O & M
[2006] FMCAfam 297
•19 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| O & M | [2006] FMCAfam 297 |
| FAMILY LAW – Contravention of contact order – whether mother had a reasonable excuse for the contravention – reasonable excuse not established –penalty imposed. |
| Evidence Act 1995, s.140 Family Law Act 1975, ss.70NC, 70NE(a) |
| Attorney‑General v Times Newspapers (1992) 1 AC 191 Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell [2000] FamCA 313 Gaunt, In the marriage of (1978) FLC ¶90‑468; (1978) 4 FamLR 305; (1978) 33 FLR 148 Kelly v Kobelnek [1998] FamCA 296 (unrep) O'Brien (1993) FLC 92‑396 Northern Territory of Australia v GPAO [1999] HCA 8 Re Whitten (1887) 4 TLR 36 Reilly v Reilly (1995) FLC 92‑616 Stavros (1984) FLC 91-562 Stevenson & Hughes (1993) FLC 92-363 Taikato v The Queen [1996] HCA 28 TVT & TLM [2006] FMCAfam 20 |
| Applicant: | O |
| Respondent: | M |
| File number: | MLM 3452 of 2006 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 19 May 2006 |
| Date of last submission: | 19 May 2006 |
| Delivered at: | Ballarat |
| Delivered on: | 19 May 2006 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Jackson |
| Solicitors for the Applicant: | Jackson Sweet |
| Solicitor for the Respondent: | Ms Lia |
| Solicitors for the Respondent: | Sarah Lia |
FINDINGS
The Court is satisfied that the wife has, without reasonable excuse, contravened Order 3 of the Orders made by Mushin J on 27 November 2003 by failing to consult or discuss schooling arrangements for the child with the father.
The Court is satisfied that the wife has, without reasonable excuse, contravened Order 8(a) of the Orders made by Mushin J on 27 November 2003 by failing to deliver the child at the commencement of contact to the father in Bendigo on the following dates:
(a)11 February 2005;
(b)25 February 2005;
(c)25 March 2005;
(d)26 August 2005;
(e)9 September 2005;
(f)7 December 2005;
(g)2 December 2005;
(h)17 December 2005;
(i)26 December 2005;
(j)13 January 2006;
(k)27 January 2006; and
(l)10 February 2006.
ORDERS
The applicant and respondent do:
(a)attend and complete, as soon as practicable, the Parenting Apart post separation parenting program ("the Program") at an organisation as nominated by the Primary Dispute Resolution Coordinator of the Federal Magistrates Court of Australia;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the Program to the other party’s solicitors.
The respondent pay the applicant’s costs fixed in the sum of $3,065.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ballarat |
MLM 3452 of 2006
| o |
Applicant
And
| m |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is a contravention application brought by the applicant with respect to 17 alleged contraventions of consent orders entered into between the parties on 27 November 2003. Those consent orders were made by the Honourable Mushin J of the Family Court at a Ballarat sitting on that date. The relevant parts of the consent orders are as follows:
3.That the parties retain the joint responsibility for making decisions about the long term care, welfare and development of the said child.
4.That the mother have day to day responsibility for making decisions about the care, welfare and development of the said child when with her and the father have such responsibility when the said child is with him.
5.That D have contact with the father:
(a)Every second weekend from 5.00pm Friday to 5.00pm Sunday commencing on 5 December 2003;
…
(l)On D’s birthday if it falls on a non-contact weekend or during the school week then from 4.00pm to 7.00pm in the Ballarat area with the father collecting and returning the said child to and from McDonald’s Restaurant, Sturt Street Ballarat and should it be a contact weekend then:
(i) If a Friday, then he shall be delivered to the father at 7.00pm;
(ii) If a Saturday then from 4.00pm to 7.00pm in the Bendigo area with the mother if she wishes collecting and returning the said child from the father’s residence, and
(iii) If a Sunday, then he shall be returned to the mother at 4.00pm.
…
8.That for the purposes of such contact:
(a)the mother deliver D at the commencement of contact to the father’s residence at the front gate (with the mother sounding her horn and remaining in the car);
(b)the father deliver D to the mother at McDonald’s Restaurant, Sturt Street Ballarat at the conclusion of each contact period.
…
11.That if either party is running late to attend at a contact changeover then that party give the other as much notice as possible of such lateness and unless there is a delay which arises during the journey to the contact changeover, such notice to be given before that party commences such journey but nothing in this Order shall be interpreted as giving that party who is running late liberty to be late for contact changeovers without just cause or excuse – it being intended that all contact changeovers occur punctually.
12.That the mother within 14 days authorise the Ballarat Family Day Care in writing (or any other appropriate organisation responsible for organising D’s day care) and any other child care where D is placed to provide the father with appropriate information as to D’s day care arrangements and his development there.
…
15.That the mother authorise the father to be provided, at his expense, with copies of the child’s kinder and school reports, school photographs and notices of major school functions, with the mother to facilitate this provision.
Of the 17 contravention allegations, many can be conveniently grouped into one category, which I will refer to as the "weekend contact orders". They are contravention allegations 1 to 6, 8, 9 and 11 to 14. They all in substance relate to a breach of order 8(a), which provides for the mother to deliver the child at the commencement of contact to the father's residence at the front gate, with the mother sounding her car horn and remaining in the car. On each occasion it is alleged that the mother did not in fact deliver the children to the father's residence for the commencement of contact.
Allegation number 7 relates to a similar difficulty, but on this occasion the orders provided for delivery of the child to McDonald's and the mother requiring the father to attend at her residence to collect the child.
Allegation number 10 was struck out earlier in the proceedings, for reasons that are not relevant to this judgment.
Allegation number 15 relates to whether or not the mother had notified the child care centre of her consent to them providing information to the father.
Allegation number 16 relates to a claim by the father that the mother had failed to consult or discuss with him the schooling arrangements for the child, in particular the primary school being chosen for the child.
Contravention 17 as alleged was struck out earlier in the proceedings, again for reasons not relevant to these reasons of judgment.
A list of the dates of the weekend contact order breaches that are alleged is a more convenient way to deal with them than to set out the specific allegations on each occasion. Those dates are as follows: 11 February 2005; 25 February 2005; 25 March 2005; 26 August 2005; 9 September 2005; 7 December 2005; 2 December 2005; 17 December 2005; 26 December 2005; 13 January 2006; 27 January 2006 and 10 February 2006.
At the hearing of the matter the evidence on behalf of the father was his affidavit material and other affidavit material on the court file, one of which was an affidavit earlier in the proceedings by the mother. The father was not required for cross‑examination. The mother gave evidence in the proceedings and was cross‑examined. In her evidence she stated that in February 2005 the windscreen on her motor vehicle had broken en route to a contact drop‑off and this was later fixed but broke again. She said that the car which she currently has four different second‑hand tyres and is therefore unroadworthy.
With respect to allegation 7, she stated that she understood at that time that the father would collect the child from her home, as there had been some collections directly from her home prior to that. She proceeded on the basis that the course of conduct indicated that it would be ongoing. She, on receiving a telephone call from him at the McDonald's pick‑up point, required the father to pick collect the child from her home and contact started some 30 minutes later.
With respect to allegation 15, the mother stated that she placed the obligation of notifying the child care providers in the hands of her solicitors and thought that it had been done. With respect to allegation 16, she understood that she didn't have to advise the father of the school she had chosen for the child and said that she wasn't able to talk with him directly at that time because of the level of acrimony between the parties.
The mother also outlined that the father is obliged to pay child support of $225 per month and is in arrears at present. She said that she owns two properties in Ballarat at present, one the subject of a contract of sale. She said that the properties are funding her existence at present. It seems that she has had a number of properties over the years, some years ago having a property at St Kilda which was sold, and until recent times had three properties in Ballarat. There was also some evidence to the effect that she had purchased a block of land behind where she lives and later on sold it at a profit.
During cross‑examination the mother agreed that on a couple of occasions the father had agreed for contact handovers to occur at a different location as a result of her claims that the windscreen of the car had cracked. She also agreed that she regularly drives the child in and out of Ballarat in the particular motor vehicle. It was put to her that after the father had married she had attempted to change the contact handovers to the contact centre at Ballarat.
It appears there has been considerable correspondence by the father to the mother, though little in return. The mother stated that she has various mail boxes and believes that some of the mail may have been returned. She agreed that she had not answered most of the letters from the father.
The mother stated in cross‑examination that she feels degraded by the father. When asked for specific instances, she related an event that she said occurred in 2004 at a McDonald's. On that occasion, she said that she asked why the father was so angry and he had described her in less than appropriate terms as he stormed off. She did not seem able to readily provide details of specifics or occasions that have led to her feelings in this regard. She did however outline that on one occasion she believed that the father had stopped himself from hitting her, which had obviously caused her some fear.
When pressed for specifics as to the defects in the motor vehicle, she said that the windscreen had broken in January or February of 2005. Then, a couple of weeks later, the brakes had failed because one of the tyres had worn through to the steel belts and this had interfered with the brake mechanism. She said that in April the windscreen was fixed again, but the car is presently not, in her view, roadworthy. She said that in November 2005 she had had a small traffic accident which had also interfered with the motor vehicle.
The motor vehicle is a relatively new car, a 2002 Daewoo. The travel that she regularly undertakes is seven kilometres from her home to the school that the child attends, one kilometre of which is dirt, and six kilometres to the supermarket near the school. She lives around 13 kilometres from the city centre of Ballarat. Whilst she is on a pension, she owns at present two properties and lives in neither of them. She says that she believes she has around $40,000 in equity in these properties.
The mother was cross-examined with respect to the McDonald's incident, about a text message that was sent and a message that was provided on 27 November 2005 that stated that she did not recall ever receiving a message on 27 November 2005. That was a message from the father confirming that he was going to exercise contact in terms of the orders for pick-up at McDonald's. With respect to allegation 16, she stated - after being pressed to consider carefully the terms of order 3 - that she would have to tell the father about the schooling in light of order 3.
The mother was unsure if any bus ran from Ballarat to Bendigo, the towns being not a great distance apart, although certainly not adjoining suburbs. She said that she has offered the father changeovers at the Ballarat contact centre and has sought counselling. The parties have attended mediation in recent times, although it does not appear that it has been a successful process. Indeed, the suggestion by the mother in evidence led to cross-examination about the fact that she had to cancel the first mediation appointment on very short notice, delaying the whole process for some five weeks.
My overall impression of the mother when she was giving evidence was that she was a capable and articulate woman. I have little doubt that she would able to achieve most things that she put her mind to or was motivated to do. I find it difficult to accept that she would drive her son, a young child, in an unroadworthy motor vehicle for so long, particularly when she is referring to issues relating to the tyres and not only the brakes but also the windscreen.
I find it difficult to accept that if the vehicle was in such condition, she would not prioritise a safe vehicle - at the very least for her day-to-day travel with her son - over and above her investment properties. In this regard, I found some of her evidence difficult to accept.
The law
The meaning of "contravened" with respect to an order is defined in s.70NC of the Family Law Act 1975 (‘the Act’) and as follows:
Meaning of contravened an order
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; or
(b) otherwise—he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
The applicant bears the onus of proving the contravention on the balance of probabilities. See generally Reilly v Reilly (1995) FLC 92‑616. Section 140 of the Evidence Act 1995, which refers to the standard of proof, provides for the court to take into account the nature of the proceedings in determining whether it is satisfied to the requisite standard. Subsection (2) says:
Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceedings; and
(c) the gravity of the matters alleged.
One must be mindful of the seriousness of contraventions of children's orders and the penalties that may ultimately be imposed. In many contravention cases involving contact orders, consideration must be given to what is necessary to amount to a contravention or to ‘make no reasonable attempt to comply with the order’. The extent of the obligation has been discussed in a number of cases. The starting point is that a contact order is not a mere declaration. It is implicit in the order that reasonable steps must be taken to ensure that contact as ordered takes place. See Stavros (1984) FLC 91-562.
The absence of detailed orders providing for the mechanics of handovers does not make the orders inoperative or incapable of enforcement. However, whether the steps taken are a reasonable attempt to comply with a children's contact order will ultimately depend upon the facts and circumstances of each case. With respect to cases concerning the encouraging of children to participate in contact, this issue has been discussed at some length in O'Brien (1993) FLC 92‑396 and Stevenson & Hughes (1993) FLC 92-363. Many of the relevant passages have been extracted and set out in my judgment in TVT & TLM [2006] FMCAfam 20 at [33].
If satisfied that the mother contravened the order, either intentionally or by making no reasonable attempt to comply, the court must then consider whether the mother has a reasonable excuse for the contravention. The meaning of ‘reasonable excuse’ is not limited (see Northern Territory of Australia v GPAO [1999] HCA 8 at [14]) but includes the circumstances set out in section 70NE of the Act. Section 70NE is in the following terms:
Meaning of reasonable excuse for contravening an order
(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 subsections (1A), (2), (3) and (4).
(1A)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.
At common law, liability for breach of an order was strict. See Attorney‑General v Times Newspapers [1992] 1 AC 191 at 217. Indeed, a person could even be liable if they had not read the order. For example, in Re Whitten [1887] 4 TLR 36, Kay J did not accept a father's excuse for breaching a children's order (by allowing his son contact with his friend, Ms Dick) where the father claimed that he had not read the order but only been told of its contents by his solicitor. Kay J said:
If a man did not choose to see the terms of an order which had been made against him and chose to act without seeing the terms of the order, he must take the consequences.
Section 70NE(1A) eases the common law position with respect to children's orders by requiring the court to consider whether or not the respondent understood her obligations as imposed by the order. In order to determine whether a reasonable excuse has been shown, an objective test should be applied. See In the marriage of Gaunt (1978) FLC ¶90‑468; (1978) 4 FamLR 305; (1978) 33 FLR 148; Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell [2000] FamCA 313. In Kelly v Kobelnek [1998] FamCA 296 (unrep) an unreported decision of Hannon J of the Family Court on 10 March 1998, his Honour said:
The respondent, in order to exculpate from herself from the contravention, must establish that she has, or had, a reasonable excuse according to an objective test; namely, whether a reasonable person in the position of the mother would consider on reasonable grounds that she had a reasonable excuse for the contravention.
In Taikato v The Queen [1996] HCA 28, Brennan CJ and Toohey, McHugh and Gummow JJ said:
The term "reasonable excuse" has been used in many statutes and is the subject of many reported decisions, but decisions and other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of reasonable excuse is an exception. In applying an objective test under section 70NE some difficulties present themselves under subsection (1)(a). In contrast, it's easy to see that an objective test can be applied with respect to subsection (3).
It appears to me that sub-s.(1A), firstly requires consideration of the respondent's subjective state of mind; and secondly, requires an objection test to be applied. In applying the objective test it is appropriate to consider the facts and circumstances of the particular case.
When applying the test under s.70NE(1A) it does not appear to me that the respondent must necessarily have behaved as the objective and somewhat mythical reasonable person would behave but rather it is for the judge or federal magistrate to consider the matter from the perspective of an objectively reasonable person in deciding whether the particular respondent should. in the particular circumstances of the case, bearing in mind the characteristics of the people concerned and the objects and purposes of the Family Law Act1975, be excused on the basis of a reasonable excuse.
The Evidence and findings
I therefore turn to the specific issues in this case. I deal firstly with the issues relating to allegation 15, the child care centre. The only evidence with respect to the breach of the particular order with respect to the child care centre is that set out by the father in paragraphs 35 to 36 of his affidavit where he states:
35. The mother has failed to authorise in a timely manner appropriate information regarding D's day care arrangements.
36. Pursuant to paragraph 3 of the Family Court orders, the parties retain joint responsibility for making decisions about the long‑term care, welfare and development of D.
It does not appear to me that this provides a proper evidentiary foundation for a finding that the mother did not in fact, either directly or by her solicitors, authorise the child care centre or daycare provider. For this reason it appears to me that I must dismiss allegation 15 on the basis that the breach of the order has not formally been proved. I therefore do not need to turn to whether or not it was appropriate for the mother to simply leave that in the hands of her solicitors nor whether I ought to accept or reject her evidence in that regard.
With respect to allegation 7 of the handover at McDonald's, I accept that there had been, albeit for a relatively short time, a course on conduct relating to a pick-up from the mother's residence rather than in terms of the orders because of the difficulties with roadworthiness of the mother's vehicle and the acceptance at that stage by the father of that excuse.
There is no evidence from the father that he in fact made a telephone call on 27 November 2005 or left the message. This is not a matter set out in his affidavit. His statements in this regard from the bar table cannot be taken as evidence in the proceedings. In these circumstances, I am left with evidence of a course of conduct leading up to that time and no evidence as to any specific request to comply strictly with the court order.
Taken in the overall circumstances, whilst I am satisfied that there has been a breach of the order, I accept that the mother has, with respect to that count, a reasonable excuse: that is, that the course of conduct had led her to expect that contact handover would take place elsewhere and there was nothing to indicate to the contrary, at least on the evidence that came before me in the hearing.
Failure to consult with respect to choice of schooling
The next issue is with respect to allegation 16. This allegation relates to the mother's failure to consult with the father with respect to the choice of schooling. She initially said that she didn't think she had to tell the father, although it appears to me that order 3 is clear. The mother did not appear to have any difficulty understanding it when taxed with the terms of the order in the witness box.
It appears to me that there is no real difficulty upon a primary carer consulting with the other parent by way of a letter setting out a proposal for schooling in the future. Whilst more fulsome consultation would generally be hoped for, it must be understood that in some cases the level of acrimony between the parties makes that unrealistic. However, in a case where the mother is aware of where the father lives there presents no difficulties in her consulting by way of writing.
There are few significant long‑term events or issues that the parties need to consult upon in the life of the average child; often they are limited only to the choice of primary school and later a secondary school and sometimes other medical and religious issues. There are not so many issues that it would be burdensome or onerous to expect that a primary carer to at least write with the proposed school details to give the other parent an opportunity to provide some input. It may even be that in some cases the other parent has a proposal that is ultimately accepted as superior for the benefit of the child.
At the very least, it provides the other parent with some sense of participation in the child's life and an opportunity to support the child in taking up the decision of the school that is ultimately made. In this regard I am not satisfied that the mother misunderstood the order. At best, it appears to me that she had an almost reckless disregard for the terms of the orders and had not consulted them specifically, considering her obligations; and at worst, a somewhat high‑handed or flagrant attitude towards the position of the father and the terms of the orders.
Ultimately I am satisfied that not only was the order breached but that the mother does not have a reasonable excuse for doing do, either with respect to the claim that she failed to understand the terms of the orders or her obligations or that she was concerned about the method by which she would be able to consult with the father. I therefore find this allegation proved.
Weekend contact periods
The remaining allegations all deal with weekend contact periods. Having regard to the way in which the case was presented and run, it appears to me to be convenient to deal with them together. Whilst they relate to many different dates, the actual conduct alleged and the excuse is largely the same for all of the counts.
There is clear evidence that the mother had not complied with the order, in that she had not taken the child to Bendigo for the purpose of the contact changeover. It also appears clear that she had not attempted to obtain other sources of transportation, in that she had neither considered nor explored the use of a bus.
She has a Daewoo motor vehicle, which is a relatively new car and must have been covered by a warranty for at least some part of the early years that she had it. It is reasonable to expect that its condition would generally be reasonably good, given its age. No issue has been raised before me about the cost of petrol being the impediment to compliance with the order.
I accept that in the country windscreens get broken from time to time and, on less popular models of motor vehicles, there may be a delay in sourcing a windscreen to replace one that has been broken. I also accept that even on more popular models there may be some delay in obtaining a windscreen for either financial reasons or simply sourcing an appropriate windscreen in the country.
This would generally provide a reasonable excuse for one or maybe two contact visits after a windscreen has been broken. Thereafter, it does not appear to me to be generally a reasonable excuse for failing to fulfil obligations, unless there is a real reason why the motor vehicle cannot be repaired or used. In this case there is no evidence of any specific repairs having been carried out and no documents relating to repairs, no dates when the vehicle was actually repaired and no specific proposals about what will happen with the vehicle in the future.
In circumstances, where this young child must regularly travel in the motor vehicle and the mother has assets, which could be utilised by way of sale of land, to fund the maintenance of a vehicle in appropriate roadworthy condition, I do not see that this is a reasonable excuse for the contravention. Indeed it raises other more fundamental questions, which will need to be addressed elsewhere, as to the extent to which the mother is properly meeting the needs of the child, as it is clearly inappropriate for a child of this age to regularly be travelling in a vehicle that the mother says is not roadworthy.
I also note that in this case the rate of child support is low. However, it is a case where there is no specific evidence about the capacity of the father to pay a greater amount of child support nor detailed financial evidence about the mother's true financial position. It appears to me that in this case the broken windscreen became a convenient excuse for the mother to avoid the consequences of the consent order that she had entered into which had provided for the parties to share in the rigours of travelling.
I am not satisfied that the mother has established on the balance of probabilities a reasonable excuse or that she took reasonable steps to comply with the orders. In light of the evidence that the father had foregone his rights under the orders on at least some occasions as a result of the difficulties with the windscreen, I am ultimately satisfied that the husband has made out the contravention as alleged in each of the counts. I therefore find the contraventions in counts 1 to 6, 8, 9 and 11 to 14 to be proved.
Penalty to be imposed
In this case I consider the nature of the breaches disconcerting: the number of them, and what appears to me to be a disregard for the serious obligations under the orders. However, these proceedings are the first proceedings brought for breaching court orders and often there is no need for further breach proceedings after the first set of proceedings. As a result, I ultimately am persuaded that these are breach proceedings in the less serious category, as described in the Act, rather than the more serious category.
I propose to order that both parties attend a parenting course. I am not persuaded at this stage that ordering make-up driving will necessarily have the benefits that it might appear to have. Whilst there is some sense of justice in ensuring that the equal distribution of the difficulties of driving from Bendigo to Ballarat is restored, there is also the practical reality that it is a lengthy trip for anybody to make both ways on the weekend, bearing in mind that the parents travel from one city to the other to drop the child off and then are going to collect the child, so they do double the travel that their child does.
In the circumstances am not persuaded at this stage that an order for make-up driving is necessary. As a result, I do not make further consequential orders at this time.
Costs
These are contravention proceedings. The applicant has been successful. Having regard to the circumstances of the parties and the conduct that has led to the contravention proceedings, I am persuaded that it is appropriate that the respondent pay the applicant’s costs fixed in the sum of $3,065. I propose further ordering that payment be made upon the sale by the respondent of her property at 505 Bond Street, Ballarat, or within three years, whichever is sooner.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate: Melissa Gangemi
Date: 27 June 2006
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