Morwick and Ivanson

[2014] FCCA 1796

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORWICK & IVANSON [2014] FCCA 1796

Catchwords:
FAMILY LAW – Contravention – parenting orders – no appearance by respondent at hearing – undefended hearing – application for compensatory time – nature of compensatory time order.

Legislation: 
Family Law Act 1975, ss.70NAF, 70NEB, 70NFA, 70NFB, 117

Evidence Act 1995 (Cth), s.140
Federal Circuit Court Rules 2001, rr.6.06, 25B.04

Jackson & Fordham (1994) 18 Fam LR 336, (1995) FLC 92-561

Applicant: MR MORWICK

Respondent: MS IVANSON

File Number: PAC 5042 of 2010

Judgment of: Judge Halligan

Hearing date: 23 July 2014

Date of Last Submission: 23 July 2014

Delivered at: Parramatta

Delivered on: 23 July 2014

REPRESENTATION

Counsel for the Applicant: Ms Freidlander

Solicitors for the Applicant: J M Gallett Legal

Solicitors for the Respondent: No Appearance

Solicitors for the Independent Children’s Lawyer: Ms Rowley

ORDERS

1. The court finds that the mother contravened orders made by this court on 22 July 2013, without reasonable excuse, on 15 September 2013,

   
   

   22 September 2013, 6 October 2013 and 1 June 2014.

2. Pursuant to section 70NEB(1)(b) of the Family Law Act 1975, the child, X, born on (omitted) 2008, shall spend time with the father on four consecutive Saturdays, commencing on the fifth Saturday after service on the mother of a sealed copy of these orders, from 9 am to 5 pm, and the provisions at paragraphs 5, 6 and 7 of exhibit A in terms of which orders were made on 22 July 2013 shall also apply to this order.

3. The mother shall pay to the father the sum of $2,685 being the father’s costs of his contravention applications filed 11 October 2013 and

   
   

   13 June 2014, within 30 days after service on her of a sealed copy of these orders.

4. Service of a sealed copy of these orders shall be effected on the mother by service at the mother’s address for service in the pending parenting proceedings.

5. The outstanding parenting proceedings are adjourned for mention before me at 9.30 am on 22 September 2014.

6. The father’s solicitor shall notify the mother’s solicitor and the Independent Children's Lawyer of the adjourned date as soon as possible.

IT IS NOTED that publication of this judgment under the pseudonym Morwick & Ivanson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 5042 of 2010

MR MORWICK

Applicant

And

MS IVANSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings were listed today for the hearing of a contravention application filed on behalf of the father against the mother on

   
   

   11 October 2013.  That application alleged three contraventions of parenting orders, being interim consent parenting orders made in the course of parenting proceedings that are still on foot.  The orders were made on 22 July 2013.

2. On 13 June 2014 a further contravention application, alleging one more contravention, was filed.  The Registry made that application returnable.  I am asked to hear both applications today in the mother’s absence.

3. Bearing in mind these are summary matters, and the court’s practice normally is to attempt to deal with them, if time permits, on the first return date unless to do so would be a denial of procedural fairness, I am prepared to accede to the application that I consider on its merits the later application together with the earlier one.

Undefended hearing

1. The matter is proceeding in the absence of the mother.  I was advised by counsel for the father that her instructing attorney had received an email this morning from the solicitors on the record for the mother in the pending parenting proceedings indicating that whilst they acted for the mother in the parenting proceedings there was no grant of legal aid for them to assist the mother in contravention proceedings and they did not do so, but they had been contacted by the mother to advise that she and the four children were all sick and hence the mother was unable to attend court today.

2. I have also been advised by the Registry that the National Enquiry Centre received a call from somebody purporting to be the mother in this matter conveying the same information.

3. Nonetheless the father has asked that I proceed to deal with this matter today.

4. Whilst I accept that the mother may not be in receipt of the grant of legal aid for the contravention proceedings, there is nonetheless no appearance by the mother or on her behalf.  Even if she has been unwell and was unable to attend court personally, it was always open to the solicitors acting for her in the parenting proceedings, to take the fairly limited and relatively inexpensive step of seeking to appear by telephone today to make any application for an adjournment.  They did not do so.

5. It was also open to the mother, if she was not of course too unwell to do so, or otherwise unable to do so because of the need to attend to sick children, to herself seek to attend by phone today to seek the adjournment.  She did not do so.

6. The Federal Circuit Court of Australia Act 1999 in Part 6, Division 5, contains detailed provisions about the participation in proceedings in this court by electronic communication.  A telephone call to the National Enquiry Centre or to the Registry is not an attendance at court.  Nor is it an attendance at court for somebody to send a communication to the other side.  An attendance at court is just that.  It is an attendance at court in person or, if permission is granted by the court to do so, by electronic communication, when the matter is called on.  This matter was listed at 10 o’clock this morning.  It is now almost 12.15 and it is clear that there will be no appearance by or on behalf of the mother today.

7. I am not suggesting it would not be open to a court, in circumstances such as apply in this case, to nonetheless exercise a discretion to refuse to proceed to hear a matter when pressed by an applicant faced with an absent respondent.  However, I am not prepared to do so in this case.  This is a matter where, on the only evidence that I have before me, there were consent parenting orders seeking to facilitate the father and child having a relationship and the orders are not being complied with.

8. The court may hear contravention proceedings on an undefended basis if satisfied as to service (Jackson & Fordham, (1994) 18 Fam LR 336 at 346, (1995) FLC 92-561 at 81,599).

9. I am satisfied that if and to the extent to which the mother legitimately could not attend today and seeks at a subsequent date to satisfy the court that she could not, that possibility can be appropriately covered by the way I frame any orders that I may be satisfied I should make as a result of the outcome of this hearing.

10. The communications, both to the father’s solicitors and to the court, indicate that the mother is aware of today’s listing.  She was legally represented before the court on 11 December last year when I listed the father’s contravention application of October 2013 for hearing today.  There was no suggestion raised by counsel who appeared for and with the mother on that occasion to suggest that the mother did not have the father’s documents.

11. I infer in the circumstances, albeit no evidence of service of the father’s contravention application filed 11 October 2013 and the supporting affidavits has been presented to me, that the mother had the relevant documents and was fully aware of what was raised in them.

12. So far as the later contravention application and supporting affidavit filed on 13 June 2014 is concerned, I accept the evidence of Ms J in her affidavit sworn on 23 July 2014 and filed on the same day, that on 26 June 2014 she posted to the solicitors on the record for the mother in the pending parenting proceedings documents including a copy of the contravention application and supporting affidavit, both filed 13 June 2014.

13. Service of a contravention application is required to be effected by hand (Federal Circuit Court Rules 2001, r.6.06(1)), unless, inter alia, there are current proceedings for which there is a notice of address for service for the person to be served (Ibid, r.6.06(2)(a)). There are current proceedings for which there is a notice of address for service for the mother, namely the pending parenting proceedings. Her address for service in those proceedings is stated on the amended response filed on 25 November 2013 and it is those solicitors to whom the correspondence with the copies of the later application and affidavit were sent. There is no record on the court file of those solicitors having ceased to act, or of any subsequent change of the mother’s address for service.

14. I am therefore satisfied that the mother has received copies of the documents the father relies upon, is on notice of today’s listing for hearing, and I am satisfied that prima facie it does not entail a denial of procedural fairness to the mother to proceed with the hearing.

The alleged contraventions

1. Part of the procedure that the court is to follow in dealing with contravention proceedings cannot be satisfied because of the absence of the mother. The court cannot formally inform her of the contraventions and invite her to indicate whether she admits or denies them (Ibid, r.25B.04(a) and (b)). I will however formally state the contraventions that I derive from the two applications that I am dealing with and which, if the mother had been present, I would have preferred against her. They are as follows:

   a)It is alleged that the mother contravened parenting orders made by this court on 22 July 2013 in that she refused to allow the father to spend time with the child, X, in accordance with those orders on 15 September 2013.

   b)It is alleged that the mother contravened parenting orders made by this court on 22 July 2013 in that she refused to allow the father to spend time with the child, X, in accordance with those orders on 22 September 2013.

   c)It is alleged that the mother contravened parenting orders made by this court on 22 July 2013 in that she refused to allow the father to spend time with the child, X, in accordance with those orders on 6 October 2013.

   d)It is alleged that the mother contravened parenting orders made by this court on 22 July 2013 in that she stayed longer at the changeover venue than five minutes on 1 June 2014.

The standard of proof

1. The standard of proof to be applied both to facts to be proven in relation to establishing a contravention and facts to be proven to establish any reasonable excuse that a respondent may argue, are as a general rule to be established upon the civil standard (section 70NAF(1) and (2)). The exception to that set out in subsection (3) of section 70NAF is where orders of a certain kind are sought from the court. In this particular case I am not asked to make any of the orders referred to in section 70NAF(3) and therefore none of the facts need to be established beyond a reasonable doubt. They need to be established on the balance of probabilities, having regard to the gravity of the matters alleged (Evidence Act 1995 (Cth), s.140).

The orders allegedly contravened

1. The orders that are alleged to have been contravened, as I say, were interim parenting orders made by consent on 22 July 2013.  Those orders have not been engrossed and entered.

2. Counsel for the father relied on the court record, including the bench sheets, together with the exhibit that is referred to in the relevant bench sheets, because what is attached to the contravention applications as the order is in fact interim terms of settlement with nothing to indicate that an order was made in accordance with that document.

3. The court record shows that on 22 July 2013 counsel appearing today for the father then appeared for the father, a solicitor, Ms Court, appeared for the mother, and that Ms Rowley, the Independent Children's Lawyer, was also in attendance and that on that occasion, by consent, the court made orders in accordance with the terms of settlement then marked exhibit A.

4. Exhibit A from 22 July 2013 provides that by consent and pending further order, all previous orders were suspended, that the parents have equal shared parental responsibility for X, whose date of birth is

   
   

   (omitted) 2008, that the child live with the mother, and that the child spend time with the father each Sunday from 9 am to 5 pm to commence on 28 July 2013 and at such other times and further times as agreed by the parties.  Under paragraph 5 of exhibit A, changeovers occur at the (omitted) Police Station and if the mother is late dropping the child off the father is entitled to keep the child for the same amount of time at the end of his contact with her.

5. Paragraph 5 also provided and I quote:

   The mother is to stay no longer than five minutes in the police station after the arrival of the father.

6. Paragraph 6 provides that if the father returns the child more than half an hour late, the next period of his time is suspended.

7. Both parties were also restrained from brining any other person to the place of changeover specified in paragraph 5 of the orders, namely (omitted) Police Station.

8. The orders provided that notwithstanding any other provision of the order, the child was to spend Mother’s Day with the mother and Father’s Day with the father, in each case from 9 am to 5 pm.  It contained other provisions which appear not to be relevant for present purposes.

9. As the mother was legally represented before the court when these orders were made on 22 July 2013, I am satisfied that she is aware of those orders.

Contravention 1 – 15 September 2013

1. In relation to the first of the alleged contraventions, 15 September 2013, the father’s evidence is that on that date he attended at (omitted) Police Station to collect X.  He entered the police station at 8.50 am and waited until 9.10 am for the mother to attend.  His evidence is, and there is no contradiction of it and I therefore accept it, that the mother failed to attend the police station with the child and he therefore did not get to spend time with the child on that occasion.

2. As I say, that is unchallenged evidence.  There is no reason to doubt its veracity and I accept that evidence.  Having regard to the gravity of the matters alleged, I am satisfied that on the balance of probabilities the mother failed to attend, contrary to the requirements of the court order, to deliver the child to the father at the police station on that occasion at 9 am and that in those circumstances she has contravened the orders.

Contravention 2 – 22 September 2013

1. In relation to the second occasion, the father’s evidence is that he attended at (omitted) Police Station at 8.50 am to spend time with the child.  He relied on a statement he gave to the police on that occasion as to what transpired.  He said when he arrived at the police station on that occasion he waited in the foyer area.  At about 8.58 am the mother walked in to the police station with the child.  The mother kissed the child and said goodbye.  The mother then walked out the front doors of the police station. 

2. His evidence is that the child was a bit upset from the mother leaving and she started to “tear up a bit.”  The father said that at that stage he had not seen the child for eight weeks.  I accept the father's evidence that it was his opinion that that was the reason that the child, in his terms, “started to tear up a bit” as no more than his subjective belief. 

   
   

   I am unable to determine on the evidence why the child “started to tear up a bit”.

3. The father said the reason he did not see the child for eight weeks was because the mother could not deliver the child to him having given birth to twins.

4. The father’s evidence is that he noticed that the mother was standing a short distance away from the front doors of the police station.  He asserted that there was a previous incident where the mother had waited outside the police station and he had requested the police to walk him to his car, that when the police left the mother approached him and “grabbed X out of my car and left with X.”  There is no particularisation of any such incident that the father asserts happened beyond that statement.  I intend to place no weight upon that assertion, adverse to the mother, because of the lack of particularity or detail in that evidence.

5. The father said he approached the police officers on duty at the front counter and as a result of his approach a female police officer then walked the father and the child to the father’s car which was parked some little distance down the road.  He says that as they walked out of the station the child saw her mother standing nearby and started whingeing even more.  The assertion that the child saw the mother standing nearby is a conclusion.  The father gives no evidence to support why he formed that conclusion or opinion.  I accept that that is his subjective view.  However, there is no objective basis for me being satisfied that that is why the child was, to use the father’s words, “whingeing even more.”

6. The father says that the child wanted to reach out to the mother and get a hold of her hands.  Again, I accept that that was the father’s impression.  Whether that is in fact why the child was doing whatever the child was doing is not established to my satisfaction on the evidence.

7. The father walked with the child to his car and put the child into her seat in the back passenger’s side of the car.  He said he tried to do up the child’s seat belt but the child was kicking and screaming at this stage and did not want to have the father put her seat belt on.

8. The paternal grandmother had accompanied the father on that occasion, but had waited in his car.  His evidence is that his mother, the paternal grandmother of the child, was standing at the back passenger side of the car.  He says he finally got the seat belt on the child and shut the door and spoke to his mother, but as he did so he walked around to the driver’s side of the car to leave and at that point the child had undone her seat belt and had jumped over to the front passenger seat.

9. His evidence is that the mother appeared and she opened the front passenger door of the father’s car to let the child out.  The father told her:  “Don’t touch my car.”  He closed the front passenger door and then the child went into the back of the car, where the car seat was, and where the paternal grandmother was at that point.

10. His evidence is that the mother was pushing the paternal grandmother out of the way and saying:  “You can’t take her.  She’s coming home with me.”  His evidence is the mother then reached into the car through the rear passenger side door and had half her body in the back of the car.  She took the child, the father thinks, by the left arm to pull the child from the car.

11. The father said:  “You can’t take her.  She’s coming with us.  Don’t touch my car.”  He asserts the mother then came out of the car and pushed him away saying:  “Don’t touch me.”  The paternal grandmother then said to call the barrister and let her know what’s happening.  And the father said:  “I’m just going to go up to the police station.  Don’t go anywhere.”

12. The father then walked back to the police station, had a conversation with the police officers at the counter and soon after two female police officers walked back to the father’s car with him and had a conversation with him and the paternal grandmother.  The mother was a little bit further down the road.  The father pointed her out to the police and they walked off in that direction.  A little later the father and his mother returned to the police station and gave the police details.  The father states that he did not get to spend time with the child on this occasion.

13. The evidence here is that the mother attended to make the child available to spend time with the father.  The evidence is that the mother remained in the vicinity of the police station after delivering the child to the father.  There is no assertion that the mother remained present for longer than the order permitted her to do so.  The father says that the mother arrived at 8.58 am but he gives no evidence as to the time that he left the police station with the child and a police officer to go to his motor vehicle.  At that point the evidence would be insufficient to show that the mother had remained in the vicinity, contrary to the provisions of the court orders.

1. The father’s evidence is that when he attempted to put the child in the motor vehicle the child became extremely distressed.  He seeks to assert that that is because the child was aware of the mother being in the vicinity.  Whether that is so or not, I cannot find on the evidence that is before me.  But it is the case that by then, under the court orders, the child was to be in the father’s care and the unchallenged evidence is that the mother, over the father’s objection, went to the father’s car, removed the child and took the child away, preventing the father from having the full amount of time that he was entitled to under the court orders.

2. Although the time at which the mother withdrew the child from the car and left is not stated, the inference from the evidence would seem to be that at best the father had the child in his care for a matter of minutes.

3. It has been submitted that not only should I be satisfied that this amounted to a contravention of the court’s orders, but it was a contravention which falls to be determined under subdivision F of Division 13A of Part VII of the Family Law Act. That is, it should be treated as a more serious contravention. To fall under subdivision F of Division 13A the matter must fall within one of the two categories identified in section 70NFA. In general terms, the first category is that the mother has previously been dealt with by certain specified types of orders being made against her, consequent upon a prior finding of contravention of the same order. The second category is that the court is satisfied the present contravention involved the mother behaving in a way, to use the words of section 70NFA(2)(b), that showed a serious disregard of her obligations under the order, that is, the order of 22 July 2013.

4. What is said to amount to behaviour showing a serious disregard of the mother’s obligations under the order is the mother approaching the father’s car, opening the doors against his objection and not leaving when he told her to, physically entering the father’s car when the child had been placed in it by the father, and removing the child from the car.

5. It is submitted on behalf of the father that this was not simply a passive contravention of an order, for example by simply not attending to make the child available, but an active contravention of the order by deliberately removing the child from the father’s care contrary to the order.

6. As I have said, I am not asked to make an order under subdivision F which would attract the requirement of my being satisfied beyond a reasonable doubt. But bearing in mind the suggestion that this would be a more serious contravention, then even on the civil standard, having regard to the requirement of s.140 of the Evidence Act to consider “the gravity of the matters alleged”, it might be argued that although it is on the balance of probabilities, the court should proceed upon the basis that when one looks at where the probabilities may lie, it is less probable that a person would commit a more serious contravention than a less serious one. So the court needs to be a little more satisfied in these circumstances than otherwise.

7. Where the mother has not come to court, for whatever reason, to contradict any of the evidence or to challenge any of the evidence relied upon by the father, this is the only evidence I have.  So the question becomes whether or not I should be satisfied that the mother’s conduct involved a serious disregard of her obligations under the court order, in circumstances where the father gave evidence that the child was, by this point, quite distressed, where he believed that distress was caused by the mother's presence, of which I am not objectively satisfied, where however the mother was in the vicinity but with no evidence this was contrary to the court order, and the mother intervened and removed the child from the father’s care.  And I have to say I am not satisfied.

8. The only evidence I have is that this child was extremely distressed by this point.  The child was very actively and vigorously resisting all attempts by the father to secure the child safely in her car seat so that he could depart with the child in the motor vehicle.  He had placed the child, with difficulty, in the car seat once and the child had extricated herself from that car seat.  The child was in the back seat and climbed into the front seat.  When the father went to get to the child in the front seat, the child climbed back into the back seat.

9. The picture that the father paints is the child actively seeking to resist him and to avoid him.  I accept that the father honestly believes, because there is no challenge to this, that the child was distressed either wholly or partly because the child was aware that the mother was in the vicinity.  But I have no objective evidence that that is so.

10. The father himself refers to the fact that the child had not seen him for some little while.  There could be a number of reasons why the child behaved the way the child did.  And in fact there might not be one simple answer.  Certainly, the mother’s behaviour in taking the child involved a breach of the court order.  But in circumstances where this child was highly distressed, on the father’s own evidence, and very actively seeking to resist the father’s attempts to be able to leave to spend time with the child in accordance with the orders, I am not prepared to find that the mother’s behaviour was at the more serious end of the spectrum and I am not prepared to treat the matter as falling within subdivision F.

11. I am however satisfied that this was a contravention of the order.  If the mother saw the child distressed then her obligation, if in fact she was justified in being on the scene at all, was not to remove the child but to seek to pacify the child and encourage the child to spend time with the father.  That certainly may have involved some difficulty for the mother bearing in mind the limited time she was permitted to remain in the vicinity under the court orders.  Had she stayed longer than permitted under the order trying to pacify the child, she might have then found herself faced with a different contravention, as in fact is the case in relation to the fourth of the contraventions I am dealing with.  But be that as it may, on the evidence before me, I am satisfied that this was a contravention of the order by the mother.

12. And again, in the circumstances where the evidence does not enable me to find that the child was distressed for the reason that the father asserts, there is nothing in the evidence to enable me to make a finding that the child was distressed in a way or for reasons that might arguably, and it is for the mother to prove in any event, amount to a reasonable excuse.  I am satisfied that this was a contravention without reasonable excuse falling within Subdivision E, but not Subdivision F, of Division 13A.

Contravention 3 – 6 October 2013

1. In relation to the third alleged contravention on 6 October 2013, the father’s evidence is that on 5 October he sent a message to the mother and she replied to him.  The message he sent was that he would be attending changeover the following day and he expected the child to be brought on time, and that if the mother did not bring her he would expect her to be brought by another person, not Mr M.

2. In fact what the father was suggesting to the mother on that occasion was, as I understand it, that she breach the court order.  The order provided, in paragraph 7:

   That each of the parties is restrained from bringing any other person to the place of changeover.

3. The orders require that the mother drop the child off and that the father collect the child.  They do not provide for proxies.

4. In any event, the response by the mother was:

   Good for you.  X is afraid of you.  I am going to get things changed back to a contact centre where I don’t have to see you.  I will not be attending tomorrow.  I’m afraid for my safety and for X.  This isn’t working.

5. In relation to the mother's suggested fear for her and the child’s safety, I note, of course, that the changeover is inside a police station.

6. The father’s evidence is that on 6 October 2013 he attended the (omitted) Police Station pursuant to the orders to collect the child, arriving at 8.50 am and leaving at 9.10 am.  The mother did not arrive.  He did not spend time with the child.  And I am satisfied that that is clearly a contravention of the court orders.

Contravention 4 – 1 June 2014

1. In relation to the final alleged contravention, the father’s evidence is that on 1 June 2014 he arrived at the police station at 8.30.  He says the mother arrived at 8.54 am with the child.  He said that when he greeted the child and said “It’s daddy’s time” the child said:  “I don’t want to go with you.”  The father sought to persuade the child to go and said:  “Mummy has to leave.”  He says the mother responded:  “I am not leaving her.”  The father then sought to engage the child in conversation and the child did not reply.  The father sought to further encourage the child to come with him.

2. He says on different occasions he saw the child whispering in her mother’s ear and on the last occasion he saw the mother say:  “Say you don’t want to go.”  He says at 9.04 am, Mr M brought the twins to the main entrance of the police station and said:  “The twins are crying” and handed the twins to the mother.

3. The father says he tried to hold the child’s hand but the child walked over to the mother.  The mother then said:  “She doesn’t want to go with you so I’m going to leave.”  He says with that the mother took the children, including the subject child, and left the police station.  He says the mother stayed at the police station from 8.54 am to 9.29 am and he says this is in breach of the provision that she is to remain no longer than five minutes.

4. That clearly is the provision of the court order.  The only evidence I have is that the mother stayed well over five minutes and that is a proven breach of the court orders.

Orders sought by father

1. The orders that the father has indicated he would seek, if I am satisfied of the contraventions as asserted, is, to use the vernacular, for make-up time and costs. In relation to the first, third and fourth contraventions, the make-up time is said to be sought under section 70NEB.

2. In relation to the second, it was said to be sought under section 70NFB. In circumstances where I am not satisfied the matter falls to be determined under section 70NFB, that is Subdivision F, but falls under Subdivision E, I proceed upon the basis that in the alternative the father would seek the make-up time for the second alleged contravention under section 70NEB.

Nature of compensatory time order

1. It is important to note the specific provisions under which I am asked to make the order, to clearly understand the nature of the order that I am asked to make.  It is a parenting order.  That is what the section calls it under subsection 70NEB(1)(b):

   “(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.”

2. Section 70NEB(4) provides:

   “(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.”

3. And finally, subsection (5) provides:

   “(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.”

4. The paramountcy of the child’s best interests applies to the making of all parenting orders under Part VII (s.60CA). The formulation of s.70NEB(5) reinforces that compensatory time is not a punishment for contravening an order. I proceed upon the basis that section 60CC applies in deciding whether to make a compensatory time order, and to the terms of any such order. And the matters in section 60CC, to the extent to which the evidence enables me to address them, are to be assessed against the background of section 60B.

Consideration of compensatory time

1. The main matter, it seems to me on the evidence before me, that would be raised under section 60CC is the matter referred to in paragraph (2)(a), the benefit to the child of a meaningful relationship with each parent.  It clearly was the purpose of the orders being made on

   
   

   22 July 2013 to enable the child to have a meaningful relationship with both parents.  That has been thwarted and frustrated by the contraventions of the court orders I have found proven.

2. Prima facie I am satisfied that the court should seek to promote the child’s best interests by reinforcing the child’s opportunity that has been lost as a result of the contraventions to form and benefit from the relationship with the father.  Certainly, I do not ignore the evidence of the father, particularly the evidence as to what occurred on 1 June this year, that might suggest that this child may, for whatever reason, be resisting spending time with the father.

3. But the difficulty here is with the mother not participating and not putting evidence before the court, it is very difficult for the court to determine clearly and precisely what is driving the child’s behaviour, and more correctly what drove the child’s behaviour on this particular occasion.

4. Ultimately, of course, if this child is distressed and arguably traumatised by the process of attempting to carry into effect the court’s orders, it will not advance the child’s relationship with the father and the father needs to think about this fairly carefully.  What it will do is to damage that relationship.  But as I say the evidence at this stage does not enable me to more deeply assess what lies behind the very vigorous objection and resistance that the child showed to going with the father on 1 June this year.

5. Bearing in mind there is an Independent Children's Lawyer representing the child’s interests in the parenting proceedings, whilst the Independent Children's Lawyer was not present at the commencement of this hearing and I would not have expected her to be so, as is my usual practice when it became clear that I was asked to make an order where the child’s best interests was paramount and directly had to be taken into account, I indicated that I would wish to have any submissions she may wish to make from the Independent Children's Lawyer.

6. I stood the matter in the list and ultimately the Independent Children's Lawyer attended and indicated that she neither supported nor opposed the orders that the father sought and was not in a position to put to me that they would either be in the child’s best interests or not be in the child’s best interests.  I therefore excused her from further attendance at that point.

7. As I say, ultimately I do have some concern as to the dynamics that are going on here.  The evidence does not clearly establish before me, because it would not be relevant to the way the contraventions were brought, whether the child has spent any time with the father since the contraventions that occurred in September and October last year.

8. Certainly, I note that there was within the bracket, as it were, of the first three dates, one occasion where it is not alleged there was a contravention, 29 September.  Whether or not the child has been spending time with the father otherwise, I cannot say.  Certainly, the father does acknowledge that there was a period before the breaches in September 2013 when the mother, he says, said she was not able to make the child available to him and the inference is that he had not seen the child up to that point for a period of eight weeks.  But that is as far as the evidence goes.

9. Based upon that evidence I am not satisfied that a hiatus of eight weeks is such, having regard to the age of this child, as would give the court great concern as to the appropriateness of simply picking up where things otherwise left off in the orders that were made in July last year.

10. Ultimately, and doing the best I can on the evidence before me, I am satisfied on balance that it would be in this child’s best interests to have some more intensive time with the father, assuming the father is able to overcome the child’s resistance if it recurs, to try and restore the relationship and to give the child the benefit of that relationship if it can be restored.

11. And to do that I ought to give the father and the child the opportunity to spend time on four additional Saturdays for the same span of hours as is to occur on the Sundays.  That will mean that for four consecutive weekends the child would be with the father from 9 am to 5 pm on both the Saturday and Sunday of those weekends.

Costs

1. Otherwise what is sought on behalf of the father is a costs order.  That is that the mother pay the father the sum of $2,685 being the schedule cost for two contravention applications and that that be paid within

   
   

   30 days after service of the court order upon her.

2. Whether or not a costs order is to be made is to be determined having regard to section 117 of the Family Law Act. Even though in certain circumstances, under Division 13A, the court has to consider making certain costs orders, that does not affect the application or operation of section 117.

3. The starting position therefore is each party bears his or her own costs and an applicant for a costs order bears the usual civil onus of establishing reasons sufficient to persuade the court that it ought to order costs.  The relevant considerations in ordering costs are those set out in subsection 117(2A).

4. In relation to conduct in relation to the proceedings, it was submitted the mother’s breach of the orders involved what was termed contumelious disregard of orders.  I sought clarification of that submission and it was at that point that it was made clear that at least one contravention, the one on 22 September 2013, was said to involve a serious disregard of obligations under the order.  I will deal with it in that context.  I do not understand that the submission was made otherwise.  I have already found that the relevant contravention does not fall under Subdivision F because it did not involve a serious disregard of obligations under the order.

5. Further, it was submitted that the mother’s failure to attend at court today and to produce a medical certificate was conduct in relation to the proceedings justifying a costs order.

6. But of course there would have to be a hearing at some point in relation to these contravention applications.  And in relation to the second of the contravention applications in time, it is being heard on the first occasion the matter has come to court.  I do not understand therefore that the mother failing to attend today has added to the father’s costs.  Rather, it arguably has reduced his costs because the hearing has been rather briefer than it might otherwise have been had she attended and defended the matter.  I am not satisfied that these matters warrant a costs order.

7. However, I am satisfied one other matter relied upon by the father is a very strong argument in favour of a costs order.

8. The consideration under paragraph 117(2A)(d) is:

   Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court.

9. That is clearly the case here.  I have found all four contraventions proven with no reasonable excuse.

10. I have no evidence as to the parties’ financial circumstances.  It has been conveyed to the court, through the communication read by counsel for the father from the mother’s solicitor to her instructing attorney, that the mother does not have legal aid for these proceedings.  There is no evidence whether the father has legal aid or not.

1. It was also submitted on behalf of the father that the mother was wholly unsuccessful in the proceedings.  It was unclear what position she would have taken had she come, although the inference from the fact that I listed the matter for a contested hearing clearly implied that in some sense she sought to contest the father’s application.  And to that extent I accept that she has been wholly unsuccessful, at least to the extent of the first of these two contravention applications.

2. There is no evidence that any written offers of settlement have been made and I have not been taken to any other relevant matter.

3. In those circumstances I am satisfied that a costs order should be made for both of these applications and I will make the order in the quantum sought. 

Delay in operation of orders

1. There is simply one final matter that I need to address.  As I say, there were communications made first by the mother’s solicitor in the parenting proceedings to the father’s solicitor and secondly, by a person purporting to be the mother to the National Enquiry Centre, suggesting that the mother was unable to come today through illness of herself and her four children.

2. There is no evidence before me of any such fact and there was nobody who appeared by or on behalf of the mother to advance a case for an adjournment.  It is possible to apply for an adjournment, as I have already indicated, by telephone.  One simply needs to ask permission to attend by telephone.  I am told that the message that was left by the person purporting to be the mother ringing the National Enquiry Centre included a request for an adjournment.  The National Enquiry Centre is not the court.  No application for an adjournment was made to the court.

3. But particularly at this time of year, winter, I could not rule out the possibility that perhaps the mother could present, if she wished to do so, evidence to show that she genuinely and legitimately could not have come to court today.

4. In those circumstances, in my view, the court should delay the implementation of its orders in a way that gives the mother a reasonable opportunity, if she wishes to do so, to apply to set aside, vary, suspend or stay the orders within a reasonable period after service.  That is a device which would seek to ensure that the orders that I am otherwise satisfied should be made, not be implemented until the mother has an opportunity, if she wishes, to seek to prove that by proceeding today she was denied procedural fairness.

5. I have foreshadowed to counsel for the father that my inclination, subject to anything that was put in opposition, was to provide for the compensatory time not to commence until the fifth Saturday after service on the mother of a sealed copy of the court orders.  That would afford her an opportunity, if she wished and if she was prepared to act with alacrity, to bring an application before the court to obtain an urgent listing of it and to press, if she chose, an application to at least stay the orders I make until the court could hear any application she made to set aside or vary them, provided of course she had some prima facie evidence, which if accepted, might amount to a good excuse for not being here today.

6. In relation to the costs, the order that I was asked to make was that the payment be made within 30 days.  That in itself would provide an opportunity to the mother to bring an application if she chose to stay, set aside or vary the orders that I am otherwise satisfied should be made, provided the time for payment commences to run from service of the orders on her.

7. Counsel for the father indicated that the father did not be wish to be heard against my framing the orders in that way, and in those circumstances that is what I propose to do.

I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Judge Halligan

Associate: 

Date:  10 September 2014