Mazzotti and Aldridge

[2007] FamCA 1183

FAMILY COURT OF AUSTRALIA

MAZZOTTI & ALDRIDGE [2007] FamCA 1183

FAMILY LAW - ENFORCEMENT – PARENTING ORDER – Contravention of orders that the child aged three spend time with her father – prima facie case found of breach - reasonable excuse asserted for all alleged breaches however some contraventions were found – PENALTY – inability of Court to order a bond and community service order as a result of drafting defects in the legislation – order of ‘make-up’ time and costs against the mother

Family Law Act 1975

Elspeth & Peter; Mark & Peter and John & Peter (Penalty and Costs) [2007] FamCA 1072
Stevenson v Hughes (1993) FLC ¶92-363

APPLICANT: Mr Mazzotti

RESPONDENT: Ms Aldridge

FILE NUMBER: CAF 262 of 2005

DATE DELIVERED: 5 October 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 4 October 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Gavin Howard

SOLICITOR FOR THE RESPONDENT: Mr Richard Monteleone

The mother contravened without reasonable excuse parenting orders of 27 February 2007 on 14 March 2007, 15 August 2007 and 25 July 2007.

ORDERS

1. That by way of compensatory time the father will spend three hours unsupervised time with the child each Tuesday and Thursday for a period of three weeks, commencing on 9 and 11 October 2007.

2. That commencing on 31 October 2007 the father will spend three hours unsupervised with the child each Wednesday from 12 noon until 3 pm.

3. That the child will spend time with the father by way of the mother dropping off and collecting the child from the F in K at the commencement and conclusion of each period of time that the child spends with the father.

4. That the mother pay the father’s costs of and incidental to this application as assessed or agreed.  Payment of such costs is postponed until the division of property between the mother and the father pursuant to the orders that will flow from the judgment that I am presently reserved to deliver.

5. That the matter be listed before me on Wednesday 28 November 2007 at 2.15 pm, unless the Family Consultant has an alternative recommendation.

6. That the application about contravention is otherwise removed from the pending cases list.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Deputy Chief Justice Faulks delivered this day will for all publication and reporting purposes be referred to as Mazzotti v Aldridge.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 262 of 2005

Mr Mazzotti

Applicant

And

Ms Aldridge

Respondent

REASONS FOR JUDGMENT

(Contravention)

Foreword

1. By an application filed on 11 September 2007 the father of E, born in October 2003, sought that the mother be dealt with for contravention of parenting orders made by me on 27 February 2007.

2. The father asserted seven breaches of the orders referred to, six of which related to a failure without reasonable excuse by the respondent mother to allow the child to spend time with the applicant. 

3. The seventh allegation asserted that:

   “The Respondent without reasonable excuse failed to attend the Parenting for Positive Behaviours Course and/or the ARCK Program in accordance with the Orders”. 

4. The Orders referred to stipulated as follows:

   “By way of further interim orders pending judgment in this matter:

   1.[The child] will spend time with her father for three hours per week at times agreed between the parents and subject to the availability and appropriate supervisor either [M] Contact Service or such other professional contact service as may be nominated by Ms [L] in consultation with the parents. 

   (a)[The child] will spend with her father between 12 noon and 3pm on Wednesdays providing that the supervising service can arrange supervision at that time and subject to the parents otherwise agreeing. 

   2.The cost associated with such supervision will be paid by Mr [Mazzotti], the father.

   3.Unless the parties otherwise agree the contact service will collect and deliver [the child] from her mother’s residence.

   4.Only the father will attend the supervised contact visits unless the parents otherwise agree and he shall not bring any other person to the time that [the child] spends with him.

   5.The parties will attend upon the program conducted by [M] or the Family Relationship Centre known as Parenting for Positive Behaviours or an equivalent program as nominated by Ms [L] in consultation with the parents. 

   6.Upon completion by both parents of the program referred to, both parents will do such things as may be necessary to attend and to participate and complete (unless the director of the program suggests otherwise) the Parenting Orders Program conducted at [M] or by [M] in conjunction with Relationships Australia.  Neither parent may commence such program until they have completed the Parenting for Positive Behaviours program referred to previously and each parent will participate as fully as possible in the Parenting Orders Program.  If it should happen that [the child’s] mother fails to complete the Parenting for Positive Behaviours program or if for any other reason she is unable or unwilling to complete that program then I direct that the Family Consultant, Ms [L], notify the Case Coordinator in this matter who will then arrange for it to be re-listed before me for further directions and determination if necessary. 

   7.Neither parent may make further application about questions of the time that [the child] will spend with her father unless and until they have completed the Parenting Orders program or alternatively the conductor of such program certifies that there is no further reason for the parents so to attend. 

   8.Upon completion of the Parenting Orders Program, each of the parents will attend upon the Family Consultant, Ms [L], for the purposes of a review of the arrangements between them and she will then determine whether there is a need for any further proceedings before this court or if requested to do so by either party make arrangements for it to be listed before a judge of this court to enable such a determination to be made.

   9.The matter is adjourned for delivery of judgment in relation to the property matter and until such time as the parents have completed the Parenting Orders program as referred to above, or the matter is earlier listed before the court.

   10.Nothing in these orders precludes the parents from reaching agreement about matters relating to [the child] and if so I will make or a judge of this court will make orders by consent in chambers”.

5. The first six allegations accordingly were said to constitute a breach of Order 1 and the other matter was asserted to be a breach of Order 5. 

6. At the commencement of proceedings counsel for the father withdrew the allegation of the breach of Order 5. He then asserted that I should deal with the other allegations of breach under the provisions of Subdivision F of Division 13A (Contravention without reasonable excuse (more serious contravention)) that is that part of the Family Law Act 1975 (the Act) which deals with more serious contraventions.  This section appears primarily to be directed to the way in which the Court should deal with respondents who are before the Court for second or subsequent breaches of Court orders. 

7. However, s 70NFA(2) provides that if previously a sanction had not been imposed on someone and:

   “(b) the court dealing with the current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order”

   that Subdivision could apply. 

8. Under the Subdivision the Court might impose more serious sanctions such as imprisonment, a fine, or community service.  It also provides that the Court could impose a bond.  The recent Full Court decision Elspeth & Peter; Mark & Peter and John & Peter (Penalty and Costs) [2007] FamCA 1072 illustrates the difficulties associated with the imposition of a bond in what appears to be an error in the legislation (or at least an absurdity) in that s 70NEC requires that a Court proposing to impose a bond explain the consequences of entering into the bond to the respondent but also the consequences of his or her failing to enter into the bond. Because of the apparent failure to harmonise the provisions of the Act in essence a court would be required to say to a respondent there are no consequences for your failing to enter into the bond but I propose to order you to enter into it and if you do the consequences of your breaching the bond will be as follows. It seems unlikely that many bonds would be successfully entered into.

9. It would appear that similar restrictions might apply to Community Service Orders.

10. In the light of these difficulties and given that none of those penalties or the more serious penalties were being sought by the applicant in this matter,  the father determined that he would proceed under the less serious contravention sections of the Act. 

11. Before I leave however the difficulties with the Act under the more serious provisions, I draw attention to s 70NAF (Standard of Proof).  This provides as follows:

    “(1)  Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

    (2)  Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

    (3)      The court may only make an order under:

    (a)    paragraph 70NFB(2)(a), (d) or (e); or

    (b)  paragraph 70NFF(3)(a); if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.”

12. The imposition of serious penalties therefore requires the Court to be satisfied “beyond reasonable doubt that the grounds for making the order exist”.  To the extent that there are no legislative provisions for the imposition of some of the penalties referred to stipulating the relevant grounds for the imposition of the penalty, it may be assumed that the Court in determining the matter would look at the nature of the contravention itself.  This would seem to require the Court having determined, on the balance of probabilities, that a contravention had occurred then being obliged to re-examine the same material perhaps on the basis of proof beyond reasonable doubt to determine whether the more serious penalty would be appropriate. 

13. Logic would dictate that the imposition of the more serious penalties would have involved the application of a standard of proof for serious penalties which was beyond reasonable doubt.  However, that is not what the legislation says - at least it is not what the legislation appears to say. 

Basis of Proceeding

1. At the beginning of the proceedings counsel for the respondent mother conceded that on each of the alleged days on which breaches were said to have occurred the child did not spend time with the father.  Further it was conceded that these were days on which the child should have spent time with her father.  In respect of each of the days the mother asserted both personally and through her counsel that she had a reasonable excuse for the contravention. 

2. Given those concessions I found after hearing evidence from the father and submissions from counsel that there was a prima facie case in respect of each of the six alleged breaches. 

3. The mother chose to give evidence and tended a number of documents in support of her assertion of a reasonable excuse for each of the alleged contraventions. 

Contravention alleged on 14 March 2007

1. On this day the mother asserted at the relevant time she was engaged in other court proceedings.  She failed in her evidence to establish what was happening to the child during the period that she was in court or indeed any reason why other than the mother’s absence for this purpose the child could not have gone and spent the time with her father.  In my opinion there being no other reason proffered on this occasion, no reasonable excuse was made out on the evidence before me. 

Contravention alleged on 15 August 2007

1. At the other end of the spectrum the mother was unable to recall any matters relating to that day which were of any assistance to her - or indeed any details at all.  In such circumstances she has failed to establish that there is a reasonable excuse and in such circumstances that allegation is also made out.

Contravention alleged on 18 April 2007

1. The mother had urgent dental treatment on this day and conceded when asked in cross-examination that she saw the appointed supervisor on her way to the hospital or thereabouts.  It was suggested that as a consequence she could have made arrangements to deliver the child to the carer early and that that would have permitted the appointed time to occur in any event. 

2. If goodwill existed, if the suggestion had been made, if it occurred to someone suffering from severe dental problems, that all of this might have occurred, then it is possible that the arrangements could have proceeded as suggested.  However although it is a matter of judgement to some extent, it seems to me that the mother’s approach to the matter on this occasion was not unreasonable and the events in themselves constituted a reasonable excuse. 

Contravention alleged on 25 July 2007

1. This was a day on which it was asserted that the child refused to go.  It was asserted that she hid under the table and that she refused to accompany the carer Ms R when she turned up to pick her up.  The mother asserted that she urged the child to go but gave no evidence that she encouraged her to go in the sense that would, in my opinion, properly be prescribed by the determination of this Court in Stevenson v Hughes (1993) FLC ¶92-363.

2. In my opinion the mother has failed on this occasion on her evidence to satisfy the requirements of actively encouraging the relationship between the child and her father and in particular encouraging her in a supportive way to go to her father.  I am fortified in this construction of the mother’s behaviour by the fact that subsequently, on another occasion, the child was reluctant to attend but was persuaded to come out to say goodbye to Ms R. When she attended the car she, with some persuasion, agreed she would go and apparently did and from all accounts had a good time with her father.  This would suggest that if the same sort of reason had been applied on the day in question there may well have been a different result.  In my opinion a reasonable excuse was not made out. 

Contravention alleged on 1 August 2007 and 8 August 2007

1. Similar facts apply and in my opinion a reasonable excuse was made out in respect of each of those days.  I accept the mother’s evidence which included the asserted provision of a medical certificate on those occasions that the child was suffering from an illness which for all practical purposes incapacitated her for attendance. 

The Significance (or Otherwise) of Offers of Make-Up Time

1. It was urged on me that the mother took the attitude that she never offered alternative arrangements if there was a problem.  The father’s affidavit set out a number of other days on which the time that the child was to spend with him did not occur because of the illness or conflicting appointments of the supervisor.  On no occasion, the father asserts, did the mother offer alternative compensatory arrangements. 

2. Although in my opinion the attitude of the mother in relation to events which were beyond her control did not demonstrate in any way an appropriate attitude to encouraging a relationship between the child and her father, in my opinion it does not bear directly upon whether or not there was a reasonable excuse.  The mother’s willingness to offer alternative arrangements about the time that the child would spend with her father would not cure a situation in which there was no reasonable excuse for the arrangements to occur; nor in my opinion would it in itself, turn what would otherwise be a good excuse into something that was not a reasonable excuse.  The mother’s attitude does however affect the way in which I would look at and should look at the consequences of these breaches. 

Other factors to be taken into account

1. The mother has very limited financial circumstances and little transport.  The father asserts limited financial circumstances although the limitations on his affairs are not clear to me.  There is no suggestion that the child should primarily live with her father and it seems improbable that even if I were to consider that to be a good idea, it would not be in her best interests.  The father has no demonstrated ability to primarily look after her nor does he, at least at present, indicate any desire to do so.  Putting the mother in jail would only have the effect in the short term of being distressing to the child and possibly poisoning the relationship between the child and her father.  That does not mean however that now that primary breaches have been established for the mother that subsequent actions on her part failing to comply with Court orders may not result in serious penalties being involved. 

2. It is up to her in particular to generate choices for the Court in the way forward to the development of appropriate relationships between the child and her father as well as the child and her mother.

Considerations about penalty

1. Aside from the matters that I have already mentioned it seems to me that little purpose can be served in the circumstances of this matter in the imposition of any penalty other than the finding that the contravention had occurred. 

2. This is however a matter in which in my opinion there should be some compensatory time for the child to spend with her father.  In my original orders I prescribed an elaborate program to enable the parties to move towards a more effective arrangement about the time that the child would spend with her father.  This involved the parties attending courses through different community-based organisations in Canberra and a subsequent review of the situation after they had completed those courses. 

3. There was before me no evidence about the status of the parties’ courses at present and some conflict about whether in fact the ARCK course had been either undertaken or completed.  The failure for there to be any adequate evidence about this is in itself surprising. 

4. Nevertheless it seems to me that it is appropriate that I should activate the provisions of the orders I made to permit a review of the circumstances of the parties by the Family Consultant, Ms L and to thereafter seek her advice about how arrangements about the child might be better advanced in the future.

5. The original orders were made more perhaps in hope than in expectation and sadly that hope does not appear to have been realised.  Nevertheless until such time as Ms L can again review the situation and make recommendations I am of a view that there should be compensatory arrangements of time for the father under s 70NEB(1)(b).  I make this determination over the objection of the mother and in part contrary to the recommendations of the family report in the original proceedings.  However the recommendation in the family report was predicated in part upon the implementation by the parties of the processes that involved both of them in working cooperatively through community-based organisations towards a better understanding of how the child could have a proper and meaningful relationship with each of them.  For whatever reasons this has not occurred effectively and accordingly it may be necessary to take a more pragmatic view about the future. 

6. At this point, without in any way suggesting that to do this would be experimental, it seems to me that the opportunity to provide three periods of three hours (unsupervised) twice a week in which the child could spend time with her father would assist the Family Consultant in her evaluation of the relationship between the child and each of the parents and would provide in circumscribed but reviewable circumstances an opportunity for the parties to expand the cooperation and trust they must exercise if effectively they are to be good parents for the child. 

1. The first of such occasions should commence on the morning of 9 October 2007 followed by the usual “Wednesday time” expanded to three hours but occurring on Thursday, that is 11 October 2007.  That arrangement of Tuesdays and Thursdays (noon to 3 pm) to continue for the two weeks after next week (a total of three weeks). Thereafter the time the child spends with her father will revert to the Wednesday three hour (between noon and 3 pm) unsupervised period until the review by Ms L has been concluded.

2. During that period I would hope that Ms L will have the opportunity to conduct a review as suggested by my original orders and be in a position to advise the Court as to further steps that might properly be taken to advance the best interests of the child.  In this regard the matter will be back before me, unless the Family Consultant suggests that there should be an earlier time, on the afternoon of Wednesday 28 November 2007 (at 2:15pm). 

Costs

1. This is a matter in which the father seeks costs against the mother.  The provisions of s 70NEB(1)(f) apply and I should make an order for costs.

2. It does not appear that this section calls into effect the provisions of s 117 of the Family Law Act. Nevertheless even if I were to take the provisions of that section into account the husband was less successful than more successful in these proceedings - he was certainly not wholly unsuccessful.  In addition the proceedings were brought about by the failure of the mother to comply with Court orders as found in these proceedings.  Those factors in themselves are enough, in my opinion, to justify the imposition for an order for costs. 

3. The financial circumstances of each of the parties are not adequately known to me to enable me to take them into account.  I am however conscious of the fact that there is a property settlement pending between the parties in that I am reserved in the delivery of my decision about the contest between the parties. 

4. My order in this matter is that the mother should pay the father’s costs of and incidental to this application either as assessed or agreed but that the payment of such costs should be postponed until the division of property between the mother and the father pursuant to the orders that will flow from the judgment that I am presently reserved to deliver. 

5. The precise time for payment of the costs will await a further determination by me in the course of the orders in the property proceedings.  This was depend on the way in which the property is divided and the access by the mother to appropriate funds. 

6. The application about contravention is otherwise removed from the pending cases list. 

Afterword

1. Although there is no formal application the father sought an amendment to the existing orders about the time that the child would spend with him in the final paragraphs of his affidavit filed on 11 September 2007.  I have by my application of compensatory arrangements for the next little time taken the view that it is unnecessary for me to make any further order amending the interim arrangements pending the review by the Family Consultant.  There is therefore no other matter pending at this point apart from the finalisation of the property matters between the parties. 

I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks.

Associate: 

Date:  5 October 2007