NIELSEN & SPRINGER

[2020] FamCA 617

FAMILY COURT OF AUSTRALIA

NIELSEN & SPRINGER [2020] FamCA 617

FAMILY LAW – ORDERS – Contravention – Where final orders were made – Where the father alleges the mother has breached the orders – Where the mother admits the breaches but with reasonable excuse – Where the mother unilaterally relocated the children’s residence to northern New South Wales – Where the father was subsequently unable to spend time with the children as per final orders – Whether the mother had a reasonable excuse – Where the mother believed the contravention was necessary to protect the health or safety of the children – Where the mother is found to have contravened the orders without reasonable excuse. 

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NBA, 70NEB
Family Law Rules 2004 (Cth) r 21.08

Childers & Leslie (2008) FLC 93-356
Gaunt & Gaunt (1978) FLC 90-468
Jones v Dunkel (1959) 101 CLR 298
Rice & Asplund (1979) FLC 90-725

APPLICANT: Mr Nielsen

RESPONDENT: Ms Springer

FILE NUMBER: ADC 1483 of 2017

DATE DELIVERED: 28 July 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 9 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: CG Family Law

COUNSEL FOR THE RESPONDENT: Litigant in person

SOLICITOR FOR THE RESPONDENT:

That upon the finding that counts 1 (paras 6 and 7) 2 (paras 8 and 9), 3 (paras 10 and 11) , 4 (paras 12 and 13) , 5 (paras 14 and 15), 6 (paras 16 and 17), 7 (paras 18 and 19), 8 (paras 20 and 21), 10 (paras 24 and 25) and 11 (paras 26 and 27) of the Application for Contravention filed 10 June 2020 are proven

Orders

1. That the Application for Contravention is set down for the sentencing of the mother on 30 July 2020 at 3pm.

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 Nielsen & Springer 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 ADELAIDE

FILE NUMBER: ADC 1483 of 2017

Mr Nielsen

Applicant

And

Ms Springer

Respondent

REASONS FOR JUDGMENT

Introduction  

1. Mr Nielsen (“the father”) and Ms Springer (“the mother”) have been engaged in ongoing conflict concerning the parenting arrangements for B born … 2008, C born … 2010 and D born … 2012 (collectively “the children”).

2. Following a contested hearing in 2018 the following orders were made:-

   (1)That the wife have the sole parental responsibility for B born … 2009, C born … 2020 and D born … 2012 (collectively “the children”).

   (2)That the children live with the wife;

   (3)That the children spend time with the husband as follows:-

   (a)Each alternate weekend from the conclusion of school on Thursday to the commencement of school on the following Monday and if Monday is a public holiday or pupil free day THEN the children spend time with the husband to the commencement of school on Tuesday;

   (b)For one half of each of the short end of term and Christmas school holidays at times to be agreed between the parties but failing agreement for the first half of the school holiday period in 2019 and in each alternate year thereafter and for the second half of the school holiday period in 2020 and in each alternate year thereafter;

   (c)For such other times as the parties may agree.

   (4)That the children spend time with the parties as follows:-

   (a)On Mother’s Day and Father’s Day in each year:-

   (i)Between 5.00 pm on the Saturday preceding Mother’s Day until 5.00 pm on Mother’s Day the children will spend time with the wife;

   (ii)Between 5.00 pm on the Saturday preceding Father’s Day until 5.00 pm on Father’s Day the children will spend time with the husband;

   (b)On the children’s birthday each year:-

   (i)If the child’s birthday falls on a day that is not a school day and the husband would not otherwise be spending time with the child THEN the children will spend time with the husband from 2.00 pm until 7.00 pm;

   (ii)If the child’s birthday falls on a day that is not a school day and the husband has the care of the child THEN the children will spend time with the wife from 2.00 pm until 7.00 pm;

   (iii)If the child’s birthday falls on a school day and the husband would not otherwise have the care of the child THEN the children will spend time with the husband from the conclusion of school until 6.30pm;

   (iv)If the child’s birthday falls on a school day and the wife would not otherwise have the care of the child THEN the children will spend time with the wife from the conclusion of school until 6.30 pm.

   ….

   (12)That each party shall keep the other advised of their current residential address, email address and contact telephone number and advise the other of any changes within forty eight (48) hours of such change occurring.

   …

3. On 10 June 2020 the father filed an amended Application for Contravention of orders which alleged 11 counts of contravention in respect of the orders made on 17 September 2019 but summarised as follows:-

   (a)Counts 1, 2, 3, 4, 6 and 7 allege a contravention of order 3.

   (b)Count 8 alleges a contravention of order 4.

   (c)Counts 9, 10 and 11 allege a contravention of order 12.

4. At the commencement of the hearing a submission was made that count 9 should be dismissed.  It is alleged that on 12 September 2019 the mother contravened order 12 in that she did not provide her new residential address to the father within 48 hours of any move.  Given that the alleged contravention took place prior to the final orders being made and as such could not be sustained, count 9 was dismissed.

5. It is alleged by the father that in respect of the remaining counts the mother did not comply with the relevant orders and in respect of each count she did so without reasonable cause or excuse.

The hearing

1. There is considerable procedural history that underpins the current contravention application.

2. Following the making of final orders on 17 September 2019, the father filed an Application in a Case on 26 September 2019 seeking that the mother comply with orders 3 and 12 of the final orders.

3. That application was followed up with the father filing an Initiating Application on 6 October 2019 seeking orders in respect of the return to the father of and the renewal of the children’s Country F passports.

4. On 27 March 2020 the father filed an Application in a Case again seeking orders that the mother comply with orders 3 and 12 of the final orders.  On 7 April 2020 the father filed an Application for Contravention which alleged that the mother did not comply with orders 3 and 12 of the final orders.  The contravention application was poorly drafted and the father elected not to proceed with it but rather to file an amended application.  On 9 April 2020 the mother filed an Application in a Case seeking the following further relevant orders:-

   3.That until further orders paragraphs 3, 4, 5, 6 and 10d of Orders made on the 17th September 2019 be suspended.

   4.That the Mother be at liberty to relocate with [the children] to live in northern New South Wales.

   5.Until further Order the children spend time in northern New South Wales and in Adelaide every six weeks and as times agreed between the parties or failing agreement as ordered by this Honourable Court.

   6.Until further Order the father pay one half of the costs of the children’s travel between northern New South Wales and Adelaide for the purpose of the children spending time with the father as provided for in paragraph 4.

   …

5. The mother’s application in a case was supported by her affidavit filed 7 April 2020.

6. The mother contends that since the making of the final orders she held concerns for the children’s safety, their health, the housing situation of the family, the family’s financial situation and her health.

7. She alleges that from August 2019 to the date of signing her affidavit the children were increasingly reluctant to spend time with the father due to his physical, psychological and emotional abuse of them.

8. The mother sets out the children’s opposition to spending time with their father and in particular considers the content of a voicemail from C to her on 2 February 2020 as a factor to support her decision to relocate the children.  The mother relies upon the voicemail transcribed by her at [7(j)] of her affidavit, in the following terms:-

   “It really hurts … I can’t catch my breath when B or Dad hurts me.  Yesterday Dad grabbed me by the throat and smacked me in the face and lifted me up and I was like choking, crying, trying to catch my breath (imitates the sound of choking and not being able to breathe).  And I tried to call you yesterday but I couldn’t.  And Mommy I really want to go (crying).  One day I won’t be able to catch my breath (coughing) and I’ll just die.  I think that’s going to happen.  I love you Mama.  And B has been hurting me this whole weekend.  I love you.  I don’t feel safe here.  Dad never tries to protect me and B doesn’t try to protect me from Dad.  No one is trying to protect me.  I don’t feel safe here. Bye (screaming in background)”.

9. The mother sets out her financial circumstances in terms of child support being paid by the father and Centrelink benefit, pension or allowance received by her in addition to an NDIS payment.

10. Following the final orders the mother’s fiancé Mr K remained living with her.  He became the lessor of the premises in which he, the mother and the children lived.

11. In February 2020 the mother advised the father that Mr K would be returning to northern New South Wales in circumstances where his lease had come to an end as would his work contract as a tradesperson.

12. There was some communication between the parties about arrangements for the children.  The mother advised the father that it was recommended the children, but in particular D who suffers from respiratory problems should not attend school.  The parties were not in agreement and on 25 March 2020 the father emailed the mother and advised that he did not have any annual leave days available to him and accordingly he would be sending the children to school.

13. The mother agreed that the children would stay with her.

14. The mother arranged for the children to speak to the father on 26 and 31 March 2020 and on 1 and 5 April 2020.

15. The following paragraphs from the mother’s affidavit are relevant to the proceedings:-

    54.On the 1^st of April the father and I spoke by phone.  The father did not seem to comprehend my situation.  I explained to the father that I could not maintain a home in Adelaide because of the increasing children’s costs and all of the issues I had raised over the last couple of months.  He replied: “Your financial problems are not my problems.  Let me know when I can see the kids over the holidays.”

    55.On the 2^nd of April I emailed the father to reiterate our conversation on the phone.  I said it was my intention to continue to follow the Court Orders and I would like to discuss how visitation would work.  I understood the father only had a few days of annual leave during the upcoming school holidays and that he was requesting a variation to the Orders and I was fine with that.

    56.I say that due to unforeseen and unexpected circumstances, I have had no other choice but to move to northern New South Wales with the children to live with my [fiancé] Mr K.  I felt it was in the children’s best interest to continue our consistent homelife together.  Given the uncertainty of my housing applications in Adelaide, the panic of the Corona virus, the uncertainty of R School remaining open, and the rapidly changing social restrictions, both Mr K and I felt the best scenario for the children was to continue living together and maintain stability for the children.

    57.I say that on the 4^th of April, I emailed the father to advise that the children and I were at Mr K’s home in northern New South Wales for the time being.  I say that given the father’s aggression towards the children and myself, I do not feel comfortable providing our residential address to the father.  My mobile phone number and mailing address remain the same.

16. On 16 June 2020 orders were made that adjourned paragraphs 3 to 7 of the mother’s Application in a Case and the Amended Application for Contravention to 19 June 2020 and then for hearing on 9 July 2020.

17. The mother confirmed that during the period of the adjournment she had sought “limited” legal advice but did not seek any further accommodation from the Court in respect of the contravention application nor the balance of her Application in a Case.  The mother did not seek to adjourn the proceedings to enable her to be represented.

The law

1. It is Div 13A of Pt VII of the Family Law Act 1975 (Cth) (“the Act”) that designates the legislative pathway concerning an Application for Contravention of orders made in respect of children.

2. Subdivisions C to F of Div 13A of Pt VII provides for the orders that are available to the Court that can be made in instances where:

   (a)       the contravention has been alleged but not established (sub-div C);

   (b)the contravention is established but reasonable excuse for the contravention is found (sub-div D);

   (c)the contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (sub-div E); and

   (d)the contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (sub-div F).

Section 70NAC – Meaning of “contravened” an order

1. Section 70NAC provides:

   A person is taken for the purposes of this division to have contravened an order under this Act affecting children if, and only if:

   (a)where the person is bound by the order – he or she has:

   (i)intentionally failed to comply with the order; or

   (ii)made no reasonable attempt to comply with the order…

Section 70NAE – Meaning of reasonable excuse for contravening an order

1. Section 70NAE provides:

   (1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in (2), (4), (5), (6) and (7).

   (2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)the court is satisfied that the respondent ought to be excused in respect of the contravention.

   (3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

   (4)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

   (a)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 child); and

   (b)the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (6)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

   (a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:

   (a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

Section 70NAF – Standard of proof

1. Section 70AF provides:

   (1)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.

   (2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

   (3)The court may only make an order under:

   (aa)   paragraph 70NEB(1)(da); or

   (ab)   paragraph 70NECA(3)(a); or

   (a)     paragraph 70NFB(2)(a), (d) or (e); or

   (b)     paragraph 70NFF(3)(a);

   if the court is satisfied beyond reasonable doubt that the grounds for making the order exists.

2. Section 70NEB sets out the manner in which a court should deal with a contravention in circumstances where it is considered “less serious”.

Section 70NEB – Powers of the court

1. Section 70NEB sets out the power of the court as follows:

   (1)If this Subdivision applies, the court may do any or all of the following:

   (a)       make an order directing;

   (i)     the person who committed the current contravention; or

   (ii)    that person and another specified person;

   to attend a post-separation parenting program;

   (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;

   (c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;

   (d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;

   (da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by a person under paragraph (d) – impose a fine not exceeding 10 penalty units on that person;

   (e)if:

   (i)the current contravention is a contravention of a parenting order in relation to a child; and

   (ii)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and

   (iii)the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;

   make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);

   (f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and

   (g)if the court makes no other orders in relation to the current contravention – order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.

1. Section 70NEC provides for the terms and conditions of a bond if a court requires a person to enter into a bond under s 70NEB(1)(d).

Rule 21.08 – Procedure for hearing

1. Rule 21.08 of the Family Law Rules 2004 (Cth) outlines the procedure for the hearing of an Application for Contravention:

   At the hearing of an application mentioned in items 1A, 2, 3 or 5 in Table 21.1, the court must:

   (a)inform the respondent of the allegation;

   (b)ask the respondent whether the respondent wishes to admit or deny the allegation;

   (c)hear any evidence supporting the allegation;

   (d)ask the respondent to state the response to the allegation;

   (e)hear any evidence for the respondent; and

   (f)determine the case.

2. The mother elected to admit the breaches as alleged in respect of Counts 1 to 8 inclusive and Counts 10 and 11 of the Application for Contravention filed 10 June 2020.  Whilst the mother admitted the breaches as alleged, she pleaded that she did so with reasonable excuse.

3. At the conclusion of the evidence the father submitted that any breach established on the evidence should be considered as a “serious disregard” of the mother’s obligation under the primary order.

Evidence and submissions

1. The father relies upon his affidavits filed 7 April 2020, 26 and 29 May 2020 as evidence in support of the alleged breaches of the final orders.

2. Given that the mother admits the breaches she relies on her affidavit of 16 April 2020 and her evidence to support a finding of reasonable excuse.

3. The father spent time with the children on 12 to 16 March 2020.

4. He made various attempts to arrange further time, however agreement could not be reached with the mother.  The following email exchanges between the parties provides a background to the mother’s decision to relocate the residence of the children to Northern New South Wales:-

   Subject: Re: clarification

   From: [the mother]

   Date:  23/01/2020, 7:47am

   To: [the father]

   Dear Mr Nielsen,

   I’m not putting any words in your mouth.  I’m simply trying to clarify what you said on the phone and in previous emails. 

   I’m unwell and seeking medical treatment outside of Adelaide. 

   I asked if the children could come with me (and still see you on the same schedule or other times that suit you).  You said no.

   I asked if you would care for them whilst I seek treatment.  You said no. 

   If you are now saying this is not what you said, could you please clarify?

   Subject: Re: clarification

   From: [the mother]

   Date: 23/01/2020, 8:05am

   To: [the father]

   The Court Orders do not require me to live in Adelaide, only for the children to see you on your requested or court-ordered schedule and this is what I have been trying to discuss with you since the 14^th of January. 

   I have looked into treatment in Adelaide and they do not offer similar treatment there.  It’s starting in Town L and may need to go to Country Z. 

   I reiterate that I need to know your willingness (or not) to care and pay for the children’s needs so that I can focus on my healing. 

   Ms Springer

   On Jan 23, 2020, at 8:21am, [the father] wrote:

   Again, below you are changing what I said before.  The clarification is that you need to follow court orders (very simple right?).  That means you live in Adelaide with the children.  Therefore I suggest you seek treatment in Adelaide and then we can discuss options for their care while you have your procedure here in Adelaide.

   Subject: Re: kids school/holidays

   From: [the mother]

   Date: 26/03/2020, 6:21pm

   To: [the father]

   I have no idea where you are coming from. 

   You have never missed a visitation nor have I blocked one.  These are unprecedented times and you are overreacting over a couple of days with the kids. 

   How is it good for them to get out of isolation, go to school and come back to me?  It makes no sense.  I explained the health concerns to you very clearly.  I’m not sure what you do not understand.

   Subject: Re: discussion

   From: [the mother]

   Date: 31/03/2020, 12:07 pm

   To: [the father]

   Mr K is in class tonight.  Stop harassing me.  there is not a pattern of contravention.  only one weekend.  You are being unreasonable. 

   I don’t understand why it’s so difficult to arrange a time to speak with me about everything.

   I really need to go.  I offered this afternoon.  I can talk tomorrow.  If that’s not soon enough for you…

   Ms Springer

   On Mar 31, 2020, at 12:30PM, [the father] wrote:

   I’m not going to be played around any further; every day you have another excuse.  I want to see my children;  I need to make my week and weekend arrangements in advance as well.  You can make it a priority to try to reach an agreement on visitation or to choose to further ignore this.  You are in breach of court orders.  If you make no serious attempt to resolve this I have no other option than to proceed with an application of contravention or contempt, as suggested by the judge. 

   You can easily have Mr K look after them for 15 min tonight to discuss upcoming visitation.

   Subject: Re: new address

   From: [the mother]

   Date: 2/04/2020, 8:47am

   To: [the father]

   Postal address remains p.o. box … Suburb S. 

   I do not yet have a confirmed residential address.  I’m sorry. 

   I will notify you as soon as I have one.  Hoping to confirm within the next few days. 

   I also advised you of this on the phone two evenings ago. 

   Ms Springer.

5. The mother advised the father that she had relocated the children to Town L and summarised her reasons for doing so in the following email:-

   Subject: Re: update

   From: [the mother]

   Date: 6/04/2020, 8:37 am

   To: [the father]

   Thanks.  You do not seem to be reading my emails or listening for the past six weeks. 

   My child support payments are inconsistent. 

   Carers payment is $450/ week. 

   I haven’t found a job and if you had not noticed, no jobs opening up any time soon. 

   You stopped paying health insurance, school and excursion fees, sports, etc.  Children’s medical expenses have gone up. 

   Amount of food they consume has gone up. 

   My housing applications are not being approved because of my low and inconsistent income.  They look for rent being 30% of income. 

   Please do the maths. 

   I asked you for help many many times. 

   Now you are sending me housing suggestions? 

   I have been to inspections all over Adelaide, within 35 minutes of school. 

   My budget is not sustainable. 

   I have advised you of all of these things AS they were happening. 

   We stayed with friends as long as we could and once my last applications were not accepted, we had no other choice but to go. 

   Please let me know if you would like to come and see the kids in NSW while the borders are still open.  Flights available.

6. Whilst the mother may have foreshadowed that she was experiencing difficulty in managing her family finances, accommodation and health and was giving consideration to relocating the children to northern New South Wales, she did not tell the father of her plans.

7. The evidence supports a finding that the mother considered that she should have been permitted to relocate with the children to northern New South Wales and when not able to do so she embarked upon a carefully engineered plan to establish a basis for the children’s relocation.

8. The mother did not tell the father of her plans to move in circumstances where she could have done so.

9. It is likely that the mother and the children left Adelaide on or about 23 March 2020.  For at least seven days the mother maintained a pretence with the father that it was COVID-19 restrictions that caused her to keep the children from school.  It was only when the father attended at the children’s school that he was told the children had been withdrawn from their enrolment.

10. The mother appeared in Court on 30 March 2020 and did not reveal her whereabouts notwithstanding that there was significant discussion about the father’s applications which focussed on his inability to spend time with the children.

11. Whilst the mother contends that she had a basis for moving with the children to northern New South Wales, she had no credible explanation for her conduct in not telling the father of her intentions to move until she had successfully done so.

12. The mother was deceptive in her conduct and deliberately so.

13. The mother continued the fiction that her move was temporary.  There is no evidence that would support that assertion.

14. The mother relies upon a medical report from her general practitioner dated 17 March 2020 that confirms she has been diagnosed with five cysts.  The prognosis is unclear as to the significance of the cysts.

15. The mother did not present any evidence that if the cysts are simple cysts or pre-cancerous that they are not able to be treated appropriately in South Australia.

16. There is no evidence that even if it is assumed the prognosis is poor, that the mother is able to be treated in Town L.

17. The mother complains that her financial position is precarious and made more so by the father’s unwillingness to provide additional financial support to her.

18. The proceedings between the parties resolved matters of property settlement and spousal maintenance.

19. The property available for division was modest and I accept that the majority of the settlement sum received by the mother was consumed by her legal fees.

20. The father is an academic.  It is not controversial that his income is significantly greater than the mother.

21. The father is the subject of a Child Support Assessment and there is no evidence that he has been recalcitrant in the payment of child support.  Whilst the mother complains that there have been periods when child support has been missed, the amount has changed without explanation or payments have been delayed, I find that the child support is payable by a direct withdrawal by the father’s employer from his income.  The amount paid is substantial and there is no evidence that the father has attempted to minimise his child support payments or to interfere with the method and manner by which child support is automatically withdrawn from his salary.

22. The father is not required to make payments over and above that which he is ordered to make or has been assessed to pay.

23. The involvement of the mother’s partner is a significant issue.

24. I am satisfied that the mother and Mr K are in a committed relationship.  He voluntarily left his home in Town L to reside with the mother and the children in Adelaide.  The mother tendered a Tenant Trust Ledger Report for premises rented by Mr K at T Street, Suburb U for the period 5 September 2019 to 17 March 2020.  Mr K concluded his employment with an Adelaide-based company on 6 March 2020 and took up employment with a Town V, New South Wales-based employer on 23 March 2020.  Mr K was not called to give evidence as to the circumstances by which his lease of the Suburb U property was terminated or the basis upon which he ceased employment with his Adelaide-based employer and took up employment with his current Town V-based employer.

25. In Jones v Dunkel (1959) 101 CLR 298 at 312 Menzies J provided a summary of the law as follows:-

    In my opinion a proper direction in the circumstances should have made three things clear:  (i) that the absence of a defendant … as a witness cannot be used to make up any deficiency of evidence;  (ii) that evidence which might have been contradicted by the defendant can be accepted more readily if the defendant fails to give evidence;  (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.

26. The father’s case is that the evidence which the father relies upon to demonstrate that the mother has manufactured her living circumstances to justify her relocation of the children could have been contradicted if Mr K had been called to give evidence.  There is no submission by the mother as to any impediment to Mr K being available.  Given my finding that the mother behaved deceptively in not informing the Court or the father that she had already moved whilst in discussion with him as to the arrangements for the children to spend time with him, I am entitled to take into account that the failure to adduce evidence from Mr K is a circumstance relevant to the Court’s consideration as to whether the mother is able to demonstrate she had a reasonable excuse for her admitted non-compliance of the orders.

27. The mother did not bring an early application to suspend or vary the final orders which prevented her from relocating with the children to northern New South Wales.

Conclusion

1. Section 70NAE of the Act sets out the meaning of reasonable excuse in the context of an allegation that there has been a contravention of an order.

2. It is not suggested by the mother that she misunderstood the obligations imposed by the order nor that reasons exist that should excuse her non-compliance with orders.

3. The mother contends that she believed on reasonable grounds that the contravention was necessary in order to protect the health or safety of the children and that the period of contravention was not longer than was necessary.

4. The Full Court in Childers & Leslie (2008) FLC 93-356 considered the issue of the “health of a child” as the basis for a reasonable excuse.

5. The Court identified that the extent of the “reasonable excuse” and circumstances that occurred after the alleged contravention were relevant to the consideration of any relevant excuse.

6. The Full Court determined that an assertion of reasonable excuse must be measured against the terms of s 70NAE(5) of the Act.

7. In Gaunt & Gaunt (1978) FLC 90-468 at 77,398 the Full Court said:-

   To allow a party to arrogate to himself a supervening power to make an independent decision on that issue [the welfare of the child] and to rely on that decision to escape from compliance with the Court’s order or from the consequences of non-compliance would undermine the purpose and intention of the Act.

   … A party’s subjective view of the rights and wrongs of a decision cannot be relied upon as “just cause or excuse” or “reasonable cause”.  Evidence of a changed circumstances or of matters not considered when the order was made might be.

8. It seems to me that the Court should adopt a cautious approach in finding reasonable excuse given that the contravention of an order, in particular an order made after a contested hearing, must be considered as an order made in the best interests of the child.

9. The Court is required to explore whether the mother had a reasonable excuse by reference to the relevant sections of the Act, and in this case whether the belief that the contravention of an order was necessary to protect the health or safety of a child was reasonable and not a subjective view of the mother.

10. The mother relied upon evidence to highlight that the children, but in particular C, may well have been frightened of the father.  I do not accept that the mother’s evidence provides a foundation for the submission that the children are at risk in the father’s care.

11. I have determined that the mother’s assertion that the father has perpetrated family violence on the children is a confected narrative.

12. The counterfoil to the mother’s position is that she does not seek to restrict the father’s ability to spend time with the children provided it enables the mother and the children to reside in northern New South Wales.

13. The email communication passing between the parties on 23 January 2020 refers to the mother’s inquiry of the father as to whether he would look after the children if she required medical treatment.

14. I accept that the mother and Mr K are in a committed relationship and that the mother desires to live with him.  It is likely that he provided financial support to the family, certainly in terms of the rent for the families’ accommodation.  His departure to New South Wales would have had an impact upon the financial arrangements in the mother’s household.  The mother’s reliance upon her financial impecuniosity arising from the departure of Mr K is made difficult to assess in circumstances where Mr K was not called and the mother did not provide any persuasive evidence that satisfied the Court she had attempted to find accommodation or that she was in financial difficulties.

15. I have found that the mother has engineered the circumstance in order to justify her unilateral decision to relocate the children to northern New South Wales.  She did so in a manner that was deceptive, whereas she could easily have brought her application to relocate the children prior to any intended departure.

16. It must be remembered that the current application is to deal with the mother’s alleged contravention of orders and is not informed by any change in the future parenting arrangements.

17. The Court needs also to deal with the mother’s application to vary the parenting orders such as to enable the children to remain in northern New South Wales.

18. Consideration can also be given to a variation of parenting orders pursuant to s 70NBA of the Act.

19. The considerations outlined by the Full Court in Rice & Asplund (1979) FLC 90-725 will be relevant to that consideration.

20. Minor variations are more easily undertaken and may call for a less meticulous consideration of s 60CC factors, whereas a more substantial variation requires a more detailed and nuanced consideration of what is in the children’s best interests.

21. Given my findings, the proceedings will be adjourned for the hearing of submissions on penalty, but thereafter I propose to order that I am disqualified from further involvement in the proceedings.

22. I make orders as appear at the commencement of these reasons.

I certify that the preceding eighty two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 28 July 2020.

Associate: 

Date:  28 July 2020