Morse & Duarte
[2021] FedCFamC1F 273
•25 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Morse & Duarte [2021] FedCFamC1F 273
File number(s): SYC 737 of 2014 Judgment of: JARRETT J Date of judgment: 25 November 2021 Catchwords: FAMILY LAW – CHILDREN – Contravention – Where the mother brings a contravention application regarding parenting orders – Where there are orders requiring the father to consider increasing the time the children spend with the mother, conditional on, inter alia, his satisfaction of her compliance with the remainder of the orders – Where the mother complains that he has not so considered – Where the mother has not complied with orders to spend supervised time with the children – Where there is therefore no evidence from which the father could be satisfied of her compliance – Where the father has no prima facie case to meet and the application is dismissed. Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 25 November 2021 Place: Brisbane The Applicant Litigant in person The Respondent Litigant in person ORDERS
SYC 737 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DUARTE AND: MR MORSE
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
25 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application for contravention filed by the applicant on 17 September 2021 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Morse & Duarte is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This is an application for contravention of certain parenting orders that were made by Le Poer Trench J on 1 December, 2017 by the mother of three children. The orders deal with both parenting and property issues but the application for contravention before me only deals with one of the parenting orders. It is said that that particular order, order number 11, has been contravened by the respondent father on four separate occasions.
It is necessary to understand something of the orders that were made in December, 2017 before proceeding to determine whether there is a prima facie case for the respondent to answer on the application for contravention. The orders – the parenting orders, at least – deal with the children of these parties, H, J and K.
By the orders, the father has sole parental responsibility for them. There is an obligation cast on him whenever he makes a decision which changes some aspect of the children’s long-term arrangements to notify the mother of that decision. By reason of the orders, he is able to seek the mother’s input in writing in relation to any arrangement or aspect of the children’s lives.
Paragraph 5 of the orders provides that the mother is restrained from bringing the children into contact with Mr Tolman at any time, or under any circumstance, other than that which might be specifically permitted by the father in writing from time to time. That is an important order, in the context of the present argument. I will come back to it.
Order 6 is a restraint upon the mother from doing certain things. So too, is order 7. Order 8 provides for the children to spend time with their mother. The time under order 8 between the children and their mother is to be supervised. The sub-parts of order 8 of the order make provision for how that is to occur and how it might from time to time be arranged between the parties. Subparagraph (e) of order 8 applies if the mother seeks the father’s approval for a particular person or persons to supervise the children’s time with her and in the event that the father accepts that proposal, then before the first occasion upon which the time is spent, the proposed supervisor must sign an acknowledgment which acknowledges certain things, but in particular, that there is to be no contact between the children and Mr Tolman, including contact by telephone or any electronic means: see order 8(e)(i).
Order 9 of the orders provides that the father may in writing provided to the mother at any time suspend the requirement for supervision of the mother’s time with the children for occasions or an occasion, if he considers it appropriate to do so. Order 10 provides that the father may in writing to the mother increase the amount of time, the frequency, or vary the site at which the children are to spend time with the mother. And order 11, which is central to this contravention application, provides this. I will read it into the record in full:
In the event that the mother no longer resides with [Mr Tolman] and the father is satisfied there will be no contact by the children with [Mr Tolman], and where the father is satisfied the mother is otherwise compliant with the court orders, then the father is to consider extending the time the children spend with the mother to overnight time in her home. If he offers to the mother a change of the time the children spend with her to include overnight time, and the mother accepts unequivocally in writing the conditions upon which such offer is made, then such time is to continue until the father gives notice in writing that it is to cease.
The balance of the orders are unremarkable and do not warrant any further consideration in this application.
In support of her case, the mother relies on an affidavit she filed on 17 September, 2021 in which she sets out the facts upon which her contraventions are based. In essence, she says that she has had contact with the parties’ child, J, who she says has indicated a desire to spend some time with her. And so, in furtherance of that she has pursued the father to ask him for that time to commence. That is a paraphrase, but that is the essence of it and she says that there have been four occasions when she has either asked the father for that or the occasion for him to consider it happening has arisen.
Her case is that on each occasion the father has not considered that which he is obliged to consider, namely J spending overnight time or extending the time that he spends with his mother, and that the father’s failure to consider those things is a contravention of order 11.
I think the mother’s submission is right; that the father misapprehends the contravention application, because his submissions to me were focused upon him not allowing J to spend time with his mother. That is not what she is complaining about. She is complaining about what she infers is, or what she has the impression is, a failure by him to consider an extension of the relevant time.
The real issue that needs to be determined before there can be a finding of a prima facie case of contravention is the nature of the obligation on the father under order 11 and whether the obligation cast upon the father for its exercise has arisen. The mother’s case is that in order 11, the word “consider” requires the father to give proper consideration to extending the time. She says that the facts show that he has not done that because his responses to her have been immediate and he could not possibly have given a proper and mature consideration of whether the time between she and J should be extended. Her case must be necessarily, I think, one of inference and she says the inference is easily drawn.
She also says that to the extent that the father argues that she has not complied with the orders, and I will turn to that issue shortly, then the father is mistaken because whilst order 8 provides for supervised time, the “policy” as she described it, of order 8 was to protect the children, or prevent the children from having contact with Mr Tolman, and given that he now works in North America, or did at the relevant times, there is no need for that policy to be carried forward. And so, the time between she and J, at least, is able to be extended, as it were.
There is one uncontroversial fact that is important, and that is that these children – and J in particular – have spent no time with their mother since November, 2015. That is despite the orders made by Le Poer Trench J in December, 2017. The mother told me in submissions that she told Le Poer Trench J that there were no circumstances under which she would have supervised time at a contact centre with her children and so it seems that the time that is provided for in the orders has never started. That is unfortunate for these children.
So to order 11. Order 11 requires three things to occur before the obligation to give consideration to extending the time the children spend with the mother to overnight time in her home arises. The first is that the mother no longer resides with Mr Tolman. I accept, for the purposes of this application, that she no longer resides with Mr Tolman, and that Mr Morse has known that for some time. The second is that the father is satisfied that there will be no contact by the children with Mr Tolman. There is no evidence of his satisfaction about that. The mother would say, presumably, that it should be inferred from the fact that Mr Tolman is apparently in North America, but that does not discount electronic communications. But that is a minor point.
The third requirement, the one upon which Mr Morse is fastened in his submissions, is that the father be satisfied that the mother is otherwise compliant with the court orders. His argument is that because she has not complied with order 8, there is no basis upon which he could be satisfied that she has complied with the court orders and therefore the obligation to consider the matters provided in order 11 has not arisen. So is that argument correct?
The orders – the parenting orders to which I have already referred – cast an obligation upon the mother in order 5 – that is the restraint from bringing the children into contact with Mr Tolman. Order 6 casts an obligation on her – that is a restraint against her approaching various places. Order 7 is a restraint upon her as well. There is nothing in the evidence to suggest that she has not complied with any of those parts of the order.
The next order, number 8, imposes an obligation on the mother. The obligation is to have supervised time with the children. The order is not optional. There is a thought in the community – and one sees it from time to time in this place – that orders that provide for children to spend time with the parent with whom they do not ordinarily live, is somehow optional – that is, it can be taken up by the parent at that parent’s option. But that is not so, as the text of this order show:
The mother is to have supervised time with the children as set out.
The mother has not had that supervised time. The father’s argument is entirely and utterly correct. The occasion for the exercise of the obligation in order 11 to consider the course of action set out in that order has not arisen because the mother is non-compliant with the orders. On that basis, there is no prima facie case for the father to meet, and the application for contravention is dismissed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 9 December 2021
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