McDonald and Minchin (No.2)

[2011] FMCAfam 682

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCDONALD & MINCHIN (No.2) [2011] FMCAfam 682

FAMILY LAW – Children – contravention – contravention of parenting orders – reasonable excuse – whether reasonable excuse for contravention established.

Family Law Act 1975 (Cth), ss.70NAC, 70NAE, 70NAF, 70NEA

Applicant: MR MCDONALD

Respondent: MS MINCHIN

File Number: WOC 675 of 2009

Judgment of: Scarlett FM

Hearing dates: 29 June and 1 July 2011

Date of Last Submission: 1 July 2011

Delivered at: Sydney

Delivered on: 1 July 2011

REPRESENTATION

Counsel for the Applicant: The Applicant appeared in person

Solicitors for the Applicant: No solicitor

Counsel for the Respondent: The Respondent appeared in person

Solicitors for the Respondent: No solicitor

ORDERS

1. The Respondent Mother did on 14 April 2011 without reasonable excuse contravene Order 5 made on 30 October 2009.

2. The Respondent Mother did on 14 March 2011 without reasonable excuse contravene Order 5 made on 30 October 2009.

IT IS NOTED that publication of this judgment under the pseudonym McDonald & Minchin (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

WOC 675 of 2009

MR MCDONALD

Applicant

And

MS MINCHIN

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the Father of a boy named [Z] claiming that the Mother contravened Interim Orders made in this Court on 30^th October 2009. The parties have three children, [X], [Y] and [Z], and the orders refer to them all, but this application only concerns [Z].

2. The Orders said to have been contravened are Orders 2, 3, 4 and 5. The Application also claims that the Respondent Mother also contravened Notations A and B to those orders, but Notations are not Court orders. They merely record facts or, in some cases, the parties’ intentions and, consequently, they cannot be enforced in contravention proceedings.   

3. Order 2 states:

   That the Mother be restrained from bringing the children into contact with her former boyfriend, Mr H.

4. Order 3 states:

   That the parties use their best endeavours to ensure that neither parent is the subject of denigration in the presence of the children, and the proceedings are not discussed in their presence, except for professional persons required to communicate with the children.

5. Order 4 states:

   That the children live with their mother from and after school on each alternate Monday commencing 2 November 2009 until before school on the following Monday.

6. Order 5 is closely connected with Order 4, as it provides:

   That the children otherwise live with their father.

The Alleged Contraventions

1. By his Application, filed on 27^th April 2011, the Father claims that the Mother contravened Orders 2, 3 and 5 on 11^th April 2011 and Orders 4 and 5 on 14^th March 2011.

2. The first count claims that at 9:00am on 11^th April 2011 at [address omitted], the Mother without reasonable excuse refused to return the child [Z] to allow him his week with his father and siblings[1] on multiple occasions.

   [1] i.e. his sisters Alexandra and Joanna

3. The second count claims that at 2:50pm on 14^th March 2011, at [omitted] School, the Mother without reasonable excuse attended the school of the child [Z] and prevented the Father from collecting the child in accordance with Court orders on three consecutive days from 14/3/2011 until 17/3/2011.

4. The first count claims a contravention of Orders 2, 3 and 5. The second count claims a contravention of Orders 4 and 5.

5. The Mother has told the Court that she admits the contravention set out in the first count but has a reasonable excuse. She has also told the Court that she denies the contravention, or contraventions, alleged in the second count.

The Relevant Law

1. Contravention of a parenting order is defined by s.70NAC of the Family Law Act. Subsection 70NAC(a) provides that where a person is bound by the order, he or she contravenes the order when he or she has:

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

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

2. Once the contravention has been proved, or admitted, it is up to the Respondent to show that he or she had a reasonable excuse for contravening the order (s.70NEA(1)(c)). It is not up to the Applicant to disprove that the Respondent had a reasonable excuse.

3. The standard of proof for establishing the contravention of the order is the balance of probabilities (s.70NAF(1)). Similarly, once the contravention has been established, the standard of proof for establishing a reasonable excuse is the balance of probabilities (see subsection 70NAF(3)).

Evidence

1. The Mother admitted the contravention set out in the first count, with a reasonable excuse, and denied the second contravention allegation. For reasons of procedural fairness, I proceeded to hear the second count, where the contravention had been denied.

2. The Father gave oral evidence and was cross-examined. The Father’s evidence was that on Monday 14^th March 2011 he attended at the child’s school to collect him, but had some difficulty in finding a parking place. He noticed that the Mother’s car was there. The Father deposed that he went into the school to find the child but could not find him. He spoke to one of the teachers who told him that the Mother had taken the child a short time earlier.

3. The Father also deposed that he attended the school the following day to collect the child and arrived at 2:50pm. He saw the Mother standing inside the school with the child. The Mother left the school with the child at 3:07pm.

4. The Father deposed in his affidavit that on Wednesday 16^th March he attended at the school at 2:47pm. He saw the Mother’s car there. He waited, but neither the Mother nor the child appeared.

5. On Thursday 17^th March 2011 the Father attended the school during the morning and saw the child. He showed a copy of the Court orders to the school Principal and arranged to collect the child early from school, at 1:30pm.

6. Annexed to the Father’s affidavit of 29^th March 2011 is a letter dated 11^th March 2011 from the Mother’s solicitors to the Father’s solicitors. The letter says (relevantly):

   We are instructed that our client has informed [Z]’s school Principal and class teacher of the terms of the interim parenting orders. So as to ensure that there was no misunderstanding and/or confusion as to living arrangements for [Z], or client not only spoke with the school Principal and [Z]’s class teacher but informed them in writing of the ongoing parenting arrangements for [Z]. Our client has been informed by teaching personnel that your client has not contacted [Z]’s school nor been in attendance to collect [Z] from his school on the  Monday when [Z] for that week is to spend time with his father.  

7. The letter goes on to say:

   In conclusion we note that your staff person indicated to the writer today that your client proposes to collect [Z] from his school at the conclusion of school Monday. The following Monday our client will in turn collect [Z] again at the conclusion of his school pursuant to the terms of the interim parenting orders.

8. In cross-examination, the Father said that he had not attended the school in 2011 until after the Court date of the substantive proceedings between the parties on 17^th February 2011, although school had started at the end of January. The first time he had attended the school to collect the child was on Monday 14^th March. He waited for that long in order to avoid a confrontation with the Mother. He was waiting for advice from his solicitors.

9. The Father said that he did not pick [Z] up when he saw the Mother there so as to avoid a confrontation with her.

10. It was submitted by the Mother that the Father had not established a contravention of the orders.

Contravention established 

1. I am satisfied that the Father has established a contravention sufficient to place an onus on the Respondent Mother to establish whether she has a reasonable excuse.

2. The count alleges a contravention of the orders on three occasions. In my view, one contravention has been made out, on 14^th March 2011, the date alleged. It is a contravention that continued for several days.

3. The application claims to a contravention of both Orders 4 and 5. Order 4 refers to the child (children) living with the Mother on alternate weeks. In my view, what has been contravened is Order 5, that says:

   That the children otherwise live with the father.   

4. As the evidence establishes that the child [Z] was to live with the Father that week, and this information was communicated by the Mother’s solicitor to the Father’s solicitor by the letter of 11^th March 2011, the contravention has been established.

Reasonable Excuse

1. The onus is on the Respondent to establish, on the balance of probabilities, that she had a reasonable excuse for contravening that Order. The Respondent has also told the Court that she had a reasonable excuse for contravening the Orders, or Orders, set out in the first count.

2. Section 70NAE of the Act contains a list of examples of reasonable excuses for contravening an order, but it is not an exhaustive list (see subsection 70NAE(1)). Essentially, they fall into two categories:

   a)Where the Respondent did not understand the obligations imposed by the order and the Court is satisfied that the respondent ought to be excused (s.70NAE(2)); or

   b)Where the Respondent believed on reasonable grounds that not allowing the child and the person to communicate/spend time together was necessary to protect the health and safety of the respondent and/or the child (or someone else) and the period of the contravention was not for longer than was reasonably necessary (s.70NAE(3)-(7)).  

3. There can be other reasons, which the Respondent would need to establish on the balance of probabilities.

4. The Respondent filed an affidavit on 30^th June 2011, sworn or affirmed that same day, in which she set out the reasons why she claimed she had a reasonable excuse for contravening the orders. 

5. In respect of count 2, alleging a contravention of Orders 4 and 4 on 14^th March 2011, continuing to 17^th March, she claims a reasonable mistake of fact.

6. In respect of count 1, alleging a contravention of Orders 2, 3 and 5 on 11^th April 2011, the Respondent claims a reasonable excuse that can be described as acting in a way that was necessary to protect [Z]’ health and safety.  

7. The Respondent deposes in her affidavit that she had no knowledge that the Applicant intended to pick up the child from school that week. He had not done so in earlier weeks, and she denied seeing him at the school on 14^th or 15^th March. She also stated that the first time she saw the Applicant at the school was at approximately 3:17pm on Wednesday 16^th March, when she saw him stop his car and take a photograph of her whilst she was leaving the school, having picked up the child from school.

8. The Respondent also denies that the letter from the solicitors Maguire and McInerney of 11^th March 2011 was written on her instructions. She makes an allegation about her former solicitor, Mr Davies it is not necessary to canvass, and states that he wrote “an unauthorised letter” to the Applicant’s solicitors about appointing a real estate agent to act on the sale of the former matrimonial home. She states:

   10.On 7 March, I instructed Michael Davies via email that I did not authorise the letter and in fact specified that I did not want [M] to sell my home (Annexure B, email from me to Michael Davies).

   11.My lawyer became angry at my refusal to consent to his wishes to have my home sold by [M].

   12.My professional relationship with my lawyer ceased from that date and the only correspondence I have received from my lawyer since that date has been demands for payment of outstanding accounts.[2]

   [2] Affidavit of Ms Minchin 30.6.2011 at paragraphs [10]-[12]

9. The printout of the email dated 7^th March 2011 that forms Annexure B to the Respondent’s affidavit states:

   Hi [Mr D],

   You do not have my permission to send your proposed letter of 7 March to Mr McDonald’s solicitor.

   I do not consent to Mr H auctioning my home. I do not consent to Mr McDonald dictating how the sale of my home shall happen.

   Mr S sells my home as per the listing agreement I provided to

   
   

   Mr McDonald, or [business omitted] can proceed to sell the home. That is what I want you to write to Mr McDonald’s solicitor.

   I will telephone you tomorrow.

   [Ms Minchin][3]

   [3] Ibid Annexure B

10. The printout of the Respondent’s email is reproduced in full. Nowhere does it state that the solicitor’s instructions have been withdrawn, nor does it refer to the arrangements about the child [Z]. The email indicates that the Respondent intended to telephone the solicitor the following day, which is not consistent with the Respondent’s view that he was no longer acting for her.

11. There is no evidence that the Respondent informed the Applicant or the Court that the solicitor’s instructions had been withdrawn.

12. I am not satisfied that the Respondent established a reasonable excuse in respect of the alleged contravention. 

13. The Applicant also contends that the Respondent contravened Orders 2, 3 and 5 at 9:00am on 11^th April 2011.

14. The Respondent has admitted that contravention but claimed a reasonable excuse. Notwithstanding the Respondent’s admission, I am not satisfied that there is any evidence of a contravention of Orders 2 and 3 on 11^th April 2011. There is certainly evidence of a contravention of Order 5 on that date, as the order relates to the child spending alternate weeks living with the Father, and there is no issue that the week commencing Monday 11^th April 2011 was a week when the child [Z] would have been living with him.

15. However, Orders 2 and 3 relate to completely different subjects.

16. Order 2 states:

    That the mother be restrained from bringing the children into contact with her former boyfriend, Mr H.   

17. Order 3 states:

    that the parties shall use their best endeavours to ensure that neither parent is the subject of denigration in the presence of the children, and the proceedings are not discussed in their presence, except for professional persons required to communicate with the children.

18. There is no evidence showing a contravention of either of those orders on that date. Notwithstanding the fact that the Respondent has admitted contravening those orders, the admission cannot be accepted as there is no evidence of a contravention. However, the claim also includes an allegation of contravention of Order 5, that says:

    That the children otherwise live with the father.

19. The admission by the Respondent can be accepted, as there is affidavit evidence sufficient to establish a contravention.

20. The Respondent claims a reasonable excuse. In her affidavit of

    
    

    30^th June 2011, the Respondent claims that the child [Z] told her in no uncertain terms that he did not wish to go to his father’s house and expressed a fear that he would be kept there for the entire school holidays. She described the child as “visibly shaken at the prospect of leaving me on a Monday morning at school knowing he would not see me for a whole week and always wondering if in fact he’d see me at all.”[4]  

    [4] Affidavit of Ms Minchin 30.6.2011 at [20]

21. The Respondent deposed that she had enrolled [Z] into a program run by Relationships Australia, called “Healthy Relationships”, which took place on Wednesday 13^th April. The Respondent deposed:

    22.Given [Mr McDonald] continued contravention of orders that required him to take [Z] to therapeutic counselling with Ms M, I was sure that  Mr McDonald would refuse to take [Z] to this program as well.

    23.The Healthy Relationships program was aimed at teaching children in conflicted family situations skills and coping strategies that would better equip them to deal with their situation.[5]

    [5] Ibid at [22]-[23]

22. [Z] attended the program on that day. There is no evidence that he then went on to his father’s home at all that week. The evidence shows that the Respondent had previously enrolled the child in that program, notwithstanding that he was to spend that week with his father.

23. There is evidence that [Z] was experiencing signs of distress and a program such as “Healthy Relationships” would no doubt be of assistance to children in the midst of parental conflict. However, to establish a reasonable excuse under s.70NAE(4) the Respondent would have to show that “the period during which, because of the contravention, the child did not live with 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).

24. The Respondent has not established that the child did not spend time with the Father for a period that was not longer than was necessary. He did not spend any of that week with the Applicant. There is no explanation as to why the Respondent did not make arrangements for [Z] to go to his father’s home on 14^th April, the day after he went to the “Healthy Relationships” program. I note that the degree of communication between the parties is very poor, and almost non-existent, which is a reason why Court orders need to be followed strictly, to avoid confusion.

25. I am not satisfied that the Respondent has established a reasonable excuse for a contravention on 14^th April 2011 of Order 5 made on 30^th October 2009.

26. Consequently, the finding of the Court is that:

    a)The Respondent Mother did on 14^th April 2011 without reasonable excuse contravene Order 5 made on 30^th October 2009; and

    b)The Respondent Mother did, on 14^th March 2011 without reasonable excuse contravene Order 5 made on 30^th October 2009.

27. The Orders of 30^th October 2009 have now been discharged, but they were in force at the time of the contraventions. The Court must consider what orders should be made as a result of the contravention findings.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Date:  13 July 2011