Naima and Farina

[2019] FamCA 592

FAMILY COURT OF AUSTRALIA

NAIMA & FARINA [2019] FamCA 592

FAMILY LAW – CONTRAVENTION – Where the Applicant has filed two Applications for Contravention alleging five contraventions of final parenting consent orders – Where three counts were struck out at the hearing and two counts remain – Where the Applicant has not discharged the onus of establishing that the Respondent intentionally failed to comply with the Order or made no reasonable attempt to comply with the Order in relation to one of the remaining counts – Where the Respondent is found to have contravened the Order without reasonable excuse in relation to the second count – Where make-up time is ordered and the parenting consent orders are varied.

Family Law Act 1975 (Cth)

Banks & Banks (2015) FLC 93-637

APPLICANT: Mr Naima

RESPONDENT: Mr Farina

FILE NUMBER: BRC 9358 of 2014

DATE DELIVERED: 23 August 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 19 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ness

SOLICITOR FOR THE APPLICANT: Schoenmaker Legal

COUNSEL FOR THE RESPONDENT: Mr Galloway

SOLICITOR FOR THE RESPONDENT: Maguire Barnes Family Lawyers

Orders

IT IS ORDERED THAT

1. Count 3 of the Application for Contravention filed 28 June 2018 is dismissed.

2. Pursuant to s 70NEB(1)(b) of the Family Law Act 1975 (Cth), the child E, born … 2009, shall spend one period of two hours with her father before 31 December 2019 on the following terms:

   (a)the father shall give the mother no less than 30 days’ notice in writing of the date on which, the time during which and the place at which E shall spend this time with him; and

   (b)the mother shall ensure that E attends at the place or location identified by the father in the notice referred to in Order (2)(a) and shall also ensure that either she or her nominee affect changeover at the starting time nominated by the father and then immediately depart the location; and

   (c)Ms S will collect E from the mother or her nominee at the start of the time nominated by the father pursuant to Order (2)(a) and shall return her to that place at the conclusion of such time; and

   (d)the father is restrained from participating in the changeovers necessitated by the terms of this Order and shall not be present during the same.

3. Pursuant to s 70NBA of the Family Law Act 1975 (Cth), the Order made by consent on 6 December 2017 is varied to include an order in the following terms:

   “(1)The mother shall ensure that, once she or her nominated nominee affect changeover, she or her nominee will immediately depart the location at which changeover occurred.”

IT IS NOTED THAT THE COURT FOUND THAT

1. The mother, without reasonable excuse, contravened the Order made on 6 December 2017 by failing to ensure that changeover occurred on 18 May 2018.

IT IS ALSO NOTED THAT

1. The time ordered in Order (2) above is to be additional to the time E is to spend with her father pursuant to the terms of the Order made by consent on 6 December 2017.

AND IT IS FURTHER ORDERED THAT

1. In the event that any party seeks an order that the other party pay his or her costs:

   (a)if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this order; and

   (b)any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and

   (c)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

   (d)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

   and any such application for costs shall be considered in Chambers.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Naima & Farina has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9358 of 2014

Mr Naima

Applicant

And

Mr Farina

Respondent

REASONS FOR JUDGMENT

1. There are two Applications for Contravention which require determination, both filed 28 June 2018. Whilst they collectively contain five individual allegations of contravention, three of these counts were struck out at the hearing of the matter.

2. The Reasons which follow deal with the remaining allegations of contravention, both of which relate to the order made by consent on 6 December 2017.

3. By way of short summary, the first remaining count to be considered is that, in contravention of order 9(d)(i) of the orders made on 6 December 2017, the mother failed to ensure that changeover occurred at the place nominated by Mr Naima on 18 May 2018 because she arranged for E’s maternal grandfather to accompany the child to the visit and remain there; the second remaining count is that, on the same day and in contravention of order 9(d) of the orders made on 6 December 2017, Ms Farina failed to ensure that E spent two hours with her father because she arranged for E’s maternal grandfather to accompany the child and remove her from the venue after approximately 20 minutes of her entering the same.

The relevant terms of the December 2017 order

1. Orders 9(d) and 9(d)(i) of the 6 December 2017 order are as follows:

   9.The Child shall spend time with the Father, unless otherwise agreed in writing, as follows:

   …

   (d )the Father may choose, by notice in writing to the Mother, not less than two (2) weeks before the intended time, for the Child to spend time with him for Religious Holy Day 1, Religious Holy Day 2 and Religious Holy Day 3 and, in such circumstances, the time shall be for two (2) hours and, in 2018, shall occur on 16 May 2018, 14 June 2018 and 21 August 2018 respectively, with:

   (i)the Mother to ensure that the Child attends at the place or location identified by the Father as being a place of celebration on those events and changeover occur at that place; or

   …

2. Ms Farina will have contravened the relevant order of the December 2017 order if, and only if, she intentionally failed to comply with that order or made no reasonable attempt to comply with it.[1] It is uncontroversial that, as the Applicant, Mr Naima bears the onus of proof to establish that Ms Farina intentionally failed to comply, or made no reasonable attempt to comply, with the relevant particularised orders.

   [1] Section 70NAC Family Law Act 1975 (Cth).

3. If Ms Farina is found to have contravened the order, it is then necessary to consider whether she had a reasonable excuse for so doing. It is uncontroversial that, insofar as Ms Farina contends that she had a reasonable excuse for any contravention, she is the person who bears the onus of proof in establishing the same. In this context, the circumstances in which she may be found to have a reasonable excuse for contravening a parenting order are not limited to the circumstances prescribed in ss 70NAE(2), (4), (5), (6) and (7) of the Family Law Act 1975 (Cth) (“the Act”).[2]  

   [2] Section 70NAE(1) Family Law Act 1975 (Cth).

What happened on 18 May 2018?

1. Ms Farina’s evidence is that, prior to 18 May 2018, she had had discussions with her father, Mr X, explaining to him the purpose of him attending on that occasion. She said that it was “our understanding” (hers and Mr X’s) that Mr X was to be the supervisor of the visit; she also said that she would have relayed to him that he was to be the supervisor. Ms Farina said she did not take any steps to prepare Mr X for his supervisory role on 18 May 2018, as he had done that numerous times before.

2. Ms Farina’s evidence is supported in one sense by that given by Ms S. She said that Mr X told her that the orders allowed him to attend and that he would not leave E; she said he told her that that was what he had been told and what he would do; she also said that he later told her that the orders said he had to supervise the visit and that he would never leave E by herself.

3. In complete contrast to the evidence given by his daughter, both in her affidavit and during cross-examination about this issue, Mr X’s oral evidence when cross-examined was to the effect that he had not been present as a supervisor during the 18 May 2018 visit: he said he was not appointed to supervise the visit; when it was put to him that he had previously been the supervisor of E’s time with her father, Mr X said he did not think he was ever officially appointed supervisor. His evidence was to the effect that he had accompanied E to contact visits but never saw himself as supervisor of the same – he was there simply to accompany E. When asked whether he was suggesting that no one ever explained to him that he was the supervisor on previous occasions, Mr X said he did not think anyone had ever mentioned it; he certainly did not recall anyone officially appointing him as supervisor and did not recall having been told that he was or that he had the duties associated with the same explained to him.

4. In complete contrast to the tenor of the evidence given by E’s mother, Mr X said that his intention on 18 May 2018 was to take E to the location, drop her off, leave and return to collect her at 7.00 pm. His evidence, as I appreciated it, was to the effect that he only accompanied E into the restaurant where the visit was to occur because she told him that she would feel more comfortable if he was there. He accepted that he initially refused the suggestion made by either the father or his partner (Ms S) that E come into their care when everyone was present: he said that he did not agree with their request because it was made about 10 minutes before E’s visit with her father was to start; instead, he told them that he would bring her to the agreed location; his account was, in essence, that, after he told E that he would go with her to the place where she was to spend time with her father, she agreed and told him that she wanted him to be there whilst she saw her father.

5. I note that Mr X corroborated the father’s evidence to the effect that the father told him (Mr X) that he should not even be present during E’s time with him and that he should just do the changeover and leave. He also accepted that the father told him that he (Mr X) was not required to be there that day; that he should leave and come back at 7.00 pm and that he should let the visit occur without him being there.

6. I think it highly unlikely that, as Mr X contends, the father asked him to take E inside the restaurant; I arrive at this conclusion because it is clear that the father and/or Ms S had wanted the changeover to occur prior to this and at a place a little distant from the restaurant where the visit was to occur (albeit it in the carpark for the venue). Given this, I think it highly unlikely that the father would have asked Mr X – whom he clearly knows does not like or trust him – to take E into the restaurant.

7. Further, given the mother’s evidence about what she alleged was a shared understanding between herself and Mr X that he was to supervise this visit and the evidence given by Ms S about Mr X’s comments to her (which evidence I accept), I do not accept Mr X’s evidence that he had no prior intention of attending and remaining inside the restaurant with E.

8. I think it much more likely than not that, in giving the evidence that he did during cross-examination, Mr X simply decided to say that he was not supervising the visit; I think he attempted to explain his continued presence in the restaurant during the entirety of E’s time with her father on this occasion as being that he was “simply there” – not as a supervisor of the same, but as a citizen.

9. I think it highly likely that Mr X adopted this position because he may well have concluded that his daughter’s suggestion that they both mistakenly believed that supervision of this visit was required under the terms of the order – when a reading of the same makes it clear, I think, that it was not required – was going to prove hard to advance successfully: I think it highly likely that, without consultation with his daughter, he simply decided to advance what he thought was the best way to attempt to defeat the father’s assertions of contravention; I think it more likely than not that it was in this context that he said he had not participated in the process of E spending time with her father that day with the intention of supervising the visits and, in essence, only did what he did and remained when he did because E asked him to.

10. Given this, for the purpose of this Application, where the evidence of the father and Ms S differs from that given by Mr X, I prefer their evidence to his. Further, I consider that the mother’s credit is also impeached by the evidence her father gave – his evidence completely contradicts her assertions about their asserted shared misunderstanding about the terms of the order vis-à-vis this visit and, to me, casts serious doubt over the actual existence of the asserted shared misunderstanding.

11. I also note that Mr X said that he understood that, after he entered the restaurant with E, his presence was no longer required (although I have already expressed my conclusion that his presence was not required prior to that); he accepted that, despite knowing this, he did not leave – instead, he went to a nearby table and sat down. He accepted that the table at which he sat was across a passageway, about two metres away from the table at which E was seated; he accepted that he could see E from where he was sitting.

12. I do not accept his denial that he was not keeping an eye on things; rather, I consider that he was, in fact, acting as a supervisor of the interaction between E and her father on that visit; I consider his evidence that he was not there as a supervisor to be nothing more than an attempt on his part to refute the father’s allegation that, by having him supervise E’s time with him on this occasion, the mother acted contrary to the relevant term of the December 2017 order.

13. Having rejected Mr X’s denial that he was keeping an eye on E’s interactions with her father, I consider it completely disingenuous for him to assert, as he did, that despite sitting where he was, he made a conscious effort to concentrate on his phone and did not want to interfere or influence anything going on at the table where E was seated.

14. I also note that, when asked about his purpose in sitting as he had chosen to in relation to where E was seated, he said, in effect, that it was to remain so he was in E’s view. Given his own evidence about his proximity to where E was seated and his purpose in sitting so he was in her view, his other evidence to the effect that, having understood that his presence was no longer required, he thought he would keep out of the way and hoped his presence would not be an influence on things is, frankly, unbelievable.

15. Given my conclusion about the deficits in Mr X’s veracity, I accept the account given by Ms S of his actions in removing E from the restaurant prior to the expiration of the two hour visit which was to have occurred pursuant to the terms of the December 2017 consent order. That is, I accept her evidence that, at a time during the visit when the father was absent from the table, Mr X approached it and asked E if she wanted to go and told her words to the effect of “let’s go”. I reject Mr X’s evidence that it was Ms S who approached him to tell him that E wanted to leave.

“Count 3” of the Application for Contravention filed 28 June 2018: E did not spend two hours with her father

1. As noted, Mr Naima alleges that, on 18 May 2018, Ms Farina contravened order 9(d) of the order made by consent on 6 December 2017 by not permitting him to spend the two hours for Religious Holy Day 1 with E in that she arranged for the maternal grandfather, Mr X, to accompany E and he removed her from the venue after approximately 20 minutes.

2. Given my acceptance of Ms S’ evidence in preference to that given by Mr X, I am persuaded that he removed E from the venue prior to the expiration of the two hours required by the terms of the December 2017 order.

3. The real issue, though, is whether Ms Farina can be found to have contravened the order because of the actions Mr X took in her absence and, as I have found, whilst he was supervising E’s time with her father.

4. As a person contravenes an order if and only if that person (then bound by the order) intentionally fails to comply with it or makes no reasonable attempt to comply with it, I am not persuaded on the evidence before me that Ms Farina either intentionally failed to comply with the relevant term of the order or made no reasonable attempt to comply with the same. I arrive at this conclusion on the basis of Mr X’s approach to giving his evidence and providing an account which contradicted the account provided by Ms Farina: given his clearly independent actions in doing so, I consider that I cannot exclude the possibility that he simply determined himself to remove E from the visit prior to its expiration. Whilst others may disagree, I am not persuaded on the evidence that, in acting as he did to remove E before the end of the two hour period, Mr X was acting on Ms Farina’s instructions.

5. Consequently, I am not persuaded that Ms Farina intentionally failed to comply with the order or made no reasonable attempt to comply with it and I dismiss the allegation I have identified as Count 3 of the Application for Contravention. 

“Count 4” of the Application for Contravention filed 28 June 2018: the asserted failure to do a changeover

1. As noted, Mr Naima alleges that, on 18 May 2018, Ms Farina contravened order 9(d)(i) of the order made by consent on 6 December 2017 by failing to ensure that E transitioned into his care: that is, an allegation of a failure to do a changeover.

2. As noted earlier, Ms Farina said her understanding of the December 2017 order was that there was always to be a supervisor of E’s visits with her father; in contrast, Mr Naima’s evidence is that time pursuant to order 9(d)(i) of the December 2017 order excludes the requirement of supervision because the word “changeover” is used.

3. I consider it clear that, whilst the balance of the time E is to spend with her father pursuant to the December 2017 order is to be supervised, order 9(d) of the December 2017 order does not refer to supervision of E’s time with her father on the specified religious occasions: that is, there is no mention, in respect of those occasions, of an organisation by which supervision is to be provided or the nomination of a person to undertake that role.

4. Given that I accept that Ms Farina acted in accordance with her erroneous view of the terms of the December 2017 order and, in essence, ensured that her father was present during E’s time with her father and that I have rejected Mr X’s attempts to explain his continued presence during this visit, I am persuaded on the balance of probabilities[3] that Ms Farina intentionally failed to comply with this order in the manner asserted or made no reasonable attempt to comply with this aspect of the order.[4]

   [3] Section 70NAF(1) Family Law Act 1975 (Cth).

   [4] Section 70NAC Family Law Act 1975 (Cth).

1. Accordingly, I am persuaded that she contravened order 9(d)(i) of the December 2017 order by ensuring that the maternal grandfather accompanied E during her time with Mr Naima and did not undertake the changeover of her into her father’s care as required by that order.

2. I am not persuaded to the requisite standard[5] that Ms Farina had a reasonable excuse for contravening the December 2017 order in the manner that I have found she did. Whilst the term may not be one with which she subsequently agreed, I consider it clear that the order does not impose a requirement for supervision of the visits of the type under consideration. I am satisfied that Ms Farina contravened this order on this occasion without reasonable excuse.

   [5] Section 70NAF(2) Family Law Act 1975 (Cth).

Consideration of orders

1. Mr Ness, who appeared on behalf of Mr Naima, sought an order that another two hour visit between E and her father take place.

2. The power to make an order for such compensatory time is clear.[6] Whilst I retain residual concerns about the possibility that requiring E to spend a further compensatory two hour period of time with her father might be attended by a repetition of the difficulties alluded to in the affidavit material relied on by each of the parents in this Application, I have ultimately determined that it is in E’s best interests for her to be afforded the opportunity to spend an additional two hour period of time with him.[7] I consider that the terms of the orders set out at the commencement of these Reasons will accord the mother sufficient notice to ensure that any disruption to E’s day-to-day routine is minimised.

   [6] Sections 70NEB(1)(b), (4) Family Law Act 1975 (Cth).

   [7] Section 70NEB(5) Family Law Act 1975 (Cth).

3. The Court is also empowered to make an order varying the December 2017 order.[8] In doing so, I must regard E’s best interests as the paramount consideration. Whilst the matters to which regard must be had in determining what is in E’s best interests are prescribed by s 60CC of the Act, the requirement to “consider” each of these matters, where relevant, involves taking note of them or giving heed to them or thinking over or reflecting on them; it does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[9] Consequently, any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in E’s best interests.

   [8] Sections 70NBA(1), (3) Family Law Act 1975 (Cth).

   [9] Banks & Banks (2015) FLC 93-637: whilst said in the context of a consideration of interim proceedings, there is no reason to think that the underlying principle does not apply to the final disposition of proceedings.

4. Given the circumstances discussed above, I consider that E’s best interests will be met by varying the December 2017 order to include a clear term that Ms Farina, or whomever attends at changeover on her behalf, departs that venue as soon as changeover is affected. I am hopeful that such an order will minimise the potential for a repeat of the events discussed above and thereby minimise the possibility that E is again placed in what I consider likely to have been a difficult and uncomfortable situation.

5. Given that Counsel for each parent indicated an intention to seek an order for costs if their respective clients were successful in their respective approaches to the application, the orders will permit both parents to be heard about the same via the provision and exchange of written submissions; in order to mitigate further costs, these will then be considered in Chambers.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 23 August 2019.

Associate: 

Date:              23 August 2019