MSL and GBAC
[2007] FMCAfam 1036
•23 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MSL & GBAC | [2007] FMCAfam 1036 |
| FAMILY LAW – Contravention of parenting orders – reasonable excuse – not proved. FAMILY LAW – Contravention of parenting orders – orders – bond, compensatory time, and compensation for expenses resulting from the contravention. FAMILY LAW – Costs – contravention proceedings – successful applicant seeking costs – respondent opposing costs based on inability to pay – costs ordered with time to pay. |
| Family Law Act 1975 Part VII Division 13A, s.117 |
| Applicant: | MSL |
| Respondent: | GBAC |
| File number: | PAC 582 of 2007 |
| Judgment of: | Halligan FM |
| Hearing date: | 23 October 2007 |
| Date of last submission: | 23 October 2007 |
| Delivered at: | Parramatta |
| Delivered on: | 23 October 2007 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Pappas |
| Solicitors for the Respondent: | Ms Furtardo |
ORDERS
The Court finds that on 21 December 2006 the mother contravened parenting orders of the Family Court of Australia made on 16 August 2006 without reasonable excuse.
Pursuant to s.70NEB orders are made in terms of paras 2, 5 and 6 of the minute of orders sought by the father marked exhibit B.
Pursuant to s.70NEB the mother shall enter into a bond in the sum of $2000 without surety or security for two years to be of good behaviour and to abide by the orders of the Court.
Pursuant to s.70NEB the mother shall pay the father within three months the sum of $598 in compensation.
The mother shall pay to the father's solicitor within 12 months the father's costs of these proceedings in the sum of $1650.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 582 of 2007
| MSL |
Applicant
And
| GBAC |
Respondent
REASONS FOR JUDGMENT
On 16 August 2006, the Family Court of Australia made orders in relation to the parties' children, TTL born on 3 December 1997 and RBL born on 21 September 2000. Those orders were made by consent of the parents and the independent children's lawyer and were made, as I understand it, on the day that this matter had been set down for final determination in that court. Those orders inter alia provide for the children to spend time with the father during the first half of the school holidays commencing in 2006 and each alternate year thereafter, commencing at 6 pm on the last day of school and concluding at 4 pm on 2 January.
With those orders the father had the option of either attending to collect the children in person at the Central West Contact Centre or at his discretion and provided he gave the mother prior notice, have the children fly via an airline of his choice between Sydney and Coffs Harbour. He lives in the Coffs Harbour area, the mother and the children in the Sydney metropolitan area. The father gave the mother appropriate notice indicating that he had booked flights for the children. The mother ultimately did not send the children, notifying the father round about 1 o'clock on the day that they were due to travel to spend time for the holidays with him.
The father has now brought a contravention application seeking that the mother be dealt with for the admitted contravention of the orders by the mother in not sending the children to spend time with the father on 21 December last year in accordance with those orders. Whilst the mother admits the contravention she contends she has a reasonable excuse and that is the issue for determination in this matter.
What amounts to a reasonable excuse is subject to a non-exhaustive definition in Div.13A of Part VII of the Family Law Act, under which the proceedings are to be determined. Amongst other things the respondent is taken to have a reasonable excuse for contravening an order under which a child was to spend time with the applicant if 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 subject children, and the period during which, because of the contravention, the children did not spend time with the applicant was no longer than was necessary to protect the health and safety of the person concerned. That clearly is the issue that the mother seeks to raise in this case.
The evidence of the mother which I accept is that on or about 22 August 2006, she received a telephone call from the principal of the school attended by TTL advising her TTL had stabbed another child at the school.
The mother says that TTL in fact in 2004, was diagnosed with specific learning disorders of both visual and auditory kinds. She says that TTL was assessed at the CEC by an educational psychologist and she says further that she has been informed that these learning difficulties cause TTL to fail to process information which causes him to stress highly and fidget. He also suffers panic attacks and during panic attacks at home she says that the child has become violent and also has attempted to tear his clothing and threatened to kill himself. She says she has observed that when the child fidgets he attempts to eat his shoes and also eat the carpet.
Her evidence is that TTL was assessed at the school he attended at the time, being NR Public School, by the school counsellor. That appears to be a school attended by the child prior to the school that he was attending in August of last year, being KR Public School. The mother's evidence is that TTL has undergone speech and occupational therapy at RCFH and has attended counselling at that centre, his counsellor being a Miss DF.
On being advised of the child's behaviour in August by the school principal the mother says that she called Miss DF for advice as to how to deal with the situation and she says she was understandably extremely distressed and shocked.
She then says that she enrolled both children in an individual counselling and group therapy program at an organisation called JFC. There is no evidence before the Court as to the nature of that centre, what its purpose or function is, or the qualifications of its staff. Nor is there any evidence to explain why the mother, after TTL had been having counselling apparently for some time with Miss DF, discontinued that counselling and took the children elsewhere.
On the day that the children were due to travel to spend time in the last Christmas school holidays with the father, 21 December 2006, a letter was provided to the mother by JFC. It purports to be under the signature of an AA, described as a family counsellor, and a BM, described as a family program manager. There is no evidence as to the qualifications or experience of either of these persons and their competence to express any of the views or opinions contained in their letter. I also note that in fact there are two letters from this organisation bearing the same date in circulation. One was provided by the mother to the father in Coffs Harbour Local Court in January 2007, where he initially filed his contravention application. It indicates that the children commenced seeing JFC since 26 September 2006. There is no indication in this version of the letter as to who it was at JFC that they were seeing. The version of this document attached to the mother's affidavit says that JFC has been seeing both children since 31 October 2006.
Ultimately I am not satisfied that anything of significance turns on this difference, and it has not been suggested that there is any other significant difference between these documents.
However, there are other differences between these two documents. For example, if one compares the third paragraph of each document, whilst they commence with the same words they end with different words. Similarly whether or not that can be fully explained by a change in the paragraphing or whether or not there are any deeper differences, as I say, was not a matter that was ventilated before me.
It is not clear which version of this document the mother had when she made the decision not to send the children. Further, the mother's suggestion that she got this letter late on 21 December, whereas she in fact notified the father that the children would not be coming at about 1 pm on that day, was not a matter pursued in cross-examination of the mother and I take it no further.
The gist of the letter from JFC, and in fact it would seem both versions of the letter, seems to be that the children indicated to JFC that they had strong concerns that they would be hurt by their father and nanna and that they discussed previous occasions when they had been hit by their father and their nanna and also verbally abused and physically abused by their nanna. It suggests that when asked about holiday time with their father they reported being scared, trapped, sad and being surrounded by people who could hurt them.
The letter from JFC also expresses concern about TTL's “suicidal ideologies” (sic) and his increased self harm over the past month. What that entailed is not disclosed anywhere in the evidence.
This, of course, needs to be read in context. The context is that orders were made by consent on 16 August 2006, that later that month the mother was advised that TTL had harmed another child at school, that in September she approached JFC in relation to the children, that JFC subsequently reported certain matters, but that those matters are of a kind, and would appear arguably to be consistent with, the sorts of behavioural problems that the mother in paras 10, 11 and 12 of her affidavit suggest are of some age dating from 2004.
There is no evidence to indicate whether JFC was given details of prior diagnoses and prior counselling of these children by the mother. There is no evidence that the mother advised JFC of the context in which the orders, which the letter that JFC gave to the mother dated 21 December 2006 advised her to breach, were made had been fully explained to JFC staff. Nor is there any indication that JFC staff were provided with a copy of the family report that was prepared in the course of the Family Court proceedings that resulted in the orders of August 2006.
All of these matters would be highly relevant to the context in which these children were being brought to JFC.
It was certainly put to the mother and she denied that she was in effect hawking these children around to try and find somebody who would give her the excuse not to provide the children to spend time with the father in accordance with the orders, and I certainly do not make any such finding against the mother.
But the question in this particular case is whether the mother can prove that she honestly believed on reasonable grounds that it was necessary to breach very recent court orders to protect the health or safety of these children. The question therefore is whether the mother had reasonable grounds to honestly believe that the father was the problem and sending these children to the father was going to exacerbate or trigger the problem and that retaining the children from the father would fix or ameliorate the problem.
Certainly the mother in her evidence provides a second letter from JFC dated exactly six months after the first, 21 June 2007. In the intervening period between those two reports or letters the children had not seen their father at all, yet the second report suggests despite the mother's reluctance to concede it that the children's behaviour had deteriorated. It clearly indicates in the first paragraph, last sentence of the letter dated 21 June 2007, "Staff continue to notice a significant change in the children's behaviour over the past several months" - that clearly is since the December 2006 letter - "and have noticed an increase in their anxiety levels, specially around contact visits as well as phone contact from MSL", MSL being the father. Again I emphasise the children did not see the father on any occasion in that intervening period.
Further, in the second paragraph of the letter of 21 June, whilst indicating that the children "are continuing to express strong concerns that they will be hurt by dad and nanna and further discussed previous occasions when they had been hit by them", it indicates that the initial feelings of sadness and confusion have developed into feelings of anger and hatred towards the father and the paternal grandmother. As I say, this is during a period of time when the children had not seen the father or the paternal grandmother. In fact, they had not seen the father or the paternal grandmother since the orders were made in August until the second letter in June, yet things were deteriorating.
However, this cannot be taken into account in determining whether or not the mother had a reasonable excuse as at 21 December 2006 for not providing these children to the father, because clearly she could not then have known of the matters that subsequently transpired.
The mother knew that TTL had particular problems. She knew that one of the manifestations of that was frustration, increased anxiety, panic attacks and violent reactions. There is no evidence to suggest whether or not the child had previously visited any violence upon another child. It is not therefore established by the mother that the incident reported to her by the principal in August 2006 so soon after these orders were made, was necessarily any different to anything that had happened before. But even if the child had not previously displayed any violence towards another child, the child had previously been violent. The mother's evidence says so, and the question must arise what is it then that has caused any deterioration in the child's behaviour. On what basis does the mother come to the conclusion that it must have been spending time with the father or the prospect of spending time with the father?
The evidence does not establish what the pattern of the children spending time with the father was leading up to the orders of August 2006 - whether they had been regularly spending time with him or had not been regularly spending time is simply not disclosed. The fact is the mother knew that under the orders that she agreed to and that she represented to the Court were in the best interests of these children, and bearing in mind all of the things that these children had previously experienced, including the suggested violence and verbal abuse from the father and the grandmother, including suggested incidents of family violence, including TTL's diagnosed conditions, including his panic attacks and his violence, that nonetheless these children were to spend time with the father as per the orders, and subsequently the mother did not carry through on making it happen.
She relies on the December 2006 report from JFC and appears to rely upon nothing else. The material provided to JFC clearly was provided by the mother and the children. Within that is there anything that the children could have provided to JFC that could not have been provided in the course of preparation of the family report and/or to the children's own legal representative in the proceedings that resulted in the orders in August 2006? It is not apparent to me that there is anything of that character. Certainly it is not the mother's case in any evidence that she has put before the Court that the matters adverted to in the JFC report were matters not adverted to at any stage in the prior proceedings that resulted in the orders being made.
It is a serious thing for a person to stand in defiance of a court order. They may, in some circumstances, be justified in doing so but they need to establish good reason to do so. In this particular case the suggested good reason is the necessity to protect these children from harm. But in my view there is insufficient evidence in this particular case - and it is for the mother to prove the reasonable excuse - for me to make a finding that anything adverted to by the mother or in the JFC report is intrinsically different from anything that existed and was known before these orders were made.
In those circumstances the mother fails to prove a reasonable excuse. It cannot be the case that a person, knowing of certain things affecting the welfare of the child, can consent to the orders being made and then, having kept those matters to themselves, ignore the court orders and rely upon those matters after the event to justify doing so.
Whilst the evidence does not enable a concrete or definite finding that that is what has happened in this case, the evidence certainly fails to prove, as I have said, that anything adverted to as arising after the orders were made is intrinsically different to what existed to the mother's knowledge before the orders were made. The mere fact that JFC expressed a certain view, based upon observations on a fairly one-sided basis it must be said, the father never being involved in the process, that the orders should not be complied with does not automatically absolve the mother of the obligation to comply. As I say, for these reasons I am not satisfied that there was a reasonable excuse.
Following on the finding that the mother has failed to establish reasonable excuse for the admitted contravention of the court orders, the question arises what orders should be made. The father seeks a variety of orders, firstly that the mother be required to enter into a bond for a period of two years in the sum of $2000 with cash security - it is incorrectly referred to as surety in the minute of order I have been provided; that the father have make up time for effectively one half of the coming long summer school vacation in which he would otherwise not have the children; that the mother pay him compensation as a result of the contravention in the sum of $1598; that the mother pay his legal costs in the sum of $1650; and in relation to the make up time a provision that the mother have the option of spending time with the children in Coffs Harbour from 9 am Boxing Day to 5 pm on 27 December and that further the mother be at liberty to telephone and speak to the children between 7 pm and 8 pm on any day that they are with the father.
Different provisions of the Act apply to various of these orders. I will deal with them one at a time.
Firstly, the orders in relation to the bond, the make up time and the provision of compensation are all orders provided for under s.70NEB of the Family Law Act. The purpose of an order to enter into a bond and the effect of such a requirement, and the consequences of failing to enter into a bond or having entered into it, failing to act in accordance with the bond, have been explained in court to the mother and she has had no question in relation to those matters after that explanation. That is a precondition under s.70NEC(5) to the Court placing a requirement on the mother to enter into a bond.
I am satisfied that this is a proper case for a requirement that the mother enter into a bond. The orders were contravened almost immediately after they were made. The orders made in August 2006 provided that the children spend the first half of the Christmas school holidays with the father. They did not do so under an admitted breach, they did not spend time with the father between the making of the orders and the Christmas vacation, and in fact had not spent time with the father until at least 21 June 2007 despite the orders providing otherwise. The mother, as I say, has failed to establish reasonable excuse for this contravention and the point needs to be made to the mother in fairly clear and unambiguous terms that this is a solemn requirement upon her. She is not to lightly disregard an order of the Court.
Having said that it also needs to be understood that a requirement to enter into a bond is not in fact a penalty upon the mother. It is a requirement that she sign a formal legal document acknowledging that she is bound by the conditions of the bond, and those conditions will be, to be of good behaviour and to abide by the orders of the Court for a period of two years. Otherwise there is no consequence or penalty for her.
However, if during the period that the bond is in operation the mother again breaches the order or any other term of the bond and that is proven against her, then she is subject to effectively two consequences. One is whatever consequence flows from the further breach of any court order. The other is that she will be called upon to pay the $2000 or whatever other sum might be fixed under the bond, and I do in fact intend to fix the sum at $2000. I do not intend to place a requirement for either a surety or security in any form for that sum.
I do that having regard to the evidence, limited though it be, in relation to the mother's financial circumstances, but the mother does need to understand that there is clearly some additional motivation now placed upon her to comply with these court orders. If it were to be the case that the mother formed the view based upon new matters that were not before the Court when the orders were made in August 2006 and that were not available to be put before the Court when the orders were made in August 2006 that means these orders should no longer operate, then her option is either to continue to comply with the orders, or to make an application for the orders to be changed while complying with the orders in the meantime unless and until an order is made changing the orders made in August 2006.
The next matter is in relation to make up time. Bearing in mind what I have already said in relation to the lost time that these children have had with their father, in my view it is entirely appropriate that the time lost as a result of the proven contravention be made up. Because of the duration of that time it effectively can only be made up at one time during the summer school vacation. That in fact will be the next vacation period in any event when any time could be made up. In my view there is nothing to indicate other than it would be in these children's best interests that they make up at least that much time that they have lost with their father. I therefore propose to make the order as sought for the lost time and also the option of the mother spending some time with the children from 26 to 27 December and the provision in relation to telephone communication each day.
The final matter sought under s.70NEB is $1598 in compensation. This is under sub-s.(1)(e) of s.70NEB, a relatively new provision. The amount sought is said to be $598 for lost air fares for the children to travel to the father on 21 December 2006 when the mother in fact withheld the children, and $200 on each of what are said to be five attendances at court in connection with these proceedings. The dates of those attendances are said to be 14 and 28 September 2007 and 8, 14 and 23 October 2007.
The matter was certainly before the Court on 14 September, in relation to another application by the father which was then dismissed. I can see no record of the matter having been before the Court on 28 September. The matter was before the Court on 8 October and the Court on that occasion made orders designed to carry into effect the orders of August 2006 for half of the October school holidays. Again that was not in relation to the contravention proceedings I am now dealing with. I have no record of the matter having been before the Court on 14 October. 23 October refers to today.
Therefore some of the dates for which the $200 is claimed are not dates the matter was before the Court in relation to the contravention proceedings. But even if they were, these are not expenses covered by s.70NEB. They are not costs or expenses incurred or wasted as a result of the contravention of the court order. They are costs or expenses in relation to the contravention proceedings, and in my view they are governed by s.117 of the Act, not by s.70NEB(1)(e).
The expense in relation to air fares is a matter properly covered by s.70NEB(1)(e) and the Court clearly has a discretion to make an order against the person who has committed a contravention requiring them to compensate a person who did not spend time with the children or have them live with them as a result of the contravention, where those costs have been wasted or thrown away because of the contravention. The air fares clearly fall within that category but again the power is discretionary. It is not an automatic order.
In opposition to such an order being made it is put that the mother is in impecunious circumstances. It is said that she is in receipt of a part pension and it is further said that she works part time. Her income is not disclosed. Statements in relation to a Credit Union account standing in the mother's name are before the Court which seem to cover the period from 1 August 2007 till 30 September 2007. That shows a credit balance which appears to have varied between a maximum of a little under $2300 down to a minimum of under $100. The most recent credit balance seems to be $435.57. Despite my affording an opportunity to do so, the mother did not seek to put any other evidence before the Court in relation to her financial circumstances or any other matter relevant to the orders that I should make consequent upon my finding.
There is thus no evidence that the mother has no other bank accounts. I have no evidence as to her property. I have no evidence as to her liabilities. I have no evidence as to her income. I have no evidence as to her expenditure. I do have what appears to be an uncontroverted statement at the Bar table that she is in receipt of Legal Aid for these proceedings, as in fact is the father. In those circumstances the information that I have in relation to the mother's financial circumstances is very limited.
Certainly I take account of the fact that the mother has the care of these children and it would appear from the evidence in her case that the children, or certainly one of them, have particular needs. I am not referring to the individual and group counselling that the children have been having that has led to the advice to the mother that she should breach court orders. Again the amount of that or the frequency of it is not in evidence before me. It is not the case, even if I accept that the mother is certainly in somewhat straitened financial circumstances, that that means that the Court ought make no order of a monetary nature against her.
In circumstances where there is a suggestion that the mother would be hard pressed to meet the full payment but she seeks to put only selective information before the Court as to her financial circumstances, in my view where the order is otherwise justified, as it clearly is in this case, the Court should make the order but give the mother a reasonably generous time in which to pay. I will therefore make the order in the amount sought and give her three months to pay.
In relation to the final matter, the question of costs, this as I say is governed by s.117 and the considerations relevant to a costs order are set out in sub-s.(2A). The starting proposition is that each party bears his or her own costs, and the party seeking the costs order bears the onus of establishing reasons why the order should be made. The costs order is opposed.
In support of the order that the father seeks it is put, as I understand it, that he is in receipt of Legal Aid. No other matter is put to the Court. However, I cannot ignore the fact, even though it was not explicitly adverted to, that these are enforcement proceedings, and that is a relevant consideration in relation to costs. Further, I take account of the fact that the mother is in receipt of Legal Aid and the matters, limited though they may be, in relation to her financial circumstances that I have already adverted to.
Prima facie where proceedings are brought successfully, as they were in this case, and where the respondent has been wholly unsuccessful, as she was in this case, and where the proceedings arise as a result of a contravention of a court order and therefore are enforcement in nature, there is a strong prima facie argument for the costs order. The only matter raised in this case that could argue against the order is the mother's financial circumstances. Again, for the reasons that I have already given in relation to the compensation the father sought, so too the limited evidence and information about the mother's financial circumstances is not, in my view, sufficient to argue against the costs order. It is, however, sufficient to argue in favour of a generous period of time in which to pay and I will give the mother 12 months.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Halligan FM
Associate: Deanne Bush
Date: 5 December 2007
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