NELSON & LOWRIE
[2015] FCCA 1553
•11 June 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NELSON & LOWRIE | [2015] FCCA 1553 |
| Catchwords: FAMILY LAW – Children – parenting orders – contravention of parenting orders – reasonable excuse – whether reasonable excuse established – where one count dismissed – where there is apparent confusion about an order providing for the parties’ children to spend time with each parent during school holidays – where parties directed to attend a Child Dispute Conference with a Family Consultant – application adjourned to allow parties to apply for a further parenting order that varies the primary order. |
| Legislation: Family Law Act 1975 (Cth), ss.70NAC, 70NAF, 70NEA, 70NEB, 70NEC |
| Applicant: | MS NELSON |
| Respondent: | MR LOWRIE |
| File Number: | SYC 5013 of 2008 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 2 December 2014 |
| Date of Last Submission: | 2 December 2014 |
| Delivered at: | Sydney |
| Delivered on: | 11 June 2015 |
REPRESENTATION
| Applicant: | In person |
| Respondent: | In person |
ORDERS
The Respondent did, on 20 April 2014, without reasonable excuse, contravene Order (6)(ii) made on 28 June 2013.
Count 2 of the Application – Contravention filed on 12 June 2014 alleging a contravention by the Respondent father on 29 May 2014 of Order 17 made on 28 June 2013 is dismissed.
The Applicant and the Respondent are directed to attend a Child Dispute Conference with a Family Consultant under the provisions of section 11F of the Family Law Act 1975. In accordance with section 11C of the said Act the Conference is to be reportable.
The Application is adjourned under the provisions of paragraph 70NEB(1)(c) of the Family Law Act 1975 to allow either or both of the Applicant and the Respondent to apply for a further parenting order that discharges, varies or suspends the primary order.
The Application is adjourned to 16 July 2015 for further mention.
IT IS NOTED that publication of this judgment under the pseudonym Nelson & Lowrie is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 5013 of 2008
| MS NELSON |
Applicant
And
| MR LOWRIE |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the mother of the parties’ two children to deal with the father for contravention of the Orders made on 28 June 2013. The father denies the allegation and says that, in the alternative, he has a reasonable excuse for the contraventions of the Orders.
The Contraventions Alleged
The Applicant mother claims that the Respondent father contravened the Orders made by this Court on 28 June 2013 in April 2014 and on 29 May 2014.
The Orders claimed to have been contravened are Orders (6)(a)(ii) and (17).
Order (6)(a)(ii) provides that the children will live with the parties as follows:
(a) For one half of each of the New South Wales Winter, Spring and Autumn school holidays as agreed and in the absence of agreement:
…
(ii) With the father in the first half and the mother in the second half of the school holiday period in 2014 and all even numbered years from then on.
The mother claims in her affidavit of 11 June 2014 that the father did not permit the children to spend time with her during the second half of the school holidays from Monday 21 April 2014. She deposed that when she sent him an SMS message saying that she would be at the (omitted) McDonald's to pick up the children at 9:00 am on 21 April 2014, he replied:
“Order yourself breakfast. We will not be there until 28/04”.[1]
[1] Affidavit of Ms Nelson 11.6.2014 at paragraph [15]
The children were not returned to her care on 21 April.
Order (17) provides:
The parties must keep each other informed of their current residential address, landline and mobile telephone numbers and email address and advise of any changes within seven (7) days of that change occurring.
The mother deposed in her affidavit that the parties’ daughter informed her on 30 May 2014 that the father had moved to a new house on 29 May, the day before. However, as at 11 June, the date of swearing of her affidavit, the Respondent had not communicated this change of address to her.
The Respondent father filed an affidavit on 22 November 2014 in which he denied the contraventions. His response to the claim that he did not make the children available to spend time with the mother during the school holiday period was that, as 2014 was an even numbered year, the Order provided that the children would spend time with him for the first half of the school holiday period and then with the mother for the second half.
He went on to depose that the mother collected the children from school and childcare on Friday 11 April 2014, which should have been the start of his school holiday time with them. However, the mother disagreed and did not make the children available until Monday 14 April. He stated that he believed that the mother had effectively reversed the school holiday arrangements and was prepared for the children to remain with their mother for the first week but was surprised when she contacted him on Sunday 13 April to ask him to collect the children from her the following day, which he did.
It is the father’s belief that the mother misinterpreted the Order as to when the school holidays commence.
The father deposed in respect of the second count that he had composed an email on 31 May 2014, when he handed back the keys to his earlier address, to inform the Applicant of the change of address. He said that he sent the email by means of his mobile phone.[2]
[2] Affidavit of Mr Lowrie 22.11.2014 at [18]-[19]
The Respondent deposed that he had no way of knowing if an email from his phone had been read or not and was surprised to receive an email from the mother on or around 12 June asking him to SMS the address of his new home. He went on to depose that he checked the email on his phone to see why the Applicant had not received it:
…to discover the email was in the outbox folder of my email program.[3]
[3] Ibid at [22]
He stated that he immediately re-sent the email and sent the applicant a further email, saying:
“Oh! I emailed you. I just sent it again, check your email”.
The father cross-examined the mother on her evidence. Both parties made oral submissions to the Court.
Contravention of Parenting Orders – Standard of Proof
Division 13A of the Family Law Act 1975 (Cth) contains the law to be applied in these circumstances. Subsection 70NAF(1) provides:
Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
The first school term in 2014 ended on Friday 11 April and the second term commenced on Monday 28 April, according to the NSW Department of Education and Communities Website. I am taking note of this Website under the provisions of s.144 of the Evidence Act 1995 (Cth), as common knowledge.
Thus, it is clear that the Respondent is correct in his assertion that the children should have been with him for the first half of the school holidays, which I consider would be deemed to have commenced on Saturday 12 April. The children should have been with their mother for the second half of the holidays, being the second week. It is not a reasonable excuse for the father to claim that he believed that the mother was reversing the arrangements for the school holidays.
I am satisfied that the contravention has been made out and the Respondent has not established a reasonable excuse for the contravention.
However, I am not satisfied that the Applicant has made out a case on the balance or probabilities in respect of the second count, claiming that the Respondent failed to notify her of his new address within seven days. According to the Respondent’s evidence, he did just that. There is no explanation for the fact that the mother claimed that she did not receive the email.
The mother needs to be able to show that the father either intentionally failed to comply with the order or made no reasonable attempt to comply with the order (s.70NAC). On the father’s evidence, he has at the very least made a reasonable attempt to comply with the Order.
The count is also defective, in that it alleges a contravention having taken place on 29 May 2014. The evidence is that the Respondent moved out of his former address on 29 May 2014 and handed back his keys on 31 May. Even if one were to take the earlier date, being 29 May, the Order provided that the Respondent had to inform the Applicant within seven days of his change of address. Thus, the Respondent until 5 June to inform the Applicant of his change of address. He could not have contravened the Order on 29 May as he was still within time.
This count will be dismissed.
An Appropriate Sanction
Section 70NEA of the Family Law Act 1975 provides that where the Court is satisfied that a person has committed a contravention of a primary order without a reasonable excuse and no court has previously imposed a sanction in respect of an earlier contravention of the primary order, then the court may deal with the matter under Subdivision E of Division 13A, unless the Court is satisfied that the person has behaved in a way that showed serious disregard for his or her obligations under the primary order.
I am not aware that any court has previously made an order imposing a sanction or taken any action in respect of a contravention of the primary Order. I am also not satisfied that the Respondent has behaved in a way that showed a serious disregard for his obligations under the primary order.
Consequently, I propose to exercise the powers given to the Court under subsection 70NEB(1) of the Family Law Act 1975, which provides that the Court may:
a)direct the person to attend a post-separation program;
b)make a further parenting order that compensates the other person for time they did not spend with the child;
c)adjourn the proceedings to allow a party to apply for a further parenting order;
d)require the person to enter into a bond under section 70NEC;
e)make an order requiring the Respondent to compensate the Applicant for reasonably incurred expenses; and
f)make an order for legal costs.
I have considered all of the above matters. I am not satisfied that a post-separation parenting program will assist the parties. It would be possible to make a further parenting order to compensate the mother for time she did not spend with the children over the school holidays, but on the Respondent’s evidence it appears that she actually spent time with the children at the beginning of the school holidays when they should have been with their father. This is not a case that warrants the imposition of a bond under section 70NEFC of the Act.
The mother does not claim that she incurred any expenses because of the contravention, nor was she legally represented. The father was likewise unrepresented.
It appears to me that the problem between the parties is the difference in their interpretation of Order (6)(a) as to the meaning of the school holidays. It would seem to me that the order needs to be re-drafted to make it clearer to the parties. I propose to make an order under s.70NEB(1)(c), adjourning the proceedings to allow one of the parties to apply for a further parenting order that discharges, varies or suspends Order (6)(a).
The father told the Court at the hearing that he offered mediation to the mother before these proceedings started. Clearly, she did not take up the offer. He said that he had asked for mediation and would like the parties to attend mediation.
This proposal appears to me to be a very sensible approach, so that the parties may discuss their difficulties about school holiday time with the children and arrive at an arrangement that suits both of them and is easy to understand. I propose to order that the parties should attend a Child Dispute Conference with a Family Consultant of this Registry and adjourn the matter to allow this to take place.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 11 June 2015
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