms DD is a qualified counsellor.  I provided my letter form (sic) 3.02.19 of her contact information and documents confirming her qualifications.  Also in the letter I provided the father with a letter from my psychologist confirming that I do not represent a threat to the mental health of my children.

   Ms DD is available to supervise my time with the children from 9:00am to 3:00pm on Sunday 17 February 2019.  I propose that we collect the children from your clients market stall at BB Town at 9:00am on 17 February 2019 and return them to your client’s stall at 3:00pm.  The father can to pre-meet this supervisor for acquaintance.  This supervisor lives in the BB Town area and is available to supervise my time with the children in this area.

   …

5. The father repeats the same arguments that he advanced in relation to contravention 1.  Particularly, he says that the proposed supervisor, Ms DD was unknown to him, and other than the mother’s assertion that she was a “qualified counsellor,” she told her nothing of him, albeit she had invited him to contact her for himself.

6. I have already observed that I am not satisfied that there is an obligation implied upon the parties to not unreasonably withhold agreement under Family Court orders.  Further, I repeat my findings that the information that was given in relation to Ms DD, and indeed the other proposed supervisors earlier proffered, was not insufficient detail for me to find that the father’s withholding his consent was unreasonable.  Finally, again there is the difficulty that the time proposed by the mother considerably exceeded that contemplated by my orders.

1. This contravention is doomed to fail, and there is no case to answer.

CONTRAVENTION No.5

The allegation

1. This contravention alleges breaches of orders 6 and 7(a) of the 8 November orders, although no date, time or place is specified.  The relevant breaches are said to be that:

   The father did not register at the Contact Centre immediately as indicated in court’s order and did not complete his intake on time, nor does he respond to my suggestion for an alternative supervision that makes it impossible for me to meet with the children.

2. I have already recited order 7(a) in discussing contravention number 1.  Order 6 provides:

   6.Both parties are to forthwith do all things necessary to enable the mother to be able to spend time with the children at the B Town Contact Centre.

Relevant facts

1. The evidence clearly establishes that the father did not make any contact with the B Town Contact Centre until his solicitors emailed them on Tuesday 27 November 2018.  In cross-examination the mother was taxed by reference to the father’s affidavit filed 3 April 2019, in which he sets out reasons for that delay, and in broad terms, the mother accepts that the children had only just gone into the father’s care, that he inevitably had to arrange schooling for them, and she concedes that the father was also engaging with the Department of Children’s Safety officers, who put in place an immediate safety plan consequent upon my orders, and conducted a home visit of him.  Nonetheless it is plain that the father delayed for some 19 days before contacting the B Town Contact Centre.  However thereafter there seems to have been significant delay on the part of the Contact Centre itself.  The evidence satisfies me that they did not revert to him until 10 January 2019, advising that the interview for his intake would take place on Wednesday 20 February 2019 at 9:00am.  This, of course, was well after the Contact Centre supervision was intended to commence.

2. The mother was pressing the Contact Centre for the commencement of supervision on 8 February, however on 25 January, that centre advised the mother by email, confirming that she had undertaken her intake and assessment on 16 January 2019, but advising that the assessment of availability for the commencement of visits would only take place “as soon as both intakes are completed…”  Plainly from that, the father’s intake and assessment had not then been completed.  Presumably this led to the mother’s email of January 31.

3. The mother says that the father did not act expeditiously in prosecuting contacting the Contact Centre “immediately.”  The word employed in order 6 is, of course, “forthwith.”  Further, the mother says that the father “did not complete his intake in time,” although that first intake interview that was offered to him was for 20 February 2019.  Although it is irrelevant in considering the father’s application, it seems as though he in fact likely undertook an intake assessment prior to then.

4. As to this, the father says that I could not be satisfied on the material that he intentionally failed to comply with the order, but concedes he has a weaker argument that he made no reasonable attempt to comply with the order.

5. I am not persuaded that the father has established that there is no case to answer in relation to his failure to register with CC Group until 27 November 2018.  Therefore in this respect his application fails.

CONTRAVENTION No.6

1. The mother alleges that the father breached order 13.  Order 13 provides:

   13.Each party is to inform each other of a current contact address and telephone number, and will inform the other parent in writing within 48 hours of any change.

2. She says that breach of that order in November 2018 “the father blocked or changed the phone and did not inform me.  I have no connection with him to communicate with him and the children.”

3. The mother’s case in relation to this is extremely weak.  She annexed to her affidavit some text messages which her older children from an earlier relationship sent the father, which were not replied to.  She says that her attempts to telephone the father were fruitless.  However that falls far short of persuading me that the father had changed his telephone number, and indeed, when one looks at the CC Group letter to the father of 10 January, it refers to the telephone number which the mother says had by then been changed.

4. As to the component of the mother’s complaint that the father “blocked” the phone, as has been seen, the orders only required the father to facilitate telephone communication once the mother commenced to spend supervised time with the children.  She had not done so by the time of her contravention application, and therefore, even if it be the case that he had blocked her phone, there was no prohibition on him doing so, and there was no general entitlement on the part of either the mother or her older children to force the father to answer their telephone calls.

5. The mother’s case in this respect is bound to fail.  There is no reasonable case to answer.

THE DETERMINATION OF CONTRAVENTION No.5

1. In the event that the father’s application for the summary dismissal of contravention 5 was not made out, then counsel for the husband submitted that nonetheless, the mother’s material would not persuade me that the father made no reasonable attempt to comply with the order, by contacting the centre 19 days after it was made.  The father says that:

   ·The children had only just gone into his care;

   ·Inevitably he needed to organise pressing matters for them including schooling and health care;

   ·Perhaps at the mother’s behest, the Department of Children’s Services immediately engaged with the father, including implementing an immediate safety plan, undertaking a home visit and the like;

   ·At the time, the mother was engaged in some online vilification of the father, including calling him a paedophile;

   ·At the time the mother was seeking to establish funding on FF Company.

2. Inferentially, his argument is that he had a considerable amount on his plate at the time, and he got to engaging with the Contact Centre when he could.  He says that I certainly could not, against that background, be satisfied that he made no reasonable attempt to comply with the order.

3. Notwithstanding that 19 days is very close to three weeks – being one quarter of the time between my orders, and the time when it was contemplated that supervised time between the mother and children would commence, I am nonetheless unpersuaded that the father, by delaying for that time, made no reasonable attempt to comply with the order.  It is true that he was tardy, but he attended to it on 27 November.  It was a reasonable, albeit late, attempt at compliance.

4. In the event that I was not satisfied in relation to that argument, the father advanced a further argument that he had a reasonable excuse for contravening the order.  However in this respect his counsel said that he did not intend to rely upon his affidavit filed 3 April 2019, which would make establishing a positive reasonable excuse very difficult for him.  However, given the length of his delay was only 19 days, and given the matters that I have already adverted to, I am satisfied that he ought be excused in respect of the contravention, and would have so ordered even if I had found the contravention proved, and was not persuaded of reasonable excuse.

VARIATION OF ORDERS

1. Notwithstanding that I have found that none of the contraventions are established for varying reasons, nonetheless there is still a power under s 70NBA of the Act, to vary the parenting orders. The father recognised a variation that might have been made in the event that the contravention was established, was to bring forward the commencement of unsupervised day time to 8 August, rather than, as I understand it, it being now not otherwise until 29 September 2019. That would then not see the overnight time with the children commence until 29 December, by which time, under order 7(f), the children would be due to spend the second half of the school holidays with the mother. That would be a particularly unfortunate outcome. The intention of my orders, or at least the expectation, was that the children would have had at least about two months of overnight time with the mother by the time they commenced one half of school holidays with her. Whilst appreciating that it was a very quick build up in any event, the speed of progression now would be even greater.

2. I have traversed the relevant s 60CC considerations in the primary reasons. The critical two matters to determining the children’s best interests in relation to a variation of order under s 60NAC are the primary considerations. My orders were clearly not intended to terminate the children’s relationship with the mother, but to give the father an opportunity to reignite his relationship with them, independent of the mother’s interference. It is plainly in their best interests that the relationship with the mother not be imperilled.

3. I am therefore satisfied that it is in the children’s interests that order 7(e) be varied so that, instead of the words “after a period of six months of supervision” there be inserted “on and from 8 August 2019.”  I am satisfied that such orders are in the best interests of the children.

4. The alternative, namely to put back the commencement of school holiday time being spent with the mother, in my view is not in the children’s interests.  It is important that their relationship with the mother be maintained, and that was plainly the intention of my orders.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 23 July 2019.

Associate: 

Date: 23 July 2019