ONGAL & MATERNS
[2013] FamCA 283
•1 May 2013
FAMILY COURT OF AUSTRALIA
| ONGAL & MATERNS | [2013] FamCA 283 |
| FAMILY LAW – ORDERS – contravention – where the mother’s application for contravention orders alleges two counts of contravention – where the primary order concerned the time the children are to spend with the father – where the father admits both counts of contravention – consideration of whether the father had a reasonable excuse for contravention – where the father claims he did not believe he was required to comply with the orders given his belief that the mother had contravened the orders – consideration of s 70NAE(2) of the Family Law Act 1975 (Cth) – no reasonable excuse for contravention established. FAMILY LAW – ORDERS – contravention – where the mother’s application for contravention orders alleges two counts of contravention – where the primary order concerned the time the children are to spend with the father – application dismissed as the orders which formed the basis of the application were no longer operative at the time of the alleged contraventions. FAMILY LAW – ORDERS – contravention – where the father’s application for contravention orders alleges four counts of contravention – where the primary order concerned the time the children are to spend with the father – where the mother admits all four counts of contravention – consideration of whether the mother had a reasonable excuse for contravention – where the mother claims that the orders do not provide for the father to spend time with the children as alleged in his application for contravention orders – consideration of s 70NAE(2) of the Family Law Act 1975 (Cth) – reasonable excuse for contravention established. |
| Family Law Act 1975 (Cth) s 70NAC, 70NAE, 70NAF, 70NBA, 70NDB, Family Law Rules 2004 (Cth) r 21.08 |
| In the marriage of Gaunt (1978) 4 Fam LR 305 Mitty & Mitty [2012] FamCA 329 Taikato v R (1996) 186 CLR 454 |
| APPLICANT: | Mr Ongal |
| RESPONDENT: | Ms Materns |
| FILE NUMBER: | ADC | 2107 | of | 2007 |
| DATE DELIVERED: | 1 May 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 20 December 2012, 12 March 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | In person |
Orders
The contravention applications are adjourned to Wednesday 22 May 2013 at 2.15 pm before the Honourable Justice Dawe for the Court to hear submissions from each of the parties in relation to the orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ongal & Materns has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2107 of 2007
| Mr Ongal |
Applicant
And
| Ms Materns |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment concerns two applications for contravention orders filed by Ms Materns (“the mother”) on 13 July 2012 and one application for contravention orders filed by Mr Ongal (“the father”) on 16 July 2012.
These applications for contravention orders assert various breaches of parenting orders concerning the two children of the marriage L born in June 2001 (aged 12) and M born in May 2004 (aged 8) (“the children”).
The mother’s first application for Contravention Orders
The mother’s first application for contravention orders filed on 13 July 2012 alleges two counts of contraventions.
The first count allegedly occurred at 5.00 pm on Saturday 14 April 2012 at the W Police Station. The alleged contravention is said to be in breach of order 5(i)(d) of the Consent Orders certified by Justice Strickland on 27 February 2007. The statement of the alleged contravention is “Respondent without reasonable excuse did not return the child [L] inside the [W] police station for School holidays.”
Order 5(i)(d) of the Consent Orders certified by Justice Strickland on 27 February 2007 provides:
5.That the said children do spend time with the father as follows:
(i)as to the child [L]
(d) for the first half of the April, June/July, and September/October school holidays in each year from the conclusion of school on the Friday until 5.00pm on the second Saturday of each such period to the intent that the time spent by the child with the father referred to in sub-paragraphs b) and c) above shall be suspended during such school holiday periods and Christmas school holiday periods.
The second count also allegedly occurred at 5.00 pm on Saturday 14 April 2012 at the W Police Station. The alleged contravention is said to be in breach of orders 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007 and Order 7 of the Consent Orders certified by Justice Burr on 4 June 2008. The statement of the alleged contravention is “Respondent without reasonable excuse did not return the child [M] inside [W] police station for April School Holidays.”
Order 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007 provides:
5.That the said children do spend time with the father as follows:
(ii) as to the child [M]
(l) thereafter for all school holiday periods and Easter and Christmas and Father’s day and on his birthday at the same times as ordered for the child [L];.
Order 7 of the Consent Orders certified by Justice Burr on 4 June 2008 provides:
7.That paragraph 5ii)(l) of the Orders made herein on 27 February 2007 be amended as follows:-
Thereafter for all school holiday periods, Monday Public Holidays, Easter, Christmas and Father’s Day at the same times as ordered for the child [L] provided that the father shall return [M] to the mother between the hours of 8.50am until 5.00pm on Mother’s Day in each year.
The mother’s second application for Contravention Orders
The mother’s second application for contravention orders also filed on 13 July 2012 alleges two counts of contraventions.
The first count allegedly occurred at 4.00 pm on Friday 23 December 2011 at the W Police Station. The alleged contravention is said to be in breach of order 5(i)(h) of the Consent Orders certified by Justice Strickland on 27 February 2007. The statement of the alleged contravention is “Respondent without reasonable excuse did not return the child [L] inside the [W] police station for Christmas.”
Order 5(i)(h) of the Consent Orders certified by Justice Strickland on 27 February 2007 provides:
5.That the said children do spend time with the father as follows:
(i)as to the child [L]
(h) from 4.00pm on 25/12/07 until 4.00pm on 27/12/07 and each alternate year thereafter (reserving to the mother from 4.00pm on 23/12/07 to 4.00pm on 27/12/08).
The second count also allegedly occurred at 4.00 pm on Friday 23 December 2011 at the W Police Station. The alleged contravention is said to be in breach of orders 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007. The statement of the alleged contravention is “Respondent without reasonable excuse did not return the child [M] inside [W] police station for Christmas.”
Order 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007 provides:
5.That the said children do spend time with the father as follows:
(ii)as to the child [M]
(l) thereafter for all school holiday periods and Easter and Christmas and Father’s day and on his birthday at the same times as ordered for the child [L];
As noted above concerning the mother’s first application for contravention orders, Order 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007 was amended by Order 7 of the Consent Orders certified by Justice Burr on 04 June 2008. The amendment is not relevant to this application for contravention orders.
The father’s application for Contravention Orders
The father’s application for contravention orders filed on 16 July 2012 alleges four counts of contraventions.
The first count allegedly occurred at 3.25 pm on 1 April 2010 at the W Police Station. The alleged contravention is said to be in breach of Order 5(i)(b) and 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007. The statement of the alleged contravention is “The mother, without reasonable excuse, did not attend at the [W] police station for handover of the children, thereby preventing the children [L] and [M] from spending time with the father for the period of Thursday afternoon until Friday morning.”
Order 5(ii)(l) has already been stated above in relation to the mother’s application for contravention orders. Order 5(i)(b) of the Consent Orders certified by Justice Strickland on 27 February 2007 provides:
5.That the said children do spend time with the father as follows:
(i)as to the child [L]
(b)from the conclusion of school Thursday 8/3/07 until the commencement of school on Friday 9/3/07 and in each alternate week thereafter (provided always that if on any such Thursday the said child shall have a “pupil free day” then the child do spend time with the father on that day from 9.00am);
The second count allegedly occurred at 3.25 pm on 1 April 2010 and 4 April 2010 at the W Police Station. The alleged contravention is said to be in breach of order 5(i)(d) and 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007. The statement of the alleged contravention is “The mother, without reasonable excuse, did not attend at the [W] Police station for handover of the children, thereby preventing the children [L] and [M] from spending time with the father for the period of the first week of the April 2010 school holidays.”
Orders 5(i)(d) and 5(ii)(l) have already been stated above in relation to the mother’s applications for contravention orders.
The third count allegedly occurred at 3.25 pm on 5 April 2012 at the W Police Station. The alleged contravention is said to be in breach of order 5(i)(c) and 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007. The statement of the alleged contravention is “The mother, without reasonable excuse, did not attend at the [W] police station for handover of the children, thereby preventing the children [L] and [M] from spending time with the father for the period of Thursday afternoon until Tuesday morning.”
Order 5(ii)(l) has already been stated above in relation to the mother’s application for contravention orders. Order 5(i)(c) of the Consent Orders certified by Justice Strickland on 27 February 2007 provides:
5.That the said children do spend time with the father as follows:
(i)as to the child [L]
(c) from the conclusion of school on Thursday 15/3/07 until the commencement of school on Monday 19/3/07 and in each alternate week thereafter (provided always that firstly if on any such Thursday the said child shall have a “pupil free day” then the said child shall spend time with the father on that day from 9.00am and secondly if any such Monday shall fall on a Public Holiday then the father shall return the child to school on the following Tuesday at the appointed commencement time);
The fourth count allegedly occurred at 3.25 pm on 5 April 2012 and 6 April 2012 at the W Police Station. The alleged contravention is said to be in breach of order 5(i)(d) and 5(ii)(l) of the Consent Orders certified by Justice Strickland on 27 February 2007. The statement of the alleged contravention is “The mother, without reasonable excuse, did not attend at the [W] police station for handover of the children, thereby preventing the children [L] and [M] from spending time with the father for the period of the April 2012 school holidays.”
Orders 5(i)(d) and 5(ii)(l) have already been stated above in relation to the mother’s applications for contravention orders.
The Law
Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) contains provisions concerning applications for contravention orders. The following are the most relevant to these proceedings:
70NACMeaning 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;
70NAE 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 (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).
70NAF Standard of proof
(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 exist.
70NBAVariation of parenting order
(1)A Court having jurisdiction under this Act may make an order varying a primary order if:
(a)proceedings in relation to the primary order are brought before a Court having jurisdiction under this Act; and
(b)it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the Court does not find that the person committed a contravention of the primary order; or
(ii) the Court finds that the person committed a contravention of the primary order.
(2)If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the Court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a)the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program;
(b)there was no post‑separation parenting program that the person who contravened the primary order could attend;
(c)because of the behaviour of the person who contravened the primary order, it was not appropriate, in the Court’s opinion, for the person to attend a post‑separation parenting program, or a part of such a program;
(d)the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3)This section does not limit the circumstances in which a Court having jurisdiction under this Act may vary a primary order.
Subdivisions C – F of Division 13A of the Act provide the orders which can be made:
a)Where the contravention has been alleged but not established (Subdivision C);
b)Where the contravention is established but reasonable excuse for the contravention is found (Subdivision D); and
c)Where the contravention is found to have occurred without reasonable excuse which are “less serious” (Subdivisions E) or “more serious” (Subdivision F).
Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) outlines the procedure for the hearing of an application for contravention orders:
21.08 Procedure for hearing
At the hearing of an application mentioned in item 1A, 2, 3, 4, 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.”
Previous applications for Contravention Orders filed in these proceedings
The parties in these proceedings have previously been involved in contravention proceedings. It is important to place these current applications for contravention orders in the context of previous applications as repeated contraventions may carry more serious consequences than first instance contraventions.
The first application for contravention orders in these proceedings was filed by the father on 17 July 2007. A draft order of Judicial Registrar Forbes suggests this application was resolved without official Court intervention.
The second application for contravention orders in these proceedings was filed by the mother on 6 September 2007. The father admitted one count contained in this application for contravention orders, being a contravention of Order 9(b) of the Consent Orders certified by Justice Strickland on 27 February 2007, with the remaining counts being otherwise dismissed by the order of Judicial Registrar Forbes dated 28 November 2007. Order 9(b) restrains the parties from denigrating the other party or discussing the family law proceedings in the presence or hearing of the children or permitting others to do the same.
The third application for contravention orders in these proceedings was filed by the father on 21 November 2007. This application was dismissed by Justice Burr on 4 June 2008.
The fourth application for contravention orders was filed by the mother on 12 July 2010. The respondent admitted one count contained in this application for contravention orders, being a contravention of paragraph 5(i)(d) of the Consent Orders certified by Justice Strickland on 27 February 2007. As a consequence of this, the father was ordered to provide makeup time for the contravention and put on a 12 month good behaviour bond on 17 March 2012. The sum of $500.00 was provided by the father as surety for the bond. The application was otherwise dismissed.
The fifth application for contravention orders was filed by the father on 27 July 2011. This application was struck out by Registrar Paxton on 9 August 2011.
As such, I am presently faced with the sixth, seventh and eighth applications for contravention orders between these parties.
Evidence and submissions of the parties concerning the mother’s first application for Contravention Orders
The mother filed an affidavit in support of her second application for contravention orders on 13 July 2012. Paragraphs 23 to 35 detail the circumstances surrounding the mother’s first application for contravention orders. The mother claims to have sent a text message to the father on the date of the alleged contravention but received no reply. She claims that the children were not returned to the handover point (W Police Station) until the following Sunday (22 April 2012).
The father filed an affidavit in response to the affidavit of the mother on 7 August 2012. Paragraphs 14 to 25 detail the circumstances surrounding the mother’s first application for contravention orders. The father claims that it was the “mother who contravened this order by denying [him his] first week of school holidays”. Therefore, he alleges that order 5(i)(d) of the Consent Orders certified on 2 February 2007 by Justice Strickland was “no longer in operation because it was impossible for [him] to satisfy the conditions of this order and take the first half of the orders”.
At the hearing of this application for contravention orders, the father admitted the contraventions but claimed to have a reasonable excuse for the reason discussed in paragraph 35 of this judgment. The father was unable to explain why he believed an order simply ceased operating if it was contravened by a party.
The mother’s cross-examination of the father sought generally to confirm factual matters that the father had already implicitly acceded to given his admission of contravention.
The father advanced his final submissions concerning the existence of his reasonable excuse first. He claimed to be in “response mode” following the alleged contravention of the wife, and that “no matter what [he] did, the order would be broken”. Further, he “thought it was reasonable that I make sure the children have substantial contact with their father”. He then reiterated that he “didn’t realise that an obligation still remained in terms of part of the order, even though part of the order had been contravened”.
The mother used her opportunity for final submissions to assert simply that “the father has no reasonable excuse” without engaging directly with his asserted reasonable excuse concerning his understanding that orders ceased to be operative upon her alleged contravention of the orders.
Consideration of the mother’s first application for Contravention Orders
The father admits the contraventions that form the substance of this application for contravention orders. He claims to have a reasonable excuse for these contraventions. The father must prove on the balance of probabilities that he had a reasonable excuse for this contravention. (Section 70NAF(1)—(2) and 70NDA(c)).
Section 70NAE of the Act provides a list of circumstances in which a person may be taken to have had a reasonable excuse for contravening an order. This is not an exhaustive list.
Subsection 70NAE(2) provides that a person is taken to have had a reasonable excuse for contravening an order if the contravention occurred “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 “the Court is satisfied that the respondent ought to be excused in respect of the contravention”.
Rees J relied upon the comments of Brennan CJ, Toohey, McHugh and Gummow JJ in the High Court decision of Taikato v R (1996) 186 CLR 454 in her recent decision of Mitty v Mitty [2012] FamCA 329 concerning the meaning of reasonable excuse in the context of applications for contravention orders. At paragraph 15 of the Mitty decision, her Honour states:
In Taikato v R (1996) 186 CLR 454, the High Court (per Brennan CJ, Toohey, McHugh and Gummow JJ), in a different context, considered the meaning of reasonable excuse in relation to which their Honours said:
The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on 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… (page 464, footnotes omitted)
…
However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the Courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a Court makes its decision. They effectively require the Courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so, the Courts must give effect to the will of parliament and give effect to their own ideas of what is a “reasonable excuse”… (p 466)
The provisions of section 70NAE(2) can be seen as requiring both positive and normative considerations. First, the Court is asked to determine whether the father actually did not understand the orders. I find that, in the instant case, the father genuinely believed he was not required to comply with the orders given his belief (which I also find was genuine, though not necessarily correct) that the mother had contravened the orders.
Next, the Court is asked to determine whether the respondent ought to be excused in respect of the contravention. It is at this stage of the consideration that the extracted judgment of Rees J becomes relevant to the case at hand. Namely, “the Courts must give effect to the will of parliament and give effect to their own ideas of what is a reasonable excuse.”
In the instant case, I am not satisfied that the father ought to be excused in respect of his admitted contraventions. It is illogical that the contravention of an order by one party somehow allows the other party to contravene that order. The correct approach for dealing with contraventions of orders of this Court is to file an application for contravention orders. The father knows this and has utilised this mechanism on more than one occasion in these proceedings. The correct approach is not to “return fire” with a contravention in response to an opposing parties alleged contravention. The father’s belief is symptomatic of the “tit for tat” conduct between the parties in these proceedings that is in no way beneficial to the welfare of their children.
The fact that the father thought he was acting in the best interests of the children in contravening the order is irrelevant to the determination of whether he had a reasonable excuse for his contraventions. As noted by the Full Court of the Family Court (Evatt CJ, Emery SJ and Hogan J) in the case of In the marriage of Gaunt (1978) 4 Fam LR 305 at 308: “A party’s subjective view of the rights and wrongs of a decision cannot be relied on as ‘just cause or excuse’ or ‘reasonable cause’.”
As such, I find that the father has failed to establish on the balance of probabilities that he ought to be excused for the contravention as outlined in the mother’s first application for contravention orders.
Evidence and submissions of the parties concerning the mother’s second application for Contravention Orders
The mother filed an affidavit in support of her second application for contravention orders on 13 July 2012. Paragraphs 10 to 22 detail the circumstances surrounding the alleged contravention. The mother claims to have attended the handover location (the W Police Station) twice on the date of the alleged contravention (23 December 2011), with the father not being in attendance on either occasion. The mother annexes email correspondence from the father that suggests that the father’s interpretation of the existing orders at the time was such that he did not need to return the children to the mother’s care on the date of the alleged contravention.
The father filed an affidavit in response to the affidavit of the mother on 7 August 2012. Paragraphs 4 to 13 concern the mother’s second application for contravention orders. The father states that, on his interpretation of the relevant orders, he was not required to return the children to the mother’s care on the date of the alleged contravention.
Oral submissions on this application for contravention orders were heard on 20 December 2012. Throughout these submissions, it became clear that the order which the father is alleged to have contravened, that being paragraph 5(i)(h) of the Consent Orders certified by Justice Strickland on 27 February 2007, had been suspended by FM Brown on 26 November 2010. It has not been reinstated since that order.
Consideration of the mother’s second application for Contravention Orders
I dismissed this application for contravention orders at the hearing on 20 December 2012. My reasons are contained in the decision of Ongal & Materns [2012] FamCA 1144.
Following the dismissal of this application for contravention orders, I exercised the discretionary power in section 70NBA of the Act to vary certain existing orders to clarify the arrangements for the December 2012 and January 2013 school holidays. These amendments were made with the consent of the parties as set out in Ongal & Materns [2012] FamCA 1144.
Evidence and submissions of the parties concerning the father’s application for Contravention Orders
The First “Set” of Contraventions – Counts 1 and 2 (alleged to have occurred in April 2010)
The father filed an affidavit in support of his application for contravention orders on 16 July 2012. Paragraphs 22 to 41 deal with the two counts of contravention that allegedly occurred in April 2010. The paragraphs deal largely with technical matters. The father alleges that the children do not automatically spend Easter with the mother in even years because order 5(i)(g) of the 27 February 2007 orders states that they are to spend Easter with the father in odd years. As such, order 5(i)(b) “in each alternate week, the children are to spend time with the father from the conclusion of school on Thursday until the commencement of school on Friday unless Thursday is a pupil free day in which case the child spend time with the father from that Thursday from 9:00am until the commencement of school on Friday” and 5(i)(d) “the children spend the first half of the April school holidays every year with the father from the conclusion of school on Friday until 5.00 pm on the second Saturday, with paragraph 5(i)(b) suspended during the operation of 5(i)(d)) continue to operate throughout the Easter period”. The father goes on to state that, on this interpretation of the orders, the mother breached order 5(i)(b) (Count 1) and 5(i)(d) (Count 2)
Paragraphs 3 to 8 of the wife’s affidavit filed 18 December 2012 respond to paragraphs 22 to 41 of the husband’s affidavit filed 16 July 2012. The mother contends that the orders that form the subject of Count 1 and 2 of this application were altered by Consent Orders certified by Justice Burr on 27 October 2011. However, the order of Registrar Paxton dated 14 June 2012 notes that these orders were never made.
Some of the evidence in relation to the first count of this application for contravention orders was heard on 20 December 2012. The matter next came on before me on 30 January 2013. The mother was unable to attend this date due to illness. The matter was subsequently adjourned to 12 March 2013, at which time I heard the remainder of the oral submissions on this application for orders.
The mother denied the contraventions alleged in both Counts 1 and 2 at the hearing date on 20 December 2012. She later withdrew this denial in her final submissions, instead admitting the contravention but claiming a reasonable excuse based on her interpretation of the Easter related orders.
The father delivered a nominal amount of evidence in chief. The mother then proceeded to cross-examine him. This cross-examination established that the father had the children for Easter in 2009 and 2011 in accordance with paragraphs 4 and 5(i)(g) of the Consent Orders certified by Justice Strickland on 27 February 2007. In re-examination, the father sought to submit that the terms of order 5(i)(g) was irrelevant given the contraventions in Count 1 and Count 2 allege contravention of orders 5(i)(b) and 5(i)(d).
The mother’s evidence in chief consisted of her restating her interpretation of the orders, namely, that the children spend Easter with her on every even year.
The father then proceeded to cross-examine the mother. An unproductive argument concerning the correct interpretation of the orders consumed much of it. The mother revealed that she had taken the children to the handover point on the Tuesday following Easter Monday as she believed the school holidays and the father’s time with the children pursuant to order 5(i)(d)) began from this day. The father noted that he had informed the mother that he could not attend the police station at that time.
The father tendered an email message (Exhibit 1) from the mother dated 28 January 2013, in which the mother suggests the modification of the order concerning whom the children spend Easter with. The father suggested that this reveals that the mother was uncertain or unsure that her interpretation of the orders concerning Easter was correct. The mother replied that she only suggested the modification to put a stop to the father constantly litigating the Easter issue.
The father delivered his final submissions first. These submissions did not differentiate between the various counts contained within this application for contravention orders. In sum, the father restated his interpretation of the orders. He also suggested variations to the orders that could alleviate the difficulty concerning Easter.
The mother then delivered her submissions. She also reiterated her interpretation of the orders concerning Easter. She stated that she “firmly believe[d] that the intentions of the orders are for both parents to spend Easter with the children.”
The Second “Set” of Contraventions – Counts 3 and 4 (alleged to have occurred in April 2012)
Paragraphs 42 to 52 of the father’s affidavit filed on 16 July 2012 concern the second set of contraventions. They largely restate the technical matters concerning the interpretation of the orders favoured by the father as outlined earlier in regards to the first set of contraventions. The father goes on to state that, on this interpretation of the orders, the mother breached order 5(i)(c) (Count 1) and 5(i)(d) (Count 2) by not allowing the children to spend Easter with him during 2012.
Paragraph 8 of the wife’s affidavit filed 18 December 2012 responds to paragraphs 42 to 52 of the husband’s affidavit filed 16 July 2012. The mother uses her response to advance her interpretation of the orders by which the children spend Easter in even years with her.
In many ways, the oral submissions concerning the second set of contraventions mirrored the first set. This is unsurprising given the fact that both contraventions concern the issue of with whom the children are to spend Easter in even years. The second set of contraventions concern the interaction of orders 5(i)(c) (on alternate weeks, the children are to spend time with the father from the conclusion of school on Thursday until the commencement of school on Monday, with time with the father to begin at 9.00 am on Thursday if said Thursday is a Public Holiday and time to end on the following Tuesday at the commencement of school if the Monday is a Public Holiday) and 5(i)(d) (the children spend the first half of the April school holidays every year with the father from the conclusion of school on Friday until 5.00 pm on the second Saturday, with paragraph 5(i)(c) suspended during the operation of 5(i)(d)) with order 5(i)(g) (which provides the father with contact from 9.00 am Good Friday until 9.00 am on the following Tuesday in odd years).
The mother admitted this set of contraventions claiming her reasonable excuse based on her understanding of the orders to mean that the children are to spend Easter with her in even years. The implication of this interpretation is that orders 5(i)(c) and 5(i)(d) do not operate to exclude her from having these Easter periods.
The father produced transcript from a hearing before Justice Burr dated 27 October 2011, in which his Honour clearly noted that the orders as they stand do not give the mother alternate Easters with the children. His Honour went on to note that “that’s why [his Honour] was trying to promote the change” of the orders.
The parties did not differentiate between the different counts alleged in this application for contravention orders in their final submissions. As such, the final submissions of the father are summarised above at paragraph 64. Likewise, the final submissions of the mother are summarised above at paragraph 65.
Consideration of the father’s application for Contravention Orders
I consider the four counts that make up this application for contravention orders together as the reasonable excuse that the mother claims for her contravention is identical for all the counts.
The mother admits the contraventions that form the substance of this application for contravention orders. She claims to have a reasonable excuse for these contraventions. She must prove on the balance of probabilities that she had a reasonable excuse for this contravention. (Section 70NAF(1)—(2) and 70NDA(c)).
As I have already stated in relation to the mother’s first application for contravention orders, Section 70NAE of the Act provides a list of circumstances in which a person may be taken to have had a reasonable excuse for contravening an order. This is not an exhaustive list.
Subsection 70NAE(2) is once again applicable. The subsection provides that a person is taken to have had a reasonable excuse for contravening an order if the contravention occurred “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 “the Court is satisfied that the respondent ought to be excused in respect of the contravention.
I turn first to considering whether the mother actually did not understand the orders she has contravened. I find that the mother did genuinely believe that her interpretation of the orders was correct.
I now turn to consideration of whether the mother ought to be excused for her contraventions. I find that she should. As the mother noted in her oral submissions, Easter is a special time of year. I agree that the intention behind the Consent Orders as entered into on 27 February 2007 was not to prevent the mother from ever spending an Easter with her children. Given the ambiguity in the orders, it is understandable that the mother would prefer an interpretation by which she could spend this special time of year with her children every second year.
As such, I find that the mother has succeeded in establishing a reasonable excuse for contravening the orders of the Court as outlined in the father’s application for contravention orders on the balance of probabilities.
Conclusion
In summary, I note that I have found the following:
a)With regards to the mother’s first application for contravention orders, I found that the father contravened the orders on both counts without reasonable excuse.
b)With regards to the mother’s second application for contravention orders, I dismissed this application as the orders which formed the basis of this application were no longer operative at the time of the alleged contraventions.
c)With regards to the father’s application for contravention orders, I found that the mother had a reasonable excusing for contravening the four counts of contravention alleged in this application.
The parties have delivered submissions, both written and oral, as to potential changes to the existing orders. I will invite the parties to make further submissions before me on Wednesday 22 May 2013 at 2.15 pm as to any potential variations of the orders in light of the findings I have made in this judgment.
I direct the parties’ attention to section 70NBA of the Act, which allows me to vary parenting orders following contravention order proceedings. I also direct the parties’ attention to Subdivision F of the Act, given that this appears to be the second time the father has contravened order 5(i)(d) of the Act.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 1 May 2013.
Associate:
Date: 1 May 2013
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