Mitty & Mitty
[2012] FamCA 329
•3 May 2012
FAMILY COURT OF AUSTRALIA
| MITTY & MITTY | [2012] FamCA 329 |
| FAMILY LAW - ORDERS - Contravention - where there is a positive obligation on the mother to comply with parenting orders - where the mother, by way of reasonable excuse for failing to deliver one of the children to spend time with the father, gave evidence that the 6 year old child did not want to see the father - where this was insufficient to constitute a reasonable excuse - found that the mother contravened court orders by failing to facilitate telephone and skype communication between the father and the children, failing to deliver one of the children to spend time with the father, and failing to inform the father of a medical condition of one of the children FAMILY LAW - COSTS - Between parties - where the mother seeks orders that the father pay her costs thrown away by virtue of the father not being ready to proceed when the matter first came before the court - where the subject of proceedings was the mother’s failure to comply with orders of the court - mother’s application dismissed |
| Family Law Act 1975 (Cth) s 70NEB |
| Simpson & McDaniels [2011] FamCA 1041 Stevenson & Hughes (1993) FLC 92-363 |
| APPLICANT: | Mr Mitty |
| RESPONDENT: | Ms Mitty |
| FILE NUMBER: | SYC | 8326 | of | 2007 |
| DATE DELIVERED: | 3 May 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 22 March 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Batey |
| SOLICITOR FOR THE RESPONDENT: | Pearson Family Lawyers |
Orders
IT IS ORDERED
That the respondent must within 14 days contact the program provider, AB Parenting Orders Program (“the provider”) at …, Queensland, and arrange an appointment on or before 14 June 2012 for an initial assessment as to suitability for the post separation parenting program called “…– Parenting Orders Program” or such other program as may be recommended by the provider.
That the respondent must attend the appointment for the initial assessment at any reasonable time and place nominated by the provider.
That if assessed as suitable for the program or part of a program, and the program provider nominates a particular program for the respondent to attend, she must attend that program or part of the program (as the case may be) as soon as practicable.
That the respondent notify the applicant in writing and provide documentary confirmation from the program provider of the dates upon which she complies with Orders 1 and 2.
That the respondent notify the applicant forthwith and provide documentary confirmation from the program provider of the result of the assessment referred to in Order 3.
That the respondent notify the applicant forthwith and provide documentary confirmation from the service provider upon the completion of the program referred to in Order 3.
That the application by the respondent that the applicant pay her costs of 21 December 2011 be dismissed.
IT IS DIRECTED
That the principal executive officer of the Family Court ensure that notice of the making of these orders is given to the proper officer of the AB Parenting Orders Program, together with a copy of these orders and the judgement, and request that the proper officer inform the court in writing as soon as possible if:
(a) A party to this order has failed to attend for assessment.
(b) A party to this order has failed to attend the program.
(c) The program provider considers a party a subject to this order is unsuitable to take any further part in the program or part of the program.
That upon receipt of such notification the matter be re-listed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mitty & Mitty has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 8326 of 2007
| Mr Mitty |
Applicant
And
| Ms Mitty |
Respondent
REASONS FOR JUDGMENT
BACKGROUND
The proceedings before the court relate to an application filed by the father, Mr Mitty, asserting that the mother, Ms Mitty had contravened orders in relation to their children, namely H, born in March 2003, L born in June 2005 and S born in December 2006.
The allegations arise out of orders made by Le Poer Trench J on 26 July 2010 following a defended hearing.
The matter came before me on 21 December 2011, at which time the counsel for the mother indicated that the mother was ready to proceed, but the father sought an adjournment. The application for the adjournment is the subject of an application by the mother for costs and will be dealt with later in these reasons. Relevantly, however, on that day, the charge was formulated and a copy of the charge given to the legal representatives of the mother and to the father.
When the matter came before me on 22 March 2012 the father sought to add additional charges. I did not allow that application, because the mother’s affidavits had only responded to each of the charges which were proposed on the last occasion. In summary, the mother in her affidavit denied each and every allegation of contravention.
The law applicable to this application was summarised by Ryan J in Simpson and McDaniels [2011] FamCA 1041. I set out in full Her Honour’s summary and adopt it as a correct statement of the law:
The applicable law – Contravention Applications
6.The consequences of a failure to comply with orders that affect children are set out in Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
7.For contravention applications, the Court may find that a contravention is alleged to have occurred but is not established (Subdivision C); or that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).
8.The meaning of “contravened an order” is found in s 70NAC of the Act which is set out below:
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 who is bound by it.
It is subparagraph (a) with which we are concerned in this case.
9.The onus of proof rests on the applicant to prove that the respondent contravened an order affecting children. The standard of proof is on the balance of probabilities (other than when the Court is considering sanctions for serious contraventions) having regard to the gravity of the allegation. The contravention must be shown to be intentional though not requiring proof of contumacious behaviour. See s 70NAF of the Act and also Jets & Maker [2010] FamCAFC 55 per O’Ryan J at par 83.
10.If the contravention is proved, the onus shifts to the respondent to establish on the balance of probabilities a reasonable excuse for non compliance.
11.The meaning of “reasonable excuse” is found in s 70NAE of the Act which is set out below:
(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this 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 order 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.
(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4) 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).
(5) 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 spend time with in a way that resulted in a person and a 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 was necessary to protect the health or safety of the person referred to in paragraph (a).
(6) 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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate 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 communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
…
12.Section 70NAE was considered by Warnick J in Childers & Leslie (2008) FLC 93-356. At par 22, Warnick J said:
As earlier seen, s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found. While it is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse, a much more difficult question is whether, if the circumstances seem to fit within the character of those set out in a subsection, that subsection describes the limits within which reasonable excuse may be found...
13.With these remarks, I agree. They are a statement of the law which applies in this case.
14.Warnick J in Childers & Leslie went on to explain that the test of reasonableness is not simply whether viewed from some ill-defined concept of fairness or reasonableness, a person’s actions can be excused. The position, as his Honour explained, with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is similar to that of terms of like generality, for example “any just cause” used elsewhere in the Act. See for example in The Marriage of Lutzke (1979) Fam LR 553.
15.In Taikato v R (1996) 186 CLR 454, the High Court (per Brennan CJ, Toohey, McHugh and Gummow JJ), in a different context, considered the meaning of reasonable excuse in relation to which their Honours said:
The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception… (page 464, footnotes omitted)
…
However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so, the courts must give effect to the will of parliament and give effect to their own ideas of what is a “reasonable excuse”… (p 466)”
There were 12 allegations of contravention against the mother. Some must be dealt with separately.
The first alleged contravention is that on 31 August 2010 the mother failed to make the children available to communicate with the father by telephone.
Order 7(a) provided:
That the father shall communicate and spend time with the children as follows:
(a) via telephone each Tuesday at 6 p.m. with the father to call a telephone number nominated by the mother
The father's evidence was that he telephoned the children three times on the evening of 31 August 2010 and on each occasion the call went to voice mail, and he left a message. He says that at approximately 9.13 pm that evening he received a text message from the mother saying words to the effect of, “No kids want to talk.”
The mother's evidence is that the father and the mother had a telephone conversation at about 11.00 am on the morning of 31 August. The father agrees. She gave evidence of a second telephone call at about 3:30 pm on that day when the mother and the children were in her car coming home from school. She says that the father spoke to the children and he indicated that he would not be telephoning later, as he had already spoken to them.
The father denies that there was a conversation with the children in the car. There is no evidence in the form of records of telephone calls that any call was made from one of the numbers which is used by the father, and there is no evidence of the receipt of any telephone call on the mother's mobile phone at 3.30 pm. I cannot make a finding as to whether there was a call at 3.30 pm. In any event, nothing turns upon that finding.
It was asserted by counsel for the mother that the application was defective in that the orders require the mother to nominate a phone number on which the father could make calls, but the father referred me to a letter from the mother's solicitor, nominating the number which he called.
There is no explanation from the mother for her not answering the three calls which were made by the father on the evening of 31 August 2010. Even if it were the case that the father had already spoken to the children that afternoon, that is not a reasonable excuse for refusing to allow him to communicate with them at 6.00 pm on 31 August 2010 in accordance with the orders, and I find that the mother contravened the order.
The second alleged contravention is that on 14 December 2010, the mother failed to make the children available to communicate with the father by telephone.
The father's evidence is that on Tuesday the 14th of December 2010 he telephoned the children on the wife's mobile number at 6.00 pm, at 6.05 pm and at 6.30 pm and on each occasion the call went to voice mail.
The Mother's evidence is that on 14 December 2010 she attended a Christmas function and was not at home. The children were in the care of the mother’s au pair, Ms Z. The mother's evidence is that she asked Ms Z to ensure that the children spoke to their father. I infer from the mother's evidence that the mother took her mobile phone with her.
An affidavit by Ms Z was sworn and provided to the father by the solicitors to the mother under cover of an e-mail on 15 March 2012. That e-mail also forwarded the mother’s affidavit to the father. The father admits receiving the mother's affidavit but does not recall receiving the affidavit of Ms Z. I find that the father received both affidavits. It was only on the morning of the hearing before me that the father indicated to the solicitors for the mother that he wished to cross-examine Ms Z. Unfortunately, it was not possible to contact Ms Z, who is living in Germany, in time to make her available for cross-examination by telephone, but I nevertheless received into evidence her affidavit. Ms Z's evidence is that on 14 December 2010 when the mother attended a Christmas party, the mother instructed Ms Z to call the children's father, and to encourage the children to speak to him. Ms Z says that she telephoned the father from her mobile between 6.00 pm and 7.00 pm on the 14th of December 2010, but there was no answer.
The mother made appropriate arrangements for the children to communicate with the father on 14 December 2010 in circumstances where she was not in the home and I do not find this allegation proved.
The third, fourth, fifth and sixth alleged contraventions are that on 19 November 2010, 3 December 2010, 4 February 2011, and 4 March 2011, the mother failed to make the child L available to spend time with the father.
Order 7(c) of the orders made on 30 July 2010 provided for the father to have time with the children under supervision at the P Contact Centre.
The father’s evidence is that on 19 November 2010 he attended at the Contact Centre at 1.00 pm and L was not present. He spent time on that occasion with H and S.
The mother denies that she contravened the orders and gives evidence that she brought L to the contact centre on that date. However, the mother's evidence needs to be examined in the light of her actions and her oral evidence and this aspect is set out more fully later in these reasons.
Similarly, on 3 December 2010, the mother says she brought L to the Contact Centre.
On 4 February 2011 the mother says she brought L to the Contact Centre.
On 4 March 2011 the mother says she brought L to the Contact Centre.
The mother in her affidavit deposed that on each of the occasions referred to in the third, fourth, fifth, and sixth alleged contraventions, she brought L to the contact centre. The father gave evidence that he had not, on any of those occasions, seen either the mother or L, and that he had not even seen the mother's motor vehicle.
The mother in her oral evidence was unclear about whether L had been taken into the Contact Centre on any specific occasion. She was able to recall that on one occasion L was left in the car outside the Contact Centre and was not taken into the Centre. She was able to recall that on one occasion L went into the Contact Centre with her but she did not suggest that L was handed over to Contact Centre staff so that they could facilitate the time with the father. In relation to the other occasions, she was unable to remember whether L was taken into the Contact Centre or whether she was left in the car.
On no occasion did the mother, according to her evidence, leave L with the staff or ask that the staff facilitate the handover. On no occasion does she give evidence of any attempt to encourage or persuade L to spend time with the father.
The mother’s obligation, in compliance with the orders, was to deliver L to the Contact Centre and hand her into the care of the Contact Supervisor and then leave. She did not do so.
There is a positive obligation on the mother to comply with orders in relation to parenting of children. The Full Court in Stevenson and Hughes (1993) FLC 92-363 stated the principle:
This is what I might call the classical case which the Full Court dealt with in Stavros and Stavros (1984) FLC ¶91-562; 9 Fam LR 1025, namely, that there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it. It is quite clear that such an approach is wrong and that the wife in this circumstance, clearly, was in breach of her obligations under the order.
The weekend of 4 February 2011 was the first weekend that the father was to spend unsupervised time with the children pursuant to order 8 of the orders of Le Poer Trench J made on 30 July 2010. The agreement between the mother and the father was that the children would be collected from the P Contact Centre at 12 noon. The father collected S and H, but L was not made available.
The mother in her evidence said that she brought L to the Contact Centre on 4 February 2011. She did not give any evidence that she presented L to the Contact Supervisors or that she made any attempt to persuade L to go with her father and brothers. The mother’s obligation was to deliver L to the Contact Centre and into the care of the Contact Supervisor. She did not do so.
By way of explanation, the mother was only able to say that L did not wish to go with her father. By way of reasonable excuse she gave evidence that L did not want to go. L was 5 years old. The mother gave no evidence of any attempt on her part to coax or persuade L to participate in the visit and neither did she give evidence that she had instructed L to go.
The father tendered from the documents produced by the Contact Centre the records of his time with the children on 22 October 2010. The records indicate that the mother, when she brought the children to the Centre, claimed that the children did not want to spend time with the father.
The notes record that prior to the father's arrival, the children were playing on the swing set and L, smiling, stated: “I don't want to see him, (meaning the father)” but could not give a reason.
When the father arrived the notes record that H and L ran to greet him happily and gave him a hug. However, since the notes also record that L remained on the swing set and smiled, it may be that it was H and S who ran to greet the father.
It is recorded that there was affectionate interaction between the father and the children and that the children were cuddled and kissed and hugged. The notes record that the father was child focused and that he was attentive and engaged in activities with the children. The supervisor further noted that the father noticed and acknowledged desirable or appropriate behaviour, used distraction to remove the children from undesirable or unsafe activity, and encouraged the children to tidy away the toys after activities. It is noted that the father engaged with the children for most of the visit; that he pushed them on the swing set and played ball games, sandpit games and toy cars. He allowed the children to decide what activities they would do and smiled and laughed while engaging them in play. The notes record that the father divided his attention equally between the children.
The notes record that all of the children appeared to interact comfortably with the father. Although L initially did not want to engage in activities with him, as the visit progressed she would allow him to play with her, pushing her on the swings and tickling her. When the father left the session, H and S hugged him and L gave him a “hi five”. The supervisor observes that despite L stating during orientation that she did not want to see her father, she still engaged in play with him, wanting him to tickle her in a playful manner and push her on the swings.
The next record, to which my attention was drawn was a record of a conversation between the mother and the Contact Centre on 5 November 2010. The mother telephoned the Centre to advise that L was unwell and would not be attending with S and H on that day. The mother went on to say that L had stated that she did not want to go on with contact any more after the last contact. The mother stated that although L may have appeared as if she was okay with the contact she (L) expressed this after the contact. The mother asked if the Centre could have a talk with L to find out why she does not want to attend contact as she will not talk to the mother about this. The mother went on to say that it may be that L has been sexually abused by the father. However, she said there was no reason or evidence to indicate this concern. The staff member informed the mother that the facilitator and the Centre would be mindful of these concerns when L next attended.
L did not attend the Centre again.
The second occasion that the father was to spend unsupervised time with children was on 4 March 2011. The parties had agreed that the children would be collected from the Contact Centre. On that occasion, the father's evidence is that he collected H and S for the weekend, but that L was not made available to him. The mother's evidence is that she brought L on that occasion to the Contact Centre. Again, it is not clear to me whether or not L was taken inside the Contact Centre, or whether she remained in the car. It is not suggested by the mother that she handed L over to the Contact Supervisors so that L would be handed over to the father by the Supervisors. Again there is no evidence from the mother of any attempt which she made to comply with the orders, and her reason for not complying is that L did not want to go.
L was born in June 2005. At the relevant times, she was less than six years old. I do not accept that L’s telling the mother that she did not want to go with the father was a reasonable excuse for the mother to withhold L from the Contact Centre supervisor.
I find the contraventions on 19 November 2010, 3 December 2010, 4 February 2011, and 4 March 2011 proved.
The seventh alleged contravention is that on 1 April 2011 the mother failed to make the child L available to spend time with the father.
On 1 April 2011, the father was to collect the children from the Contact Centre. In the course of his journey to the Contact Centre, he received an e-mailed letter from the solicitors for the wife sent on 31 March 2011. The letter said:
We are instructed by our client to commence proceedings through variation of the parenting orders made by his honour Justice Le Poer Trench on 30 July 2010.
It is our client's contention that [H] is suffering emotional and possibly psychological difficulties as a consequence of your conduct during the period that he spends time with you.
In the circumstances, our client will not be bringing the children to the contact Centre on Friday 1 April 2011. Our client regrets that you have been unwilling to discuss these issues at mediation. Our client repeats her invitation for you to participate in mediation and/or counselling in an attempt to resolve the issues.
No mention is made in that letter of any difficulties asserted to be suffered by S or by L.
The mother, in asserting a reasonable excuse for not complying with the orders, relies upon the fact that on 4 March 2011 she caused a letter to be forwarded to the father by her solicitors inviting the father to attend mediation.
In the letter, the mother’s solicitors set out the mother's version of behaviour by H between 8 February 2011 and 27 February 2011. It is not asserted in that letter by the mother that there have been any difficult behaviours observed of either L or S.
In the letter the father was invited to attend mediation with either a named solicitor or a named social worker. The father responded to the letter on 8 March 2011, pointing out positive interactions with L and asking that the mother encourage the children to facilitate the existing orders.
A further letter was written to the father by the mother’s solicitors on 11 March 2011 raising concerns about H's behaviour in that letter. No concerns are raised in relation to S, and the solicitors state, “we have previously addressed your concerns in relation to [L]”.
The father responded to that letter on 16 March 2011 again seeking compliance with the orders. On 18 March 2011 a further letter was written by the mother’s solicitors to the father again dealing only with difficulties being experienced by H.
The correspondence ended with the letter of 31 March 2011 from the mother’s solicitors to the father indicating that she would not bring the children to the Contact Centre on 1 April 2011.
The mother relies upon that correspondence to establish reasonable excuse for her non-compliance with the orders. There is nothing in the correspondence which indicates that there was any reason S or L should not spend time with the father. Neither is there any indication in the wife's evidence or in the correspondence from her solicitors that she was making any attempt to encourage the relationship between the children and their father. In so far as it may be asserted on behalf of the wife that she had a reasonable excuse in relation to H, it could not be asserted that any such excuse existed in relation to L or S and I find the mother contravened the order in relation to L, as alleged.
The mother relied upon notes produced by X Counsellors relating to attendance of the mother and the children upon a counsellor, Ms RR. The records relate to attendances between 21 April 2011 and 24 November 2011. The attendances upon the counsellor took place after the contraventions and I do not accept that anything that passed in the sessions with the counsellor can be relied upon by the mother as evidence of reasonable excuse for past non-compliance with orders.
The eighth allegation is that in September 2010 the mother failed to advise the father that the child S had scarlet fever.
The father says that in the course of a telephone conversation with the children in about September 2010 he was told by H that S had scarlet fever. On 10 September 2010 he forwarded an e-mail to the mother, saying, amongst other things: “Can you please inform me as to the health of all three children, and in particular, who [S's] doctor is in relation to the scarlet fever which he has recently had”.
On 22 September 2010 the father sent an e-mail to the mother again asking for information in relation to S and scarlet fever. The mother responded with an e-mail later that day, saying: “[S] is okay. He just has a cough details of the doctor have been forwarded to you.”
Annexed to the father’s affidavit are medical records produced by the clinic treating all three children. Progress notes for S make no mention of a diagnosis of scarlet fever. However, progress notes for H, on 23 September 2010, state “brother has had scarlet fever in last two weeks”.
The mother was cross-examined about S's scarlet fever. She conceded that S had scarlet fever around September 2010. She said that S had been taken to the doctor as soon as she saw a rash and that when she sent the e-mail to the father on 22 September 2010 she was not aware that S was suffering from scarlet fever. I note that the mother did not advise the father that S had a rash, but rather that he had a cough.
Clearly, at some stage, the mother became aware that S had scarlet fever. She conceded that when she became aware that S was suffering from scarlet fever, she did not inform the father.
Order 12 made on 30 July 2010 requires the mother to advise the father as soon as practicable of any medical treatment affecting the children. I am satisfied that a diagnosis of scarlet fever is a matter that should have been communicated to the father. I do not accept the assertion on behalf of the mother that having informed the father that S had a cough was sufficient to discharge her obligations pursuant to the order. I find the contravention proved. The mother advanced no evidence of any excuse in relation to her failure to inform the husband.
The ninth, tenth, and eleventh allegations of contravention are that in August 2010 the mother failed to provide for the benefit of the father an authority to School 1 in respect of H, an authority to School 2 in respect of L and an authority to School 3 pre-school in respect of S.
I propose to deal with these allegations together. The orders which were made require the mother to provide an authority to the children's school or preschool authorising the provision of information to the father. The father complains that he was unable to get information from the children's schools despite numerous attempts.
The mother gave evidence that on each occasion when the children were enrolled at school, in her first interview with the headmaster or headmistress of the school, she verbally gave the authority for information to be conveyed with the father and provided the school on each occasion with a copy of the Family Court orders.
At some later time at the request of the school and of the father she provided written authorities. Those written authorities are undated, but it was conceded by the mother that they were provided perhaps a few months after the children had been enrolled.
It may be the case that the school did not regard her verbal authority as being sufficient, but in my view that does not establish that she did not comply with the orders and I do not find the ninth, tenth and eleventh charges to be proved.
The last allegation of contravention is that on 5 November 2010 the mother failed to use her best endeavours to facilitate video conferencing communication with all of the children.
Order 19 of the orders made on 30 July 2010 states that:
Should the father either currently have a computer with the capacity to run video conferencing sometimes referred to as Skype or in the future acquire such a computer and should he notify the mother by e-mail of his desire to have his weekly telephone call with the children occur by medium of videoconferencing then the mother is to use their best endeavours to facilitate such communication for each of the children.
On the 11 August 2010 the father sent an e-mail to the mother saying:
Can you let me know the Skpe number so as to allow contact with the children [H], [L] and [S].
On 22 August 2010 the father sent an e-mail to the mother saying:
I was wondering if you would allow [H] to e-mail me? Also, I was wondering if I may be able to skype the children in line with the orders of the judge? Can you supply the skype details to allow this to happen? This will benefit the children enormously, being able to see me as we speak.
On 9 September 2010 the mother sent an e-mail to the father saying:
The court orders have made it very clear as to the level of communication and contact that you have with the children and I can assure you that I shall be abiding with those court orders. You may send the camera for skype purposes to [the mother’s solicitor] and I should use my best endeavours on Tuesday evenings at 6.00 p.m. to facilitate such communication.
On 5 November 2010 when the father saw H and S at the contact Centre, he gave them the Skype camera.
On 14 November 2010, the father sent an e-mail to the mother informing her that when he saw H and S at the Contact Centre on the previous Friday he had given H a Skype camera. The father requested that the children be allowed to Skype on the following Tuesday night.
The mother gave evidence that she attempted to connect the Skype camera, but was unsuccessful, and that on 19 November 2011, her friend was able to set up the Skype camera. However, she said the children did not wish to use the Skype camera and in fact have never communicated with their father using Skype. Again the mother gave no evidence of any attempt by her to coax or persuade the children to use Skype to communicate with the father.
The mother offers by way of reasonable excuse, the fact that the father did not give her the Skype camera until 5 November 2010 and that she was then unable to set the camera up in order for the children to have Skype communication with the father.
The mother was aware that the father wished to communicate with the children using Skype at least from 11 August 2010, and certainly from 22 August 2010. She had a positive obligation, pursuant to the orders, to use her best endeavours to facilitate that communication and it was not open to her simply to rely upon the fact that the father had not provided to her a Skype camera. The mother's obligation was to use her best endeavours to facilitate communication by Skype when it was required of her by the father. It was her obligation, when she was advised that the father wanted to Skype, to put in place the technology which was required.
By way of reasonable excuse, the mother relies upon the fact that the father did not provide the camera until 5 November 2010. I do not accept that to be a reasonable excuse, and I find the contravention proved.
I am satisfied that the mother has contravened the orders made on 26 July 2010 as set out earlier in these reasons, and that she has not established a reasonable excuse for doing so. No court has previously imposed a sanction on the mother for contravention or adjourned proceedings to allow a party to vary the primary orders.
However, the circumstances here are complicated by the fact that, included in the orders of 26 July 2010, was an order restraining either party from instituting further parenting proceedings without leave. The mother filed an application seeking such leave on 6 April 2011 but the application has not been dealt with because the father’s contravention application needed to be heard. It was for that reason that I did not allow the father to rely, in these proceedings, on any contravention alleged after 6 April 2011.
Counsel for the mother submitted that the contravention, if established, should be dealt with as a “less serious” contravention. The father did not make any submission to the contrary and I propose to deal with the matter on that basis.
The powers of the court in these circumstances are set out in section 70NEB:
FAMILY LAW ACT 1975 - SECT 70NEB
Powers of court
(1) If this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
(b) if the current contravention is a contravention of a parenting order in relation to a child--make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c) adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d) make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)--impose a fine not exceeding 10 penalty units on the person;
(e) if:
(i) the current contravention is a contravention of a parenting order in relation to a child; and
(ii) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii) the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f) make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g) if the court makes no other orders in relation to the current contravention--order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
Note 1: The court may also vary the primary order under Subdivision B.
Note 2: Paragraph (1)(a)--before making an order under this paragraph, the court must consider seeking the advice of a family consultant about the services appropriate to the person's needs (see section 11E).
(2) The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:
(a) the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and
(b) the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.
(3) If the court makes an order under paragraph (1)(a), the principal executive officer of the court must ensure that the provider of the program concerned is notified of the making of the order.
(4) If:
(a) the current contravention is a contravention of a parenting order in relation to a child; and
(b) the contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);
the court must consider making an order under paragraph (1)(b) to compensate the person for the time the person did not spend with the child (or the time the child did not live with the person) as a result of the contravention.
(5) The court must not make an order under paragraph (1)(b) if it would not be in the best interests of the child for the court to do so.
(6) In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the court must have regard to the following:
(a) whether the primary order was made by consent;
(b) whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner;
(c) the length of the period between the making of the primary order and the occurrence of the current contravention;
(d) any other matters that the court thinks relevant.
(7) The court must consider making an order under paragraph (1)(g) if:
(a) the person (the applicant ) who brought the proceedings in relation to the current contravention has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the person (the respondent ) who committed the current contravention committed a contravention of the primary order or that other primary order; and
(b) on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:
(i) was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or
(ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NDB, 70NDC, 70NEB, 70NFB or 70NBA in relation to the contravention.
No application was made to adjourn the proceedings pursuant to the provisions of section 70NEB(1)(c). However, in circumstances where I have found that the mother had no reasonable excuse for her non compliance with existing orders, an adjournment to allow her to vary the orders, without dealing with her non-compliance, would not be appropriate. Compliance with parenting orders is not optional or subject to the whim of the parent.
I will make an order that the mother attend a parenting program which I trust will assist her to understand her obligations to comply with orders of the court.
In circumstances where the mother has an application before the court for leave to file an application to vary the orders, I do not consider it to be appropriate to consider placing her on a bond.
The father has not seen the children or spoken to them since 4 March 2011 and I cannot be satisfied that it is appropriate, or in the best interests of the children, to make an order for the children to spend compensatory time with the father, having regard to the mother’s pending application.
Her financial position, which is detailed later in these reasons, makes a financial penalty inappropriate.
The father was not represented in the proceedings before me and therefore did not incur any legal expenses in prosecuting the application and there is no evidence that he has incurred any expenses as a result of the mother’s contraventions.
Section 70NEB(1)(f) makes provision for an order that the person who committed the contravention to pay some or all of the costs of another party. That provision allows an order for costs to be used as a sanction for contravention and would have been available for consideration if I had come to the view that the mother had the financial capacity to pay.
The mother has sought an order that the father pay her costs thrown away by virtue of his not being ready to proceed when the matter came before me on 21 December 2011. On that day the mother was represented by her solicitor and Counsel and indicated that she was in position to file affidavit material going to her defence if I should find that a prima facie case had been established. The father indicated that his reason for seeking an adjournment was to get legal representation and he was also given leave to file any further material he might seek to rely upon in response to the mother’s affidavit material although he did not seek that leave.
As counsel for the mother pointed out, the father did not file any further material and was not represented at the hearing.
The mother’s application that the father pay a portion of her costs, however, must fall to be determined in accordance with the provisions of section 117(2A) of the Family Law Act 1975 and the matters I must consider are set out below:
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
I directed that each party file, within 14 days, a Financial Statement in accordance with Form 13. The mother filed a Financial Statement sworn on 4 April 2012. Her income is derived from parenting allowance and rental assistance. She does not receive child support from the father. Her parents contribute to her needs. She is bankrupt in respect of debts arising out of the marriage and the bankruptcy will be discharged on 2 December 2012.
The father has not filed a Financial Statement and I have no evidence of his financial position. However the mother’s evidence is that the father has not complied with orders that he pay costs of $1,560 ordered on 11 May 2009 and of $4,000 ordered on 22 December 2010.
Neither party was in receipt of legal aid.
The adjournment on 21 December 2011 was occasioned by the father’s unwillingness to proceed in circumstances where the mother was represented by counsel.
Against that fact, however, is the fact that the proceedings were brought about by the mother’s failure, without reasonable excuse, to comply with orders made by the court for the benefit of the children after a defended hearing.
The father has not been wholly successful in that he did not succeed in relation to four of the twelve counts alleged. The mother has not been wholly unsuccessful in that she succeeded in relation to four counts out of twelve.
If the father had been represented, he would have likely sought an order that the mother pay his costs of the whole, or part, of the proceedings pursuant to section 70NEB(1)(f) or section 117(2A). In circumstances where the subject of the proceedings was the mother’s failure to comply with orders of the court it would be perverse to make an order that the father pay any portion of her costs and I do not propose to do so.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 3 May 2012.
Associate:
Date: 3 May 2012
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