Minh and Cong
[2010] FMCAfam 1465
•8 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MINH & CONG | [2010] FMCAfam 1465 |
| FAMILY LAW – Contravention – parenting orders – Part VII, Division 13A Family Law Act 1975. |
| Evidence Act 1995, s.140 Family Law Act 1975, ss.62B, 65N, 65DA, 70NAC, 70NAD, 70NAE, 70NAF, 70NBA, 70NDB, 70NEB, 70NEC, 70NFB, 70NEC Federal Magistrates Court Rules 2001, Schedule 1 |
| In the Marriage of O’Brien (1992) 15 Fam LR 723 In the Marriage of Stavros (1984) 9 Fam LR 1025 In the Marriage of Stevenson & Hughes (1993) 16 Fam LR 443 TVT & TLM [2006] FMCAfam 20 |
| Applicant: | MR MINH |
| Respondent: | MS CONG |
| File Number: | SYC 847 of 2008 |
| Judgment of: | Monahan FM |
| Hearing date: | 10 September 2010 |
| Date of Last Submission: | 8 October 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 October 2010 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | Mr Schofield |
| Counsel for the Respondent: | None |
| Solicitors for the Respondent: | Self Represented Litigant |
ORDERS
AND UPON:
(a)the Court being satisfied that the Respondent, MS CONG has committed a contravention of an Order under the Family Law Act 1975 (“the Act”) affecting [X] (“the child”) (being paragraph 5 of the Orders made by this Court, by consent, on 17 June 2009);
(b)the Respondent not having proved that she had a reasonable excuse for the contravention referred to in (a) above;
(c)no Court having jurisdiction under the Act having previously determined that the Respondent has, without reasonable excuse, contravened the Order referred to in (a) above; and
(d)the Court being satisfied that Subdivision E of Division 13A of Part VII of the Act applies to the contravention referred to in (a) above.
THE COURT ORDERS THAT:
Within 21 days pursuant to s.70NEB(1)(a) of the Act the Respondent do as follows:
(a)obtain a recommendation from either Relationships Australia or Unifam regarding her enrolment in a suitable post-separation parenting course (“the Course”);
(b)enrol, attend and complete the Course as recommended in (a) herein at her own expense; and
(c)upon her enrolment advise the Applicant’s solicitors of the details of the Course and subsequently provide to them evidence of the successful completion of the Course.
Pursuant to s.70NEB(1)(f) of the Act the Respondent pay the Applicant’s costs in these proceedings fixed in the sum of $2,505.00.
Compliance with paragraph two (2) herein is stayed until 3 December 2010.
The Respondent make, file and serve a financial statement by 4:00pm on 26 November 2010.
Pursuant to s.70NEB(1)(b) of the Act, paragraph five (5) of the Orders made by this Court, by consent, on 17 June 2009 is amended for all school term periods in 2011 only to read as follows:
“5.11 During school terms:
a) From 6:00pm on the first Wednesday of each school term and each alternate Wednesday until the commencement of school on the following Monday PROVIDED THAT such time will cease at 9:00am on Mother’s Day.”
All extant applications be adjourned to this Court on 3 December 2010 at 10:00am for mention (“the mention hearing”).
AND THE COURT NOTES THAT:
(A)The Course should include a component with regard to the importance of complying with Court orders.
(B)The purpose of the mention hearing is to consider the cost and stay orders made in paragraphs two (2) and three (3) herein and to ensure compliance with the parenting orders, which remain in full force and effect. The Court will also require confirmation from the Respondent that paragraph one (1) herein has been complied with.
(C)In the event that the Respondent has not complied with paragraph five (5) of the Orders made by this Court, by consent, on 17 June 2009 then at the mention hearing the Court may consider the imposition of a Bond pursuant to s.70NEB(1)(d) of the Act in addition to orders made in paragraphs 1, 2 and 5 herein.
(D)Pursuant to ss.65DA(2) and 62B of the Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
(E)An interpreter will be required for the Respondent in the Mandarin language at the mention hearing.
IT IS NOTED that publication of this judgment under the pseudonym Minh & Cong is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 847 of 2008
| MR MINH |
Applicant
And
| MS CONG |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application filed on 2 July 2010 by MR MINH (“the father”) alleging contravention of the current final parenting orders by
MS CONG (“the mother”), also known as Ms Cong. The application is defended by the mother.
The relevant child is [X], born [in] 2003, (“[X]”). The parenting arrangements for [X] are relatively typical. Pursuant to comprehensive consent orders made by Kemp FM on 17 June 2009, [X] lives with the mother and spends defined periods with the father (“the 2009 orders”). More specifically, the parenting orders provide for the parties to have equal shared parental responsibility for [X] and, pursuant to paragraph 5 of the 2009 orders, also provide for [X] to spend time and communicate with the father as follows:
“5.1 From 10:00am on 27 June 2009 until 10:00am on Sunday,
28 June 2009.
5.2 From 6:00pm on Friday 10 July 2009 until 10:00am on Sunday, 12 July 2009 and for the same period on each alternate weekend until Sunday, 13 December 2009.
5.3 From 6:00pm on Wednesday, 9 September 2009 until the commencement of school on the following day and on each alternate Wednesday thereafter.
5.4 From 6:00pm on Wednesday, 4 November 2009 until commencement of school on the following day and on each alternate Wednesday thereafter with the intention that [X] will spend time with the father on each Wednesday under 5.3 and 5.4.
5.5 From 12 noon on Christmas Day 2009 until 10:00am on 27 December 2009.
5.6 From 9:00am until 5:00pm on Father’s Day.
5.7 From 9:00am Wednesday, 15 July 2009 until 10:00am Friday, 17 July 2009.
5.8 From 9:00am Wednesday, 22 July 2009 until 10:00am Thursday, 23 July 2009.
5.9 From 9:00am Thursday, 8 October 2009 until 10:00am Friday, 9 October 2009 with the intent that [X] will continuously be with her father from Wednesday, 7 October.
5.10 From 9:00am Monday, 12 October until 10:00am Wednesday, 14 October 2009.
5.11 In 2010 and thereafter, during school terms:
(a) From 6:00pm on the first Friday of each school term and each alternate Friday thereafter until the commencement of school on the following Monday, provided that such time will cease at 9:00am on Mother’s Day;
(b) From 6:00pm on each Wednesday until the commencement of school on the following day;
(c) From 9:00am Father’s Day until the commencement of school on the following day.
5.12 During school holidays:
(a) In January 2010 from 6:00pm on Sunday 4, 11, 18 until 10:00am on Wednesday 7, 4, and 21, being three periods of three nights each;
(b) In the school holiday periods after terms 1, 2, and 3 for one week as agreed, or in the absence of agreement, from 6:00pm on the first Saturday of the holiday period until 6:00pm on the second Saturday;
(c) During Christmas 2010/2011 until [X] is 10 years of age, for two non-consecutive weeks as agreed, or in the absence of agreement, from 12 noon Boxing Day until 12 noon New Year’s Day and from 6:00pm on the second Saturday of January until 6 pm on the third Saturday;
(d) During Christmas 2013/2014 and thereafter, for two consecutive weeks as agreed, or in the absence of agreement, from 12 noon on Christmas Day until 12 noon 8 January.
5.13 From 6:00pm Christmas Eve until 12 noon Christmas Day in each even-numbered year and from 12 noon Christmas Day until 12 noon Boxing Day in each odd-numbered year, with the intent that the period from 6 pm Christmas Eve to 12 noon Boxing Day will be shared between the parties every year.
5.14 Such other or different time as agreed.”
Paragraph 6 of the 2009 orders also states that the party with whom [X] is not then spending time with will have time with her on her birthday at as agreed or otherwise from 3:00pm to 7:00pm. As indicated, they are the operative orders with respect to [X] spending time and communicating with the father.
The contravention application alleges that the mother has, on more than one occasion, failed to comply with the 2009 orders. The father’s contravention application is supported by his affidavit sworn 28 June 2010 and filed on 2 July 2010 (“the father’s affidavit”). Following a request from the Court, given the number of contraventions alleged, the father chose the following times and dates as the breaches complained of:
·16 December 2009;
·4 January 2010, although he amended it to 3 January 2010;
·17 January 2010, although he amended it to 16 January 2010; and
·3 March 2010
with all being an alleged breach of paragraph 5 of the 2009 orders. Overall, it appears that the father has not spent any time or has spent little time with [X] since the 2009 orders were made.
The mother gave oral evidence and was cross-examined. In her response, the mother argues that while the contravention times and dates are admitted, there were reasonable excuses for the contraventions. For reasons that will be explained further, the mother also relies on an apprehended domestic violence order (“ADVO”) document, which she filed on 24 September 2010, pursuant to the orders made by this Court on 10 September 2010, indicating that there is an existing ADVO in place and that it expires on 23 October 2010.
At the hearing of the contravention application, the father was legally represented on a pro bono basis by Mr Schofield and the mother was self-represented.
Background
It would appear the parties commenced cohabitation upon their marriage in April 2004 and separated three years later in April 2007.
Proceedings were commenced in this Court on 15 February 2008 by the father seeking various parenting orders.
This application came before Kemp FM on 16 April 2008, and various interim orders were made by consent on that day including orders for:
·a DNA parentage test, given the mother’s refusal to acknowledge him as the father of [X];
·[X] to live with the mother; and
·[X] to spend time with the father at a contact centre.
Following various mention dates, Kemp FM made orders on 30 July 2008 listing the matter for final hearing in mid-2009 and requesting that a family report be prepared.
The matter returned before Kemp FM on 14 November 2008 and on that occasion his Honour revised the spend time orders by consent, ceasing supervised contact on and from 30 November 2008. Thereafter, the father was instead to spend unsupervised with [X], as follows:
·Commencing 16 November 2008, each Sunday between 10:00am and 12 noon;
·From 1 December 2008 until the end of January 2009, each alternate week from Saturday 12noon until 5:00pm; and
·From 7 February 2009 from 2:00pm Saturday until 10:00am Sunday.
When the matter next returned before Kemp FM on 12 February 2009, his Honour noted that the overnight time with the father had not commenced because of delay and the father requiring a bed for [X].
A family report was prepared by Ms M, family consultant, on 1 June 2009 (“the family report”) and in that report Ms M made certain recommendations.
At paragraph 38 of the family report, Ms M stated:
“If it is decided that [X] continue to spend overnight time with the father and that this time be increased, because of the disrupted history of the relationship between [X] and the father, it would be in [X]’s interest for the increase to occur gradually. For example, the overnight time could be increased on a non-consecutive basis, in the first instance, which might be done by adding a mid-week night into the week alternate to the weekend overnight time that [X] currently spends with her father and that the weekend time could be extended to include the full days of Saturday and Sunday. When she has had an opportunity to adjust to this, a Friday night could be introduced into the weekend that she normally spends with her father.”
At paragraph 39 of the family report, Ms M stated:
“With regard to school holidays, it is recommended that if it is deemed appropriate that [X] spend longer periods of time with her father, this time be built up in short bursts to a maximum of a week at a time and unless otherwise agreed kept at this maximum until [X] reaches around nine or 10 years of age.”
At paragraph 40 of the family report, Ms M made the following recommendation:
“If there is doubt about Mr Minh’s capacity to cope with the stress involved with caring for a child, the orders would need to be shaped around the level of stress he could potentially manage. If it is thought that a problem would only be likely to occur if
Mr Minh were to be in a position of having to care for [X] for an extended period of time, then the mother’s amended response and its non-consecutive overnight times might be a suitable option for the Court to consider as a longer-term option.
Mid-week overnight time would need to be monitored for any impact on [X]’s ability to continue to function well at school, and school holiday time would probably be best kept to short periods, rather than progressing as suggested in paragraph 39. Otherwise, a day only pattern of one day each weekend and one day each week, from after school until 7 pm, could be an option to consider.”
When the matter came on before Kemp FM for final hearing on
17 June 2009, the parties entered into comprehensive consent minutes which were approved by his Honour on that day (“the parenting orders”). By way of summary, they provided that:
·the parties were to have equal shared parental responsibility for [X];
·[X] was to live with the mother;
·[X] was to spend time with the father as previously stated;
·there be mutual constraints on consuming alcohol or using prohibited drugs whilst [X] is in the care of the parties; and
·both parties be obliged to advise the other if [X] is hospitalised, etcetera, or if either change their address or telephone numbers.
Paragraphs 10 to 15 of the orders are particularly noteworthy and read as follows:
“10. That both parties are permitted to attend any of the child’s school or extracurricular activities which parents would usually attend.
11. That the mother will take any further steps required to authorise the child’s school to furnish the father with copies of school reports, newsletters, and notices relating to the child.
12. That both parties are restrained from denigrating the other or the extended family of the child in the presence or hearing of the child in a manner likely to come to her attention.
13. The mother is restrained from removing the child from the Commonwealth of Australia without the written consent of the father.
14. The Australian Federal Police place the name of [X] on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain her name on the watch list until further order of the Court.
15. That the mother be restrained from representing to the child that anyone other than the biological father is her natural father.”
And the Court Notes That:
It is the father’s intention that if the child becomes distressed at any time in his care, he will contact the mother.”
The Law
The Court notes that s.65DA(2) of the Family Law Act 1975 (“the Act”) provides that it is
“a duty of the Court to include, in a parenting order, particulars of:
(a) The obligations that the order creates; and
(b) The consequences that may follow if a person contravenes the order.”
This duty upon the Court ensures that persons affected by parenting orders other than child maintenance orders must be:
i)provided with information about obligations that the orders create and consequences that may follow if a person contravenes the order. This information is to be explained in a language that is likely to be readily understood by the person to whom the order is directed; and
ii)be informed of the availability of programs to help people understand their responsibilities under parenting orders.
The particulars are to be set out in a standard form and annexed to the orders. The Court has a brochure setting this out. The legal practitioner representing a party can be requested to fulfil the Court’s duties to provide particulars and explanations. It is certainly clear from my reading of the Court file, that s.65DA of the Act was complied with and that the parties were given the prescribed information when they received the 2009 orders.
Part VII, Division 13A of the Act deals with the consequences of failure to comply with orders and other obligations that effect children. Section 70NAD of the Act deals with the requirements taken to be included in certain orders. Under s.70NAD(b), the order relevant to a contravention must be a parenting order and this includes an order relating to the time that a child spends with a parent in accordance with s.65N of the Act.
Meaning of “contravened an order”
Section 70NAC of the Act deals with meaning of “contravened an order”. It states:
“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, or
(b) Otherwise he or she has:
(i) Intentionally prevented compliance with the order by a person who is bound by it, or
(ii) Aided or abetted a contravention of the order by a person bound by it.”
In other words, in relation to the non-compliance with a Court order, which is the allegation in the present case, it is clear that this provision requires the Court to be satisfied that the respondent has either intentionally failed to comply with, or made no reasonable attempt to comply with, the relevant Court order.
It is the applicant who brings the contravention application that bears the onus of proving any contravention by the respondent on the balance of probabilities. At this point it should be noted that s.140 of the Evidence Act 1995, which refers to the standard of proof, provides for the Court to take into account the nature of the proceedings in determining whether it is satisfied to the requisite standard. Section 140(2) states:
“Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.”
Meaning of “reasonable attempt to comply with order”
The issue of whether a respondent has made a reasonable attempt to comply with the order has been considered in a number of cases, such as In the Marriage of Stavros (1984) 9 Fam LR 1025 where (at 1030) the Full Court of the Family Court of Australia found that it was clear that a parenting order in relation to the time a child spends with the other parent is not a mere declaration, but rather casts an obligation upon the relevant parent, such as the mother in this case:
“to take reasonable steps to deliver the child to the other parent at the commencement of the contact period.”
Whether the steps that were taken by the relevant parent were a reasonable attempt to comply with the relevant parenting order will ultimately depend upon the facts and circumstances of each case. As Riethmuller FM stated at [33] in the case of TVT & TLM [2006] FMCAfam 20:
“It is accepted that the residence parent has a duty to ensure that the child not only attends but does so in a positive manner.”
Indeed, the Full Court of the Family Court of Australia stated in the case of In the marriage of Stevenson & Hughes (1993) 16 Fam LR 443 at 450 (per Fogarty J) that a primary carer parent, such as the mother, must appreciate that they are not entitled to treat the other parent:
“As an enemy who are to be thwarted wherever possible, either by active steps or by passive resistance.”
Meaning of “reasonable excuse for contravening an order”
Section 70NAE deals with the meaning of a reasonable excuse for contravening an order. Section 70NAE(2) states:
“A person (the respondent) is taken to have a reasonable excuse for contravening an order under the Act affecting children if:
(a)The respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention understand the obligations imposed by the Court on the person who was bound by it; and
(b)The Court is satisfied that the respondent ought to be excused in respect of the contravention.”
Section 70NAE(5) deals with contravening an order as to whom a child is to spend time with. It states:
“A person (the respondent) is taken to have a reasonable excuse for contravening a parenting order, to the extent to which it deals with whom a child is to spend time with, in a way that resulted in a person and the child not spending time together, as provided for in the order if:
(a) The respondent believed, on reasonable grounds, that not allowing the child and the person to spend time together was 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 and the person did not spend time together was not longer than necessary to protect the health of the person referred to in paragraph (a).
This provision appears to form the basis of the mother’s Response in these proceedings.
As to the defence available formerly under s.112AC (which is in similar words to that now available under s.70NAE) Smithers J, in the case of In the Marriage of O’Brien (1992) 15 Fam LR 723, stated at 727:
“It seems to me that the passing of section 112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of the child is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether in the view of the custodial parent or in the view of the custodial parent on reasonable grounds that the caring out of the access order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person including the child.”
Section 70NAF deals with the necessary standard of proof, stating that:
“(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.”
Section 140 of the Evidence Act 1995 has already been referred to in this decision. Thus, in order to determine whether a reasonable excuse has been shown, an objective test should be applied.
In summary, the Court must be satisfied:
·firstly, that there has been a contravention of the relevant order; and, if so,
·secondly, the Court must be satisfied on the balance of probabilities that the contravention was without reasonable excuse.
If a contravention is established, then regardless of whether the contravention was reasonably excused, the Court has powers under s.70NBA to vary a parenting order and powers under s.70NDB to make an order compensating a parent for a time lost. More specifically, s.70NDB(1)(c) states that the Court:
“May make a further parenting order that compensates the person for time the person did not spend time with the child (or the time that the child did not live with the person) as a result of the current contravention.”
Indeed, the provision is clear that the Court is required to consider a “time lost order”, often referred to in these types of proceedings as “make up time”, provided that the provision of such time is in the best interests of the particular child.
Contravention without a reasonable excuse
Subdivisions E and F in Part VII, Division 13A of the Act, when read together, deal with a contravention or contraventions made without a reasonable excuse. Subsection E deals with the less serious contraventions and subdivision F deals with the “more serious contraventions”.
Apart from a time lost order, the Court has a range of powers to deal with inexcusable contraventions, that include:
(a)In the most serious cases under s.70NFB(2):
(i)A community service order;
(ii)A bond under s.70NFE;
(iii)A fine (of not more than 60 penalty units);
(iv)A sentence of imprisonment; and
(v)A costs order; and
(b)In the less serious cases under s.70NEB(1):
(i)An order to attend a post-separation parenting program to better understand and appreciate the obligations created by parenting orders;
(ii)A bond under s.70NEC; and
(iii)A costs order.
So to summarise once more, the Court must be satisfied:
·firstly, that there has been a contravention of the relevant parenting order;
·secondly, the Court must be satisfied on the balance of probabilities that the contravention was without reasonable excuse;
·thirdly, if there is no reasonable excuse, the Court must consider the imposition of an appropriate penalty and/or a time lost order that is in the best interests of the child. The type of penalty depends upon whether the contravention is less serious, that is subdivision E, or more serious, which would attract subdivision F;
·lastly, if the Court is satisfied there is a reasonable excuse, then the Court is still under an obligation to consider whether a time lost order should be made, and if so, can only do so if that is in the child’s best interests.
Evidence and parties’ submissions
The father
In addition to the father’s affidavit on which he relied, the father gave oral evidence and was cross-examined by the mother.
The father confirmed that he has spent little time with [X] since the parenting orders were made and that she had, to date, never spent any overnight time with him. He confirmed that the parenting orders followed a lengthy period of litigation, where not only his paternity of [X] was disputed by the mother, but also his ability to safely care for [X]. The father also confirmed that he had spent some $80,000 in legal costs prosecuting his case to spend time with his daughter. The father went on to reiterate the complaints that he makes in the last application.
The mother cross-examined the father in regard to his current flatmate and whether the father’s rented accommodation was suitable for [X]. In respect of the accommodation and flatmate, the father asserted that the flatmate was a suitable flatmate and that the accommodation was appropriate accommodation. The mother also questioned the father as to his alleged depression, which he acknowledged was a feature of his past which followed the breakdown of his relationship some three and a half years ago.
The mother
While the mother acknowledged each and every complaint made by the father and, moreover, confirmed that [X] had spent no overnight time with the father since the parenting orders were made, the mother asserted that she should be reasonably excused nonetheless.
The mother’s reasons were as follows:
·firstly, the mother does not consider that the father’s accommodation is suitable;
·secondly, she has concerns about the father’s past and present flatmates;
·thirdly, she considers that the father suffers from a mental illness or, otherwise, suffers from depression;
·fourthly, she maintains that she only signed the consent orders because she was told to do so by her former solicitor; and
·fifthly, there is a current ADVO in place.
The mother was cross-examined by the father’s solicitor and conceded that the parenting orders provided for [X] to spend overnight time with the father. She also conceded that the family consultant, Ms M, had stated the following in paragraphs 12-14 of the family report:
“12. Ms Cong raised a number of issues in relation to Mr Minh. One of these is that he suffers from depression. She expressed the view that because of his difficulties he cannot deal with [X] for any length of time. For this reason she is opposed to [X] spending half the school holidays with her father. She indicated further that she is concerned about [X] spending the night with him, could not understand why the Magistrate had made the order for overnight time and that she had been ‘shocked and saddened’ by it.
Ms Cong indicated feeling some reassurance from the stipulation that Mr Minh should be drug and alcohol free at times that [X] is in his care.
“13. Ms Cong also raised the issue of Mr Minh’s capacity to look after [X] properly. She said that on a visit to the zoo Mr Minh had put [X] into the llama’s cage, which she did not feel was safe. She also reported that [X] has complained about being unable to get sleep at her father’s home because of the television being too loud. In addition, Ms Cong said that on a recent visit to Mr Minh’s home with her sister, who was visiting from Taiwan, she noticed that Mr Minh had used candles in [X]’s room in lieu of a broken light and that the fire risk associated with this worries her.
“14. Ms Cong re‑partnered in December 2007. Her partner was Mr Minh’s flatmate for a time, and this is how she and he met.
Mr K appears to have become a father figure to [X]. According to Ms Cong, [X] refers to him as Daddy [first name omitted].”
The mother also conceded that despite her raising her fears during the consultation, Ms M had still recommended that [X] spend overnight time with the father.
The mother also conceded that she had visited the father’s accommodation and that the father proposed that [X] sleep in his bedroom and that he would sleep in the lounge room on those occasions that she stayed overnight.
The mother also conceded that the father’s immediate past flatmate was female and moreover, that, as indicated in the family report, one of the father’s previous flatmates is now the mother’s partner.
Discussion
The mother was candid in her responses before the Court. She freely admitted each and every one of the contraventions complained of and that [X] has not spent any overnight time with the father since the orders were made. She does, however, seek to be excused on the basis of the issues she has raised. Clearly, the burden of proof is upon her shoulders given her admissions. Each of the mother’s excuses will be dealt with below.
The suitability of the father’s accommodation
The evidence does not support the mother’s excuse that the father’s accommodation is unsuitable. The father was clear in his evidence that the flat has two bedrooms and that [X] would sleep in his room when she visited and he would sleep in the lounge room on those occasions. The father also stated that the bedroom had an internal lock. The mother did not dispute this.
The mother’s concern about his flatmates, past and present
This excuse seems to suggest that the father has made poor choices in his selection of flatmates. Given that the mother is now partnered to one of the father’s former flatmates, this excuse seems to defy logic.
The father’s past and present mental illness
Again, this excuse fails the evidentiary test given that the mother raised no new evidence in respect of this and in respect of the evidence that was formally considered by Ms M in the family report. Ms M was certainly satisfied that overnight time should not only occur, but should increase over time.
The mother’s solicitor had ‘told her to sign the parenting orders’
The Court finds this excuse by the mother, that she only signed the parenting orders because her solicitor told her to do so, to be implausible and simply convenient.
The apprehended violence order
Lastly, with respect to the ADVO, of which the mother has now provided the Court a copy, it continues to 23 October 2010. It states that:
“1(a). The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected persons [both herself and [X]] with whom the protected person has a domestic relationship.
“1(b). The defendant must not engage in other contact that intimidates the protected persons, or a person with whom the protected persons have a domestic relationship.
“1(c). The defendant must not stalk the protected person or a person with whom the protected person has a domestic relationship.”
Additional orders in the ADVO state:
“6. The defendant must not approach, contact or telephone the protected persons by any means whatsoever, except through the defendant’s legal representative or as authorised by a parenting order under the Family Law Act, unless the parenting order has been varied, suspended or discharged under section 68R of the Family Law Act.”
…
“11. The defendant must not destroy or deliberately damage or interfere with the property of the protected person.
“12. That the Court extends the operation of these orders to included the following person with whom the protected person has a domestic relationship, namely the child.”
Now, what is clear from the ADVO is that it has not affected the parenting orders in any way and, on the evidence presented, there has been no suspension, variation, or discharge of those orders.
Decision
Overall, the Court is satisfied on the balance of probabilities:
·firstly, that the mother has contravened the parenting orders on numerous occasions, including 16 and 17 December 2009, 3 and 4 January 2010, 16 and 17 January 2010, and 3 and 4 March 2010; and
·secondly, that there is not a reasonable explanation or excuse provided by the mother for the contraventions.
Indeed, the Court finds that the contraventions were inexcusable.
Penalty
As to whether the contravention is more serious or less serious and the associated penalty, the Court proposes to hear the submissions from the parties in this respect. The Court has formed the view that, being the first time this matter has been before the Court, the matter will most likely be dealt with under the less serious provisions, that is, Subdivision E of Part VII, Division 13A of the Act.
Having considered the submissions of the parties regarding penalty, the Court is satisfied as to the following:
·firstly, that the mother would benefit from attending a post-separation parenting course pursuant to the Act. The mother will obtain a recommendation from either Relationships Australia or Unifam within the next 21 days for an appropriate post-separation parenting course and once that course is nominated, will forthwith enrol in, and otherwise complete, that program at her expense. There will be a notation in today’s Orders that the program should include a component of ensuring compliance with Court Orders
The mother will also be required to provide notice to the father, through his solicitors, of the course recommended and confirmation of her enrolment in and completion of that course. The Court has some concerns about the submissions made by the mother today that lead the Court to believe that despite her assurances, further compliance with the Orders will be conditional and not guaranteed. Consequently, the Court will accede to the request of the father to bring the matter back for further consideration and mention and propose doing that at 10:00am on 3 December 2010 (“the mention hearing”).
The purpose of the mention hearing will, of course, include an update as to compliance with the existing Court Orders between today and the mention hearing.
The Court is also satisfied that the orders sought in the contravention application for the mother to pay the father’s costs of these proceedings pursuant to the relevant schedule of the Federal Magistrate’s Court Rules 2001 (“the Rules”) are appropriate.
Compliance with that order will, however, be stayed until the mention hearing. That will enable the mother to file a financial statement with the Court. The mother will be required to file and serve her financial statement not less than seven days prior to the mention hearing. The Court notes that the fact that the father has been represented by his solicitors on a pro bono basis does not relieve the mother of her obligation to pay costs.
That said, the reality is that the father has been assisted on a pro bono basis. In the circumstances, costs will be fixed in accordance with Stage 7 of Schedule 1, Part 1 of the Rules, at a total sum of $2,505.00. That sum is made up as follows:
·the lump sum component: $745.00;
·the daily hearing fee, on two occasions, allowing a half day on each occasion at $880.00 each day
equalling a total of $2,505.00.
As to the “time lost order”, the Court agrees that such an order is appropriate and in [X]’s best interests, however the Court also accepts the mother’s argument that it needs to be implemented gradually.
Having considered this, the Court proposes that the father’s time be increased from the first week of school term in 2011 until the end of school term in 2011 during the school term periods. In other words, paragraphs 5-11 of the parenting orders will be amended as from the first week of school term 2011 as follows:
“During school terms:
a) From 6:00pm on the first Wednesday of each school term and each alternate Wednesday until the commencement of school on the following Monday PROVIDED THAT such time will cease at 9:00am on Mother’s Day.”
No other changes to the existing parenting orders will be made except for the additional time that will occur during school term periods in 2011. If at the mention hearing the Court is satisfied that there has been no compliance or no substantial compliance with the parenting orders a good behaviour bond may be imposed.
There will be orders of the Court to reflect this decision and the right to settle the reasons for this decision is reserved.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 14 January 2011
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