Ongal & Materns
[2015] FamCAFC 68
•30 April 2015
FAMILY COURT OF AUSTRALIA
| ONGAL & MATERNS | [2015] FamCAFC 68 |
| FAMILY LAW – APPEAL – CONTRAVENTION – Where both parties admitted to breaching orders – Where the trial judge found that both parties misunderstood the orders, but excused the mother and not the father – The trial judge erred by overlooking the father’s attempts to use the appropriate court processes before breaching the orders – The trial judge erred in the exercise of her discretion – Appeal allowed in part – Mother’s contravention application dismissed and order for the father to enter into a bond discharged. FAMILY LAW – APPEAL – CHILDREN – Where the trial judge altered existing parenting orders after deciding contravention applications – The trial judge erred in relation to some of the orders made – Appeal allowed in part – Re-exercise of discretion. FAMILY LAW – APPEAL – COSTS – No orders for costs sought, but the father sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – The trial judge was not assisted by the way in which the matter was presented – The trial judge attempted to provide a new suite of orders with a view to reducing future conflict between the parties – Substantial public resources have already been devoted to the first instance proceedings – Request for costs certificate declined. |
| Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth), Schedule 3 Family Law Act 1975 (Cth) – s 70NAC, s 70NAE, s 70NAF, s 70NBA, s 70NEB, |
| Mallet v Mallet (1984) 156 CLR 605 Marsden & Winch (2013) FLC 93-560 Lovell v Lovell (1950) 81 CLR 513 Stanford v Stanford (2012) 247 CLR 108 |
| APPELLANT: | Mr Ongal |
| RESPONDENT: | Ms Materns |
| FILE NUMBER: | ADC | 2107 | of | 2007 |
| APPEAL NUMBER: | SOA | 3 | of | 2014 |
| DATE DELIVERED: | 30 April 2015 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Thackray, Strickland & Aldridge JJ |
| HEARING DATE: | 11 November 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 December 2013 |
| LOWER COURT MNC: | [2013] FamCA 945 [2013] FamCA 946 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
The father’s application in an appeal filed on 27 October 2014 be allowed only to the extent that he be permitted to introduce as further evidence in the appeal a copy of the order made on 5 February 2014.
The appeal filed on 2 January 2014 be allowed in part.
Paragraphs 12 and 13 of the orders made on 4 December 2013 (dealing with the mother’s contravention application and requiring the father to enter into a bond) be set aside.
The mother’s contravention application filed on 13 July 2012 be dismissed.
The parenting orders made on 4 December 2013 be amended as follows:
(a)Subparagraphs 3(a) and 3(b), as amended by the order made on 5 February 2014, be amended by replacing “8.25 am” with “8.50 am or ten minutes before the commencement of school (whichever is the earlier) on” in both instances.
(b)Subparagraphs 3(d) and 3(e) be amended by deleting the words “the Saturday closest to” before the words “the midpoint” in both instances.
(c)Subparagraph 3(f) be amended by replacing “5.00 pm on the following Easter Monday” with “8.50 am on the following Easter Tuesday or ten minutes before the commencement of school on that day (whichever is the earlier)” in both instances.
(d)Paragraph 7 be discharged and substituted with the following paragraph:
Each party shall keep the other informed as to the names and contact details of the children’s medical professionals. The father shall ensure that the children attend the same medical practitioner as nominated by the mother when the children are in [Town W]. If the children attend a medical practitioner outside [Town W] whilst in the father’s care, the father shall notify the mother in writing, provide details of any advice received and medication prescribed, and authorise the medical practitioner to speak with the children’s medical practitioner in [Town W].
(e)Paragraph 9 be amended by replacing “Friday” with “Thursday”.
The appeal is otherwise dismissed.
There be no order for costs in relation to the appeal.
The father’s oral application for a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) be dismissed.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 3 of 2014
File Number: ADC 2107 of 2007
| Mr Ongal |
Appellant
And
| Ms Materns |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Ongal (“the father”) against orders made by the Honourable Justice Dawe on 4 December 2013. The orders arose out of contravention proceedings concerning the two children of the father’s marriage to Ms Materns (“the mother”): L, born in June 2001; and M, born in May 2004. The mother opposes the appeal.
The appeal challenges:
·the trial judge’s decision not to excuse the father’s contravention of a parenting order, despite having found that he misunderstood his obligations under the order;
·the trial judge’s decision to excuse the mother’s contravention of a parenting order because she misunderstood her obligations under the order; and
·variations to parenting orders following the resolution of the contravention proceedings.
There were originally 97 grounds of appeal, but at the hearing, these were distilled down to 10, the last of which was abandoned (appeal transcript, p 77).
The relevant orders
The parenting orders said to have been contravened were made by consent on 27 February 2007. Since then, the father has been commuting on a weekly basis from his home in Adelaide to spend time with the children, who live with the mother in Town W, nearly 400 kilometres away.
The orders, which were varied slightly on 4 June 2008, provide for the father to spend time with the children during school terms on a fortnightly schedule. In the first week, the father has the children each Thursday night; and in the second week, he has them from Thursday afternoon until the following Monday morning. Handovers occur at the children’s school or at the W Police Station. During his alternate weekends with the children, the father has historically taken them to Adelaide after school on Friday, and returned them to Town W early on Monday morning.
The orders provided for an equal sharing of the Christmas holidays. Relevant to this appeal, however, they provided as follows for the other school holidays:
5. That the said children do spend time with the father as follows:
i) as to [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 [in relation to the father’s time during the school term] shall be suspended during such school holiday periods and Christmas school holiday periods;
…
g)from 9.00 am on Good Friday, 2007 until 9.00 am on the following Tuesday and each alternate Easter thereafter;
ii) as to [M]
…
l)… for all school holiday periods and Easter and Christmas and Father’s day and on his birthday at the same times as ordered for [L]; …
The parties could not agree who was to have the children when Easter falls in the first half of the April school holidays. The mother thought she was entitled to have them every Easter in even-numbered years, whereas the father (correctly) understood that the order was worded to allow her to have them in even-numbered years only if Easter did not fall in the first half of the April holidays. In support of his interpretation, the father drew attention to the fact that whilst the orders provided for the suspension of some of his time with the children, there was no suspension of his time during Easter when it falls in the first half of the holidays.
The variation of the orders on 4 June 2008 did not address this key issue. However, relevantly to one minor part of the appeal, the 2008 orders provided:
6. That paragraph 5 of the Orders made herein on 27 February 2007 be amended to record:-
A. That wherever it states 9.00 am or the commencement of school, 8.50 am is to be substituted.
B. That wherever it states the conclusion of school, 3.25 pm is to be substituted.
7. That paragraph 5ii)(l) of the Orders made herein on 27 February 2007 be amended as follows:-
… for all school holiday periods, Monday Public Holidays, Easter, Christmas and Father’s Day at the same times as ordered for [L] provided that the father shall return [M] to the mother between the hours of 8.50 am until 5.00 pm on Mother’s Day in each year.
Events relevant to the alleged contraventions
The following summary is largely drawn from the reasons of the trial judge, supplemented by matters which we understand to be common ground.
There were three contravention applications filed in the first year of operation of the 2007 orders. The first, filed by the father in July 2007, was resolved without a hearing. The second, filed by the mother in September 2007, was resolved on the basis of all counts being dismissed, save for one the father admitted. The third, filed by the father in November 2007, was dismissed.
On 16 April 2008, Burr J made an injunction restraining the parties from filing further applications (of any nature) without leave.
Good Friday in 2010 fell on 2 April, which was also the first day of the April holidays. The father travelled to Town W to collect the children on Maundy Thursday, with the intention of returning them on Saturday, 10 April 2010, at the end of the first half of the holidays. However, believing she was entitled to have the children for Easter, the mother retained them until Tuesday, 6 April 2010. By this time, the father had returned home and could not collect the children. He says that the mother refused to allow him make-up time in the second week of the holidays and made no effort to bring the children to Adelaide (affidavit filed 16 July 2012, at [41]). Consequently, the father did not see the children again until after the new school term had commenced.
The father did not seek to file a contravention application immediately, claiming that he wanted to “resolve issues … through negotiation and by agreeing compensation” (affidavit filed 16 July 2012, at [54]). The mother eventually allowed him an additional night on 30 April 2010, to make up for Thursday, 1 April 2010, to which the father was thought to be entitled as part of the regular fortnightly rota.
Having missed out on time with the children in the April 2010 school holidays, the father kept them for the whole July 2010 holidays. He claims the mother agreed to him doing so (affidavit filed 16 July 2012, at [59]). However, the mother filed a contravention application on 12 July 2010, and she denies there was any such agreement (affidavit filed 18 December 2012, at [10]).
In a hearing before Brown FM (as his Honour then was) on 17 March 2011, the father admitted the July 2010 contravention, entered into a 12 month good behaviour bond of $500 and was required to allow the mother make-up time. The father later claimed that he only admitted the breach on legal advice (affidavit filed 16 July 2012, at [67]-[69]). He also observed that the mother filed the contravention application without leave (affidavit filed 16 July 2012, at [64]).
On 25 July 2011, the father filed a contravention application in relation to the mother’s retention of the children at Easter 2010. This application was struck out on 9 August 2011 because the father had not sought leave to file it.
The mother claims that Burr J made consent orders on 27 October 2011 which had the effect of suspending the father’s time in the first half of the April holidays in even-numbered years if Easter fell in that week (affidavit filed 18 December 2012, at [4]). However, the father correctly asserted that Burr J had merely distributed draft consent orders for comment, to which the father did not agree. On 14 June 2012, Registrar Paxton confirmed, by a notation on an order, that there was “no finalised sealed copy of the proposed order [of Burr J] on file”.
Good Friday in 2012 fell on 6 April, which again was the first day of the April school holidays. After the children reported that the mother intended to keep them for Easter, the father attempted to file an application seeking an order restraining the mother from denying him time with the children. Leave to file this application was refused.
On Thursday, 5 April 2012, the mother sent the father a message confirming she would not hand the children over until Tuesday, 10 April 2012. The father cancelled his flight to Town W and arranged for a friend to wait at the W Police Station that afternoon. After his friend confirmed that the mother had not attended the Police Station, the father filed an application for leave to file a contravention application, but the registry refused to accept his associated application for a recovery order.
The father collected the children on 10 April 2012, and then refused to return them until Sunday, 22 April 2012. The mother filed a contravention application on 13 July 2012, claiming the father had contravened the orders by not returning the children on 14 April 2012, being the end of the first half of the holidays. The father says he retained the children “so that they could have a full week in Adelaide as intended” (affidavit filed 7 August 2012, at [14]).
On 16 July 2012, after obtaining leave, the father filed a contravention application in relation to the mother’s retention of the children at both Easter 2010 and Easter 2012. The father claims that, until then, he had been “blocked by various court events” from having his complaint about Easter 2010 considered (affidavit filed 16 July 2012, at [71]).
At trial, both parents admitted the counts of contravention described above. On 1 May 2013, Dawe J delivered reasons in which she found that both parents had misunderstood the orders. She went on to find, however, that the father should not be excused for his breach, while the mother should be excused for hers. Her Honour adjourned to another date for submissions about penalty and possible changes to the orders. On 4 December 2013, her Honour made the orders that are the subject of the appeal and delivered further reasons.
The applicable law
We will first summarise the relevant law, which is laid down in Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 70NAC provides that a person bound by a parenting order is taken to have contravened it if he or she has “intentionally failed to comply” or “made no reasonable attempt to comply”.
Section 70NAE sets out the circumstances that can constitute a “reasonable excuse for contravening an order”. The excuse relevant to this appeal is as follows (original emphasis):
(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.
Section 70NAF provides that the standard of proof to be applied (including on the question of whether there was a reasonable excuse) is “proof on the balance of probabilities”, except when certain harsher penalties are to be imposed, in which case the court must be satisfied “beyond reasonable doubt that the grounds for making the order exist”. These harsher penalties are available for “more serious” contraventions, which include contraventions by a person who has previously been sanctioned for a contravention. However, the court has a discretion to deal with such contraventions as “less serious” if it is satisfied that course is “more appropriate”.
The court can vary a “primary order” even if it finds that the respondent did not commit a contravention of that order: s 70NBA. If a contravention is proven and there is no reasonable excuse, the court can make a range of orders, including for the respondent to enter into a bond: s 70NEB and s 70NFB.
Grounds 1, 2 and 3 – Contravention of the orders by the father
The first three grounds of appeal relate to the contravention by the father in the April 2012 holidays.
1.The trial judge denied the father procedural fairness by persuading him to admit he was in breach of the order relating to school holidays in April 2012 in circumstances where the father was not in breach of the order.
2.If, contrary to Ground 1, the father had contravened the order, having found the father had a reasonable excuse because he did not understand the obligations imposed by the order, the trial judge erred in the exercise of her discretion in finding that he should not be excused in respect of the contravention, given that:
a.over a period of many years, the father had been found to have contravened only one (unrelated) order;
b.the father’s contravention of the order was designed to, and achieved, the original intention that the holiday periods would be shared equally; and
c. the father had made every endeavour to use the processes of the court to deal with the mother’s own breach of the order which had precipitated the father’s contravention.
3.In determining that the father should not be excused in respect of the contravention, the trial judge erred in:
a. finding that the father’s belief as to the meaning of the order, once contravened, was illogical; and
b. placing weight on that finding even if the finding was available.
Ground 1 was abandoned after the father accepted during argument that he had contravened the orders. Therefore the only issue was whether he should have been excused in respect of the breach, pursuant to s 70NAE(2) of the Act.
Ground 2(a) contains a factual error in that it asserts the father had only been found guilty of one contravention prior to the contraventions that are the subject of the appeal, when he had in fact been found guilty of two.
The first breach was the one in 2007, mentioned at [10] above, which related to the father videotaping the mother to prove she was contravening an order (transcript, 4 September 2013, p 13). However, as recorded at [15] above, there was a later breach, being the one dealt with by Brown FM in 2011 pertaining to the July 2010 holidays. (Out of fairness to the father, we contributed to this error when assisting him to reframe his 97 grounds.)
Trial judge’s reasons relevant to Grounds 2 and 3
In her reasons of 1 May 2013, the trial judge dealt with the April 2012 breach in the following terms (original emphasis, document references omitted):
Evidence and submissions of the parties concerning the mother’s … application for Contravention Orders
…
35.… 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 [sic] … 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”.
36.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.
…
38.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”.
…
Consideration of the mother’s … application for Contravention Orders
40.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)).
…
42.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”.
43.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)”
44.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.
45.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.”
46.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.
47.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’.”
48.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.
The mother had submitted that this contravention should be dealt with as “more serious” due to the father’s previous contraventions. However, in her reasons of 4 December 2013, the trial judge dealt with the contravention as “less serious”, saying that the “broader armoury of orders” available for “more serious” contraventions was not “needed” in the circumstances (at [60]). Her Honour determined that the father should be placed on a $1,000 good behaviour bond for two years.
Discussion of Grounds 2 and 3
The father submitted that, in failing to excuse him from the consequences of breaching the order, her Honour overlooked the fact that he had made every endeavour to use proper court processes to deal with the mother’s own breach in the same holiday period, including the contravention process. He contended that her Honour therefore erred by penalising him for taking matters into his own hands, instead of using the court processes.
We accept there was evidence before the trial judge about the father’s attempts to utilise appropriate court processes. His affidavit filed on 16 July 2012 in support of his contravention application stated:
46.On 30th March 2012, I filed an urgent application seeking an injunction to prevent the mother contravening my contact on Thursday 5th April 2012, and for the first weekend of the April school holidays. I was denied leave to file this, and was asked to amend it on the basis that a contravention had not yet occurred. …
…
50.On receiving this call and sms [from his friend who waited at [W] Police Station], I filed an urgent application at the Adelaide Registry for a Recovery Order and for leave to file a contravention application against the mother. I was informed by the Adelaide Registry that the recovery part would not be accepted, and I deleted this so that the application for leave could progress. I was given no reason as to why a Recovery Order would not be supported by the court…
Further, the father’s affidavit filed on 7 August 2012 in response to the mother’s application stated:
16.I should also note in my defence, that given … the historical and assumed future barring of my access to Family Court Contravention, Injunctive and Recovery Proceedings (which might have prevented the April 2012 contravention), it was reasonable for the father to provide the mother with unpalatable consequences for her actions, so that she would act differently next time and not destabilize the children’s contact. …
The father also referred to his attempts to use the court process during his closing submissions before the trial judge (transcript, 12 March 2013, p 36).
The legislation is silent on the matters a court should consider in deciding whether someone ought to be excused from a contravention pursuant to s 70NAE(2)(b) for misunderstanding an order. The discretion is therefore of considerable breadth and, to adopt the expression used in Stanford v Stanford (2012) 247 CLR 108 at [36], “it is not possible to chart its metes and bounds”.
In our view, her Honour was entitled to take into account what the “correct approach” to the mother’s breach should have been; however, in doing so, we consider her Honour should have placed some weight on the fact that the father did make a concerted effort to pursue that approach. Her Honour’s failure to refer to these efforts leaves us in doubt as to whether there was consideration of all the matters relevant to s 70NAE(2), and in particular to subsection (b).
While recognising the breadth of the discretion, we consider her Honour misdirected herself, at [46], by placing weight on what she considered was a lack of logic in the father’s understanding of the orders. This would have been an entirely proper matter to take into account in determining whether the father truly misunderstood the order; however, her Honour had already found that he genuinely did not understand that his obligation to share the school holidays continued after the mother’s breach.
In any event, while we accept that the father’s interpretation of the order was wrong, we are not convinced it was illogical. He correctly understood that the effect (and apparent intention) of the orders was for the children to spend half of all school holidays with him. Having been denied time with the children for what he properly understood to be “his” half of the holidays, there was at least some logic in his belief that he should have them for the other half.
For these reasons, we have concluded that her Honour’s discretion miscarried.
The father asked us to re-exercise her Honour’s discretion on any matters where we identified error. The mother had no objection to this course. Clearly it is desirable we bring this matter to finality. We therefore propose to redetermine the matter.
Accepting her Honour’s finding that the father genuinely misunderstood his obligations under the terms of the order, we propose to excuse the father from the contravention pursuant to s 70NAE(2)(b). We do so for the following reasons:
·the father first endeavoured to follow the proper court processes to deal with the issue, but those processes were not successful in ensuring the children could spend half of the relevant holidays with him;
·although the father’s actions constituted a breach, they gave effect to the spirit of the orders, namely that holidays be shared equally; and
·the orders had been in operation for many years, with only two findings of contravention by the father, one of which was an unrelated breach.
In considering the last of these factors, we accept that earlier findings of contravention are a matter primarily relevant to penalty; however, we consider they can also have relevance to the existence of a reasonable excuse. First, an earlier finding of contravention could be relevant to the issue of whether the party genuinely misunderstood their obligation, but her Honour accepted the father misunderstood the order. Secondly, the absence of a serious history of contraventions provides some basis for considering that the father largely understood his obligations under the terms of the orders and should not, for example, have been expected to study the orders more carefully or seek further legal advice about their meaning.
Finally, for reasons to follow, we do not propose to interfere with her Honour’s decision to excuse the mother from her contravention, notwithstanding that the mother had been informed by Burr J that her interpretation of the order was wrong (transcript, 27 October 2011, p 32). We also consider there is a strong basis for the contraventions by each parent to be treated in the same way, given that each parent genuinely misunderstood the meaning of the orders and acted in a way they considered would give effect to the intention of the orders.
Grounds 4, 5 and 6 – Contravention of the orders by the mother
Grounds 4, 5 and 6 related to the contravention of the orders by the mother at Easter 2010 and Easter 2012.
4. The trial judge’s finding that the mother genuinely believed she was entitled to have the children with her at Easter 2010 and 2012 was against the weight of the evidence and her Honour therefore erred in finding that the mother had a reasonable excuse for contravening the order.
5.In the alternative, the trial judge erred in excusing the mother in respect of the contravention by erroneously concluding that:
a.the order was ambiguous;
b.the mother would never be able to spend time with the children at Easter if the order was interpreted literally; and
c. the intention of the order was to allow the mother to spend every second Easter with the children.
6. In the alternative, the trial judge erred in:
a. finding that the mother’s asserted reasonable excuse was “identical” for all four breaches alleged as she had not offered any explanation why she was entitled to retain the children during the relevant periods save for the period from 9 am on Good Friday until 9 am on the following Tuesday; and
b. as a consequence, failing to find that the mother did not have a reasonable excuse for retaining the children outside that period.
The mother admitted that she contravened the orders. In her reasons of 1 May 2015, the trial judge dealt with the mother’s contraventions in the following terms (original emphasis, document references omitted):
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)
…
55.… The mother contends [in her affidavit] 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.
…
59.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.
60.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.
61.The father tendered an email message 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.
…
63.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)
…
66.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 on even years. …
67.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.
68.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.
69.The parties did not differentiate between the different counts alleged in this application for contravention orders in their final submissions. …
Consideration of the father’s application for Contravention Orders
70.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.
71.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)).
72.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.
73.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.
74.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.
75.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.
76.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.
Ground 4 – Finding against the weight of the evidence
Ground 4 asserts that the finding that the mother genuinely misunderstood the relevant order was against the weight of the evidence.
The circumstances in which an appellate court can interfere with a primary judge’s decision, based only on matters of weight, are very limited. They were discussed by Gibbs CJ in Mallet v Mallet (1984) 156 CLR 605 at 614, where his Honour approved the following exposition of the relevant principle by Latham CJ in Lovell v Lovell (1950) 81 CLR 513 at 519:
If completely irrelevant considerations have been taken into account and they have really affected the decision the case is clear, and the order, though made in the exercise of a discretion, should be set aside. Similarly, if relevant considerations are plainly ignored the same result follows. But when the appellate tribunal is considering questions of weight it should not regard itself as being in the same position as the learned trial judge. In the absence of exclusion of relevant considerations or the admission of irrelevant considerations an appellate tribunal should not set aside an order made in the exercise of a judicial discretion ... unless the failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court.
This principle must have even greater force here, where the preliminary question to be determined was the mother’s subjective understanding of the meaning of an order. Her Honour was uniquely well placed to answer that question. In doing so, she recorded, and therefore no doubt did not overlook:
·the father’s evidence about the mother seeking to have the orders for Easter amended (but her Honour also recorded the mother’s explanation for having done so, which did not amount to an acceptance by the mother that her interpretation of the orders was incorrect);
·the fact that Burr J had previously informed the parties that the orders did not permit the mother time with the children every second Easter (but her Honour recorded, and did not reject, the mother’s evidence that she thought Burr J had amended the orders); and
·the fact that Registrar Paxton had noted on a court order that Burr J had not amended the orders (but we were not taken to any evidence to establish that the mother was aware of this notation, or understood it if she was aware of it).
All of these matters occurred after Easter 2010 and could therefore not have any bearing on her Honour’s finding about the mother’s understanding of the order in that year. However, even taking into account those matters, we consider it was still open for her Honour to find that the mother remained under a genuine misapprehension about the meaning of the order at Easter 2012.
The father referred to other matters to which the trial judge did not refer in her reasons, which he considers should have led her Honour to arrive at a different conclusion concerning whether the mother understood her obligations (for example, in Ground 20 of his original 97 grounds of appeal). It was not necessary, in our view, for her Honour to engage with the minutiae of the father’s submissions. It is apparent she recorded those factual matters which she considered most relevant in arriving at her own assessment of the mother’s understanding, and we are not persuaded she overlooked any material matter.
We therefore find no merit in Ground 4.
Ground 5 – Erroneous findings and assumptions
Ground 5 attacks the findings and assumptions made by her Honour at [75] in determining that the mother should be excused in respect of the contravention.
The father’s first complaint here is that her Honour erred in referring to “the ambiguity in the orders”. He argues that the orders were not ambiguous. We accept there is some merit in that argument. If the orders were “ambiguous” in the strict meaning of that word, then the mother could not have been properly found to have contravened the order.
Notwithstanding her Honour’s statement at [44] that the father’s understanding of the orders was not “necessarily correct”, we consider there is only one available interpretation of the terms of the order relating to Easter, namely the interpretation advanced by the father. However, we do not consider this advances the father’s complaint, since our reading of her Honour’s remark about “the ambiguity in the orders” relates not to the strict meaning of the orders, but rather the discrepancy her Honour considered existed between the wording of the orders and the parties’ intentions. Accordingly, we find no merit in Ground 5(a).
Grounds 5(b) and 5(c) attack the trial judge’s finding that the “intention behind the Consent Orders … was not to prevent the mother from ever spending an Easter with her children”. In context, it is apparent her Honour considered that the intention was to permit the mother to have the children each alternate Easter. We accept this might have been the case, but on the other hand, it could equally have been thought that the intention was for the father to have the children for half of all holidays.
It is not possible for both of these intentions to be carried into effect, given the absence of any provision for “make-up time” in those even-numbered years when Easter falls in the first half of the holidays. Her Honour’s basis for concluding it was intended that the mother have every second Easter was because it is “a special time of year” (at [75]). This is true but, equally, school holidays were no doubt a “special time” for the father, as he only had a few times a year in which he could spend more than a few days with the children.
The fact that the orders contained specific provision for the suspension of some of the father’s times with the children, but no such provision for Easter, can logically only mean one of two things. Either it was intended there would be no such suspension, or the parties (or their legal advisers) overlooked that Easter can fall in the first week of the April holidays. Absent any other evidence that may have been accepted by the trial judge (and not referred to in her reasons), we do not consider it was open to her Honour to go behind the terms of the orders with a view to determining the “intention” of them. This is because it would be unsafe to make assumptions about what the mother might have been prepared to give up to achieve the settlement reflected in the terms of the orders.
Her Honour also erred in accepting the mother’s argument that she would never have Easter if the father’s argument was correct. This is not the case, as Easter does not always fall during the South Australian school holidays.
For these reasons, we accept there is some merit in the propositions underpinning Grounds 5(b) and 5(c). Again, however, we do not consider this undermines the decision to excuse the mother, since the fact remains that it was still open to her Honour to find that the mother misunderstood her obligations. In this context, what was important was not her Honour’s understanding of the intention behind the orders, but rather the mother’s understanding; and it was open to her Honour to accept that the mother understood the orders allowed her to have every second Easter. Similarly, it was the mother’s misapprehension about never being allowed to spend Easter with the children which was important, not the fact her Honour may have shared this misapprehension.
Thus, while there is some merit in the arguments advanced under these grounds, they do not provide a basis for interfering with her Honour’s decision.
Ground 6 – Maundy Thursday
In order to understand Ground 6, it is necessary to appreciate that the father made two complaints of contravention in relation to each of the Easter periods that the mother retained the children. The first complaint was directed at the mother’s failure to allow him to have the children on the Thursday night before Easter, while the second was directed to her failure to allow him the first week of the school holidays.
The gravamen of the complaint here is that the trial judge should have recognised that even if the mother was entitled to have the children each alternate Easter, the father was entitled to have them on Maundy Thursday because he always has them on Thursday nights during school terms. Allied to this proposition was the fact that the father’s time at Easter did not commence until 9.00 am on Good Friday, and therefore, if the mother was to have equivalent time, she did not need to keep the children on the Thursday night.
While the trial judge recorded that the mother’s excuses in relation to each of the contraventions was “identical”, the father argued this was not correct, since the mother’s reason for keeping the children on the Thursday was to stop the father keeping them over Easter. We accept there is merit in the father’s submission, and we also accept that her Honour therefore failed to pay attention to the fact that the father had deliberately divided his complaints so as to draw attention to the separate issue raised in relation to the Thursday visit.
While we accept that the failure to address the Thursday night issue separately might be seen as constituting error, for the reasons that follow we would not interfere with her Honour’s decision to dismiss the father’s contravention applications relating to the two Thursday nights (one of which has been the subject of a private arrangement for “make-up time” anyway).
Although the issue was not properly addressed in submissions before us or (as far as we are aware) before the trial judge, we are not persuaded that the father was, in fact, entitled to have the children on the Thursday nights before Easter in 2010 and 2012. As we noted earlier, subparagraph 5(i)(d) of the 2007 orders provided for the suspension during school holidays of the father’s time prescribed by subparagraphs 5(i)(b) and 5(i)(c). These are the two parts of the orders laying down the regular fortnightly schedule, which includes the Thursday nights. If the two Thursday nights in question fell in a “school holiday period”, then it seems to us that the father would not have been entitled to spend time with the children.
The question therefore turns on the time at which the school holidays are deemed to have commenced. We know this issue has caused controversy over the years, with some parents arguing that holidays commence the moment the children leave school on the last day of term, and others arguing they commence after the weekend of the last week of school. While we have a preference for the former proposition (and we doubt many school children would argue with it), it is unnecessary to decide the point in order to dispose of the argument here, since subparagraph 5(i)(d) clearly shows that the parties accepted that the holidays included the weekend at the end of the last week of school. Accordingly, subparagraphs 5(1)(b) and 5(1)(c) were suspended at the time the father says the mother breached them. For this reason, the father’s contravention applications directed specifically at Maundy Thursday would not have succeeded, even if her Honour had given them separate consideration.
No issue arises in this appeal relating to the part of the father’s contravention application which concerns the mother’s failure to deliver the children up to him on the Tuesday following Easter in 2010, given the finding (trial judge’s reasons of 1 May 2013 at [60]) about his unavailability to collect them from Town W at that time.
For these reasons, we do not propose to interfere with her Honour’s finding that the mother should be excused in relation to her contravention of the orders.
Changes to the parenting orders
Grounds 7, 8 and 9 relate to the parenting orders her Honour made on 4 December 2013 after determining the contravention proceedings.
7.The trial judge erred in law in varying any of the parenting orders pursuant to s 70NBA, save for the specific orders which had been the subject of the contravention proceedings and save for orders to which the parties consented.
8.The trial judge denied the father procedural fairness by not permitting him an opportunity to make submissions in relation to the new form of parenting orders proposed by the mother.
9.In the alternative, in making the parenting orders the trial judge:
a.failed to take into account the matters in s 60CC of the Act;
b.made orders which were inconsistent and/or ambiguous;
c. failed to explain the proper operation of the orders as required by s 70NAE(3); and
d. failed to deal with all of the orders the father had sought.
The father originally argued that the trial judge was not entitled to make any variations to the orders pursuant to s 70NBA, other than those specifically the subject of the contravention applications. The argument drew attention to the uncertainty, which had been referred to by the trial judge, about the extent of the Court’s power under this section. However, we are not required to determine that issue because the father conceded that her Honour had power to make the orders in contention without reference to s 70NBA, due to the way the case was presented. In light of this concession, Ground 7 was abandoned.
Ground 8 was also abandoned and therefore requires no discussion.
We do not propose to discuss Ground 9(c), even if the factual assumption made in it is correct. Any failure of the trial judge to explain the operation of the orders would not vitiate any of the orders she made. In any event, the order that required explanation was amended by her Honour in a way that was perfectly intelligible.
We also do not propose to discuss Grounds 9(a), 9(b) and 9(d) as standalone issues. Matters arising under those grounds will be sufficiently considered when we come to the complaints about the parenting orders made (or not made).
The father claimed in Ground 54 that the trial judge had been influenced by the set of proposed orders that Burr J circulated in October 2011. In retrospect, we accept that this complaint was not adequately encapsulated in our effort to assist the father to narrow his grounds of appeal. However, the complaint is based on a misreading of [182] of the reasons of 4 December 2014, where her Honour states clearly that she had not considered the October 2011 draft orders, but rather had considered the orders put forward to her by the parties.
Having clarified that matter, we now turn to consider each of the new orders made by her Honour about which the father complains.
Orders 3(a) and 3(b) – Contact concluding at 8.25 am instead of 8.50 am
By subparagraphs 3(a) and 3(b), the trial judge laid down a regime designed to continue the regular fortnightly schedule, with each visit to conclude at 8.25 am on the last day of the visit.
In her reasons, the trial judge said that, on 4 June 2008, Burr J varied the original orders for the fortnightly regime “such that references to ‘9.00 am’ or ‘commencement of school’ were substituted with a reference to ‘8.25 am’” (at [127], original emphasis). Her Honour erred in making this observation. Burr J’s order actually provided that “wherever it states 9.00 am or the commencement of school, 8.50 am is to be substituted” (emphasis added).
The father protested about the impact of the earlier finish time on him and the children, given that they travel from Adelaide to Town W each alternate weekend on the morning the children are due to be returned.
Although the mother conceded that neither party asked the trial judge to change the finishing time of the visits from 8.50 am to 8.25 am, she was not prepared to concede any error by the trial judge, and sought to justify the amendment of the time by reference to matters which were not before her Honour.
Given the absence of reasons for having the visits conclude at 8.25 am, and given that her Honour was under a misapprehension about the terms of the existing orders, the appeal against this order must be allowed.
In re-exercising the discretion, we note the father’s claim that the orders require him to deliver the children to school before the school gates have opened, although we also note his acceptance of the fact that L would be starting school at 8.30 am in 2015 (appeal transcript, pp 52, 55 and 90).
Given what is now conceded about L’s start time, we propose to vary the original orders to provide that the father’s time with each child will conclude at 8.50 am or ten minutes before the commencement of school, whichever is the earlier. For the avoidance of doubt, we record that the effect of this order is that the father can keep M for a little longer at the end of the visit until such time as he has the same school hours as L.
Orders 3(c)(i) and 3(c)(ii) – Suspensions of contact orders
The father was critical of the trial judge for varying the phraseology used in the original orders. In particular, he argued that the orders “introduce a large number of ambiguities as regards suspensions of various orders”, although he was reluctant to say what these were for fear that he would reveal to the mother “the most advantageous scenarios for her to exploit” (Ground 66). He argued that after seven years of legal discussions and contravention proceedings, the parties knew what their obligations were under the old orders, and that any variation in the wording of the orders was undesirable and could lead to further proceedings. The mother said that the wording of the new orders was clear.
In Grounds 67, 68 and 70, the father sought to explain what he considered was some of the ambiguity in the form of wording her Honour used. We have carefully studied the father’s complaints and the terms of the orders, and we are unable to detect any ambiguity. If the father cannot understand them, he should seek legal advice.
Ground 71 was expressed in the following terms (as amended by the father in a spreadsheet he used in the course of argument):
Mothers and Fathers Day needs to be included in order 3(c) because of the new form of this order in order 3(g) otherwise numerous issues arise. For example, on the weekend of Mothers Day, if the father has contact on the Thursday as per order 3(b), then he potentially has contact until 3.25pm on Friday when it passes to the mother, and the father has to remain in [Town W] from 8.50am until 3.25pm on Friday in case of issue or emergency rather than returning to Adelaide. However, given that order 3(b) is not suspended in order 3(i)(c) on Mothers Day weekends, then potentially the Mother only gets Mothers Day on the weekends that order 3(a) instead operates.
We do not follow the last point made by the father in Ground 71 since the mother is clearly entitled under subparagraph 3(g) to have the children every Mother’s Day weekend from the Friday afternoon until the Monday morning.
However, the father is right in saying that, if he would otherwise have been entitled to the children on the weekend of Mother’s Day pursuant to subparagraph 3(b), then he will now theoretically have the children in his care from 3.25 pm on the Thursday until 3.25 pm on the Friday before Mother’s Day. However, as the children would be going back to school on the Friday morning, we see no obligation on the father to remain in Town W until 3.25 pm on Friday. His obligation is to ensure proper arrangements are made for the children during any time he is entitled to have them in his care, and he fulfils that obligation by delivering them into the care of their school.
There are limits beyond which a judge should not be required to go in attempting to craft orders to minimise disputation between parents who seem determined to find ways of aggravating each other, even years after separating. A judge is entitled to assume common sense would prevail in circumstances such as those the father describes. If, on the very rare occasions when this scenario arises, the father wishes to leave Town W after dropping the children at school on the Friday before Mother’s Day, the father could advise the school to contact the mother in case of any emergency that day. It is hard to imagine the school would not do so in any event, knowing that the mother is the parent who lives in the town.
Orders 3(d) and 3(e) – Handover during the Christmas school holidays
The 2007 orders provided for the children to spend time with the father for the first half of the Christmas school holiday period in each year “commencing from the conclusion of school on the last Friday of term until 5.00pm on the day being the midpoint of such period”.
Subparagraphs 3(d) and 3(e) of the orders made by Dawe J permit the father to have the children for the first half of the Christmas school holidays in one year and the second half in the following year. This change is not controversial, save that the father was aggrieved that the wording of the amendment meant the children spent Christmas 2013 with the mother, when it was his turn to have them at Christmas that year. The father does not pursue that issue, but he does say that her Honour erred in ordering that the handover occur on “the Saturday closest to the midpoint” of the Christmas holidays.
The father complained that this change in terminology had not been sought by either party; had the potential to create confusion about where the midpoint fell; and would not result in the holidays being shared equally, which was the agreed position of both parties (Ground 62).
Her Honour gave no reasons for departing from the earlier wording relating to the handover. The father submitted there was no evidence to suggest that the parties had ever previously had difficulty determining which day constituted the midpoint. The mother did not dispute this assertion.
In these circumstances, we consider there is merit in the father’s complaint. The appeal on this issue will be allowed and the original wording reinstated.
Order 3(f) – Alternating Easter visits and start time of the visits
As recorded earlier, the 2007 orders provided for the father to have contact with the children from Good Friday to Easter Tuesday in odd-numbered years, without making specific provision for the mother to spend time with the children at Easter. Dawe J determined that the parents should share Easters equally by having the children in alternating years.
The effect of her Honour’s order was that if Easter fell during the first week of the April school holidays in an even-numbered year, the father’s time would be curtailed to allow the mother to have time with the children. The trial judge further determined that the Easter weekend would commence at 3.25 pm on Maundy Thursday rather than 5.00 pm on Good Friday, and conclude at 5.00 pm on Easter Monday rather than 8.50 am on Easter Tuesday. Her Honour said that these amended times were “simpler and thereby less likely to cause confusion” (at [142]).
The father argued that her Honour failed to take into account that this order could mean that there could be a “very long break” in the children’s contact with him before Easter (Ground 64). This submission is based on the proposition that the earlier start time for Easter (i.e. commencing on Maundy Thursday rather than Good Friday) means the father misses out on his regular Thursday night, when the effect of the original orders was to allow the children to see the father every week during school terms.
We accept that the change in the start time of the Easter visits means the children will (on the rare occasions it might occur) miss one overnight visit with their father. However, given all of the earlier disputation arising out of the visits starting on Good Friday rather than Maundy Thursday, we consider that the order made by her Honour was eminently sensible.
In any event, we note that in his oral submissions in reply, the father somewhat surprisingly said, “I’ve never had a problem with the mother having alternate Easter”. He went on to say, “I just want to make sure that it’s a mechanism that does not result in me driving all over the place…” (appeal transcript, p 99). The order made by her Honour seems to achieve that effect, as it frees the father from any obligation to travel all the way to Town W and back for a one night visit immediately prior to Easter.
We consider that it was well within the ambit of her Honour’s discretion to determine that the children should spend each alternate Easter with the mother, notwithstanding that on the proper interpretation of the 2007 orders, the father would have been entitled to have the children for the majority of the Easter periods. We accept it would have been open to the father to ask that he have the second half of the holidays in the years when the mother has the children for Easter during the first half of the holidays, but this was not sought. Such an order would, of course, have added yet another layer of complexity.
There is no merit in this complaint.
Order 3(f) – Time at which Easter visits end
The father complains that the Easter contact visits will now end at 5.00 pm on Easter Monday rather than 8.50 am on Easter Tuesday. As we understand his argument in Ground 69, the new time means that:
·if Easter does not fall during school holidays; and
·if it is the mother’s turn to have Easter; and
·if Easter falls on a weekend that would otherwise have been the father’s turn to have the weekend with the children pursuant to subparagraph 3(b),
then the father would have to go to Town W to spend time with the children from 5.00 pm on Easter Monday until the start of school the following day, because the children are meant to be in his care at that time.
We have no idea whether all of these stars would align in the way the father postulates, but if they ever did, we accept he is strictly correct in his argument. Were it not for the fact that the father has been travelling to Town W each alternate Thursday night for years, we would wonder what would possess him to travel there just to have the children on Easter Monday night. However, given the history, we accept it is likely he would do so, and we also note his claim that the new time will “ruin” his Easter Monday (Ground 69).
Her Honour did not provide reasons for changing the orders in the way the mother sought; although it is difficult to resist the conclusion she thought it better for the children to be returned home on the afternoon before school recommences, rather than leaving Adelaide in the early hours of Tuesday morning. However, given the long-standing arrangement for the visits to conclude on the Tuesday morning; given the fact the children are routinely brought back to Town W on the morning they are starting back at school; and given the theoretical possibility discussed in the previous paragraph, we find the absence of reasons constitutes appealable error.
On the re-exercise of the discretion, we would reinstate the original finish time, which would see the Easter visit for the father end on the Tuesday morning, but would also see the mother being entitled to have the children for the entire Easter weekend each alternate year. By this means, the return time after Easter is the same as the return time after the periodic visits during school terms, which provides some consistency in the suite of orders.
Order 7 – Medical practitioners
Paragraph 7 of the orders made by Dawe J provides:
Each party do keep the other informed as to the names and contact details of the children’s medical and health professionals noting that the father will ensure that the said children attend the same general practitioner as nominated by the mother.
We observe that this order is in the same terms as paragraph 8 of the 2007 orders. While the father stated at Ground 59 that he was not appealing the making of that order, he then appears to have changed his position at Ground 72, where he said the trial judge had “made errors in the finding of fact and in judicial discretion” in dealing with this issue.
The trial judge dealt with the topic at [197] of her reasons of 4 December 2012 (original emphasis):
The mother suggests this Order should continue unchanged. The father suggests the inclusion of the words “in [Town W]” after the words “the same general practitioner” and before the words “as nominated by the mother.” I see no reason to include this change. The mother lives in [Town W]. It is entirely likely that any general practitioner she nominates will also live in [Town W]. The order will remain unchanged.
The father accepted that if the children were being taken to a doctor in Town W, they should see the doctor nominated by the mother; however, he wants to be able to take the children to see a doctor in Adelaide if they require medical treatment when they are visiting him there. The assumption in his argument was that the mother would not nominate a doctor in Adelaide as well as one in Town W, and nothing said by the mother suggested he was wrong in that assumption.
In the course of argument before us, the mother agreed with the proposition that it would make “perfect sense” for the father to take the children to the doctor in Adelaide if they became ill when in Adelaide, and said she did not have “an issue” with that. She went on to say (appeal transcript, p 93):
What I have an issue with, your Honour, is that he doesn’t provide those care facilities or those care notes to the current doctor in [Town W]. They need to be able to speak to each other if there’s different doctors in different places so that they can have the correct information, so that they can have some history to be able to treat the children.
We do not consider it to be realistic (and we very much doubt that her Honour intended) that the children would have to be returned to Town W for treatment if they became unwell while living with the father in Adelaide and we find appellate error. In our view, on a re-exercise of the discretion, the order should be amended roughly as the father proposes, to make clear that the obligation for the children to maintain continuity of medical advisers applies only for treatment required when the children are in Town W. In order to meet the mother’s concern, we consider that an order should be made requiring the father to advise the mother in writing if the children attend a medical practitioner in Adelaide, and provide details of any advice received from the doctor and any medication prescribed. The father will also be required to authorise any medical practitioner in Adelaide to speak with the children’s doctor in Town W concerning matters relating to the children’s health.
Order 8(e) – Children’s surnames
The complaint about this order (Ground 74) was not advanced in the father’s written or oral submissions and, in any event, its lack of merit is apparent from reading the ground as drafted.
Order 9 – Friday evening sport
Paragraph 9 of the orders made by the trial judge requires the father to ensure that the children attend their sporting activities in Town W on Friday evenings, as sought by the mother. This order prevents the father from returning to Adelaide on his alternate weekends with the children until after any Friday sports commitments have been completed.
Paragraph 10 of the 2007 orders provided (emphasis added):
That the father ensure that [L] (and where appropriate [M]) attend Thursday evening [football] training during school term times and the mother be at liberty to attend.
Her Honour’s reasons for changing the existing order were as follows:
162.The father suggests that [paragraph 10] be modified such that the parties and the children are to discuss, and the parties are to support when the children are in their care, the attendance of the children at agreed sports training, sports matches and sports special events in both [Town W] and Adelaide.
163.The mother suggests that the order be varied such that the father is to ensure that the children attend Friday evening sports training during school terms upon the condition that the mother do inform the father on the giving of seven days’ notice in writing of any change or any expressed desire for change by the said children.
164.I prefer the mother’s suggested amendments to this order as it is clearer and requires less discussion and thus less opportunity for disagreement between the parties.
The father’s argument about this order was set out in his Grounds 77 and 78, where he said (errors in original):
77.… The new order refers to Friday evening when the status quo is that the father leaves [Town W] after school to travel to Adelaide to support the children’s sporting and social activities as well as to support his wife and two children (14, 4). The mother did seek that the order be moved from Thursday to Friday. The mothers order applying to a Thursday night is at least not a breech of that status quo travel but the mother sought to move it to Friday simply to interfere with this travel and the children’s life in Adelaide. …
78.... In para 162, Her Honour misrepresents my position which was actually that the order should be left unchanged, and that the mothers order should not be considered. In para 164, Her Honour decides that the mother’s order is clearer and will create less opportunity for disagreement between the parties. The clearest order that creates no disagreement whatsoever is that this order not exist on a Friday evening. Order 9 is in the contrary ambiguous as regards mother’s v children’s wishes, likely to generate significant conflict and will potentially involve the children in that conflict and in legal proceedings. …
In his summary of argument, the father claimed that the new order
granted powers to the mother to potentially dictate the fathers travel arrangements from [Town W] to Adelaide. It did so by moving a prior (and unenforceable) sporting order, which applied to the Thursday night in [Town W], to the Friday night when the father is normally travelling to Adelaide with the children.
In her submissions before us, the mother argued that the children live in Town W, have sporting commitments in Town W, and that these should be “honoured”. She submitted that the father should support the children’s sporting commitments in Town W and went on to say:
…he doesn’t support the children’s sporting in [Town W], because he does take them out of [Town W] for the weekend when the children are in his care and they do different sports with different sets of children in Adelaide. So they don’t have the same team bonding relationship with their peers in [Town W] … on a weekly basis.
We turn first to the question of whether her Honour misunderstood the relief being sought by the father in relation to this issue.
In his affidavit of 16 July 2012, the father set out at Annexure “A” a proposal for a revised suite of orders to govern arrangements concerning the children. The proposed orders omitted original paragraph 9 and instead sought an order (numbered 10 in his Minute) that “the mother, father and children do discuss, and the mother or father support when the children are in their care, attendance of the children at agreed sports training, sports matches and sports special events in [Town W] and Adelaide”.
On 10 October 2013, her Honour directed each of the parties to file an affidavit annexing the final orders that they were seeking (trial judge’s reasons at [117]). The father filed his affidavit on 22 October 2013, but it did not include an annexure setting out the final orders he was seeking. Instead, he said at [15] (emphasis added):
As previously outlined, contact orders should remain unchanged by virtue of Rice-Asplund, other than the outstanding matter of the missing Christmas order, whose preferred structure has already been advised in order 4(f) of Annexure “A” of my affidavit filed 16th July 2012…
It is not entirely clear to us whether the father regarded paragraph 9 as a “contact order” (as to which see [17] of his affidavit of 22 October 2013). In any event, as her Honour pointed out at [124] of her reasons, there was a very large volume of material before the Court and we can readily understand if there was some confusion in her Honour’s mind about the father’s position. Clearly, and for good reason, the trial judge did not accede to the father’s amended proposal that the orders simply “remain unchanged”. Having taken that view, we see nothing wrong with her Honour then regarding Annexure “A” to the father’s affidavit of 16 July 2012 as describing the father’s proposals if there were to be some changes made to the orders.
The mother’s proposal, as correctly outlined by her Honour, was contained in an annexure to her affidavit of 23 October 2013. However, the mother’s evidence at [13] to [16] of that affidavit appeared to stress that the children’s commitments were, or were likely to be, on a Thursday evening. The mother’s affidavit also referred to the father’s existing practice of taking the children to Adelaide early on Friday to attend sporting training there.
Although we are not persuaded the trial judge misdescribed the father’s proposal, we consider that she erred in apparently considering that she was bound to make either the order sought by the mother or the order sought by the father. While this might ordinarily be the case in dealing with competing proposals, in the circumstances of the present case, we consider it was necessary for her Honour to determine whether paragraph 10 should simply stay in place.
While appreciating the many difficulties her Honour faced in dealing with an extremely messy matter, in which both parties were self-represented, we consider that her Honour overlooked a clearly material consideration in arriving at her decision on this topic; namely, the potential for the order to interfere with the father’s long-standing practice of taking the children back to Adelaide on Friday afternoon immediately following the conclusion of school. Her Honour simply did not engage with the issue.
Although we recognise the merit in the mother’s argument about the effect of the existing order on the children’s capacity to take part in team sports on Friday evenings, this was not a matter on which her Honour relied in arriving at her decision. We are not persuaded that the benefit of the children being able to participate in sporting activity in Town W on Friday after school outweighed the benefit of the children being able to travel to Adelaide at a convenient time on Fridays as they had been doing for many years.
We therefore intend to allow the appeal on this issue. In the re-exercise of the discretion, we propose to order that the father ensure that the children attend their regular Thursday sporting commitments during school terms. In making that order without conditions (as was the case with the 2007 orders), we accept that there is merit in the father’s argument that the imposition of any conditions could lead to dispute, for example about whether the children wish to attend training. The mother did not, as far as we are aware, dispute the father’s assertion that a Judicial Registrar had previously made a ruling dealing with circumstances where the children do not wish to attend training.
Order 10 – Restraint on filing further applications
In Ground 79, the father complained about the new paragraph 10 in these terms (errors in original):
The father sought, and was granted, amendment of old order 9(e), but the form of that amendment (Reasons para 172-176) is not in the children’s interest. Her Honour has not applied her discretion appropriately. The new form replicates the problem with the old form in that legal proceedings are bulked out and delayed by the need to first seek leave, using unfiled and unserved court documents, such that the matter cannot proceed until service and a further hearing after leave is given. An urgent application by the father for leave to file an application to amend the errored new orders 3(a), 3(b), 3(d) and 3(e) under SLIP rules was set for hearing on 3rd March 2014, instead of being dealt with quickly in chambers as promised in para 176 of the Reasons. This means that those SLIP amendments may not now be dealt with until after many weeks of operation of those problematic orders, with severe loss of contact and ongoing parental conflict likely, with some negative and long term implications already having occurred. …
The background to this part of the father’s complaint can be seen in the following extract from her Honour’s reasons (original emphasis):
172.Order 9(e) restrained the parties from filing any further Applications, Affidavits or other materials without first obtaining leave of a Judge of this Court to do so. Over 100 documents have been filed since the making of the order. Clearly, it has not served its purpose in stemming the flow of litigation between the parties.
173.The father wants this order revised as “it is not in the proper form, has and is resulting in significantly higher load on the parties and the Courts as regards proper and necessary applications, as well as unnecessary delay in the filing and progress of matters.” The order is said to have “previously and unfortunately prevented urgent requests for injunctive and recovery orders from the father to prevent and curtail the contraventions by the mother in April 2012”.
174.He instead seeks “an order that still provides the Family Court with the ability at the first hearing (urgent if necessary) to grant or refuse leave to proceed with any such applications that are filed in Family Court, whilst maintaining the necessary prior leave of the Family Court to then file in the Federal Magistrates Court.”
175. The mother wants the order to continue.
176.The order will continue, but in a slightly modified form to prevent any confusion to the parties’ or to court personnel. It is in a similar form as Orders 21 to 24 of the Orders of Justice Murphy made in Brown & Crawford [2009] FamCA 96 (19 February 2009) and Orders 11(a)-(e) of the Orders of FM Baumann (as he then was) made in Gillman & Taggart [2012] FMCAfam 1226 (29 October 2012) and provides a process by which applications for leave to file documents can be assessed quickly and effectively in a hearing in chambers. Importantly, the respondent named in the proposed application will not be aware of the proposed filing of the application unless leave is granted. This will prevent “tit-for-tat” filing of Applications for Contravention Orders and the like.
Paragraph 10 of the orders made by the trial judge is in the following terms:
The parties are restrained from filing any further Applications, Affidavits or other material in the Family Court of Australia without first obtaining leave of a Judge of this Court in the following manner:
(a)any such application for leave to file such material will, in the first instance, be listed for hearing before a Judge in chambers;
(b)any such application for leave is to be facilitated by the applicant party annexing to the material for which leave is sought to be filed a written application specifying with particularity the orders sought together with an affidavit setting out the basis for such orders and a written argument in support of the Court granting permission to allow such material to be filed;
(c)unless otherwise ordered by the court, any such application for leave shall not be served on the other party to the proceedings;
(d)the Court shall thereafter deliver written reasons for its decision with respect to permission being granted or denied to file the relevant material.
In his oral submissions before us, the father said:
…every time we try to do something, we’ve got to go through the leave and attach to leave applications and – so, the file is four times bigger than it should be, and it has taken a massive amount of time to progress anything because of this operation of 9(e), when, prior to 9(e) being put in place temporarily on 16 April 2007, and, really, since then, every issue that has come before the court has been a real issue. We’ve never had costs against us in terms of any of these contraventions.
We see no merit in the father’s complaint. Clearly, some effort needs to be made to contain the parties’ propensity to litigate, thereby causing not only inconvenience and angst to each other, but also to the Court. The order made by her Honour, who is a trial judge of enormous experience, provides a simple and effective way of dealing with the question of leave. The terms of the order ought not to have led to the difficulties described in Ground 79.
In arriving at our decision, we have not overlooked what was said in Marsden & Winch (2013) FLC 93-560 concerning s 118 of the Act in the form that applied when Burr J made the original order restraining the parties from making applications without leave. We are unaware of the precise basis upon which the order was granted and, in any event, we note it was not the subject of appeal. At the time the original order was made, s 118(2) provided that such an order could be discharged or varied. Although the Act has now been substantially amended, as presently advised, we consider that s 118(2) continues to apply to the original order by operation of Item 12(2) of Schedule 3 of the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth). In varying the order, Dawe J was entitled to assume that the original order had been validly made, and the husband advanced no argument to the contrary.
Order sought but not made – Passports
Dawe J dealt with the father’s request for an order relating to the children’s passports in the following terms (document references omitted):
186.The father seeks the following new orders as set out at paragraphs [30]-[32] of the father’s affidavit filed 9 October 2013 and are also mentioned in paragraphs [15]-[17] of his affidavit filed 22 October 2013:
a)A “new order for the children’s passports” that would enable them to visit relatives who live overseas. The specific order sought is expanded upon in paragraph [32] of the father’s affidavit filed 13 February 2013.
…
187.It is not appropriate to make an order relating to attainment of passports for the children. These parents are not yet capable of working through the issues that can arise out of international travel in a manner that would not be detrimental to the children’s best interests. If the parties’ can demonstrate the ability to co-parent without further intervention of the Court for an extended period of time, then it may be appropriate to consider making orders for the attainment of passports. In any event the father is the subject of a Departure Prohibition Order as a result of an ongoing dispute with the Child Support Agency. I decline to make an order in the terms sought by the father.
In Ground 80, the father contended that her Honour erred in the exercise of her discretion in failing to make the order he sought. He claimed that the passports would be for the benefit of the children, that there should be an order in relation to passports to avoid future conflict, and that the Departure Prohibition Order against him was irrelevant and temporary.
In his submissions before us (appeal transcript, p 64), the father said that his desire to obtain passports for the children was not necessarily in order to allow them to travel overseas with him, but because the opportunity may arise for them to go overseas on a school trip. The father acknowledged that this proposition had not been put to the trial judge. He also said that if there were concerns about unauthorised travel, then there could be a requirement for the parties to seek leave before such travel was undertaken.
In her submissions before us (appeal transcript, p 94), the mother did not disagree with the proposition that it would be desirable for the children to be able to participate in school trips. However, she argued it was unlikely the family would be able to afford such a trip and that, if the father could afford the costs of overseas travel, this should not be at the expense of child support being paid at an appropriate rate.
We are not persuaded that her Honour erred in declining to make the orders sought by the father relating to passports. Given that both parents acknowledge it would be in the best interests of the children to participate in school trips, we see no impediment to either of them applying at first instance for leave to apply for orders relating to passports and travel if a school trip is arranged and can be funded.
Failure to grant an injunction – Sporting events
The father complained about her Honour’s overruling of what he described as “rare consensus” between the parties, who both wanted an injunction continued, as appears from the following paragraphs of her Honour‘s reasons:
179.Order 12 restrained the parties from attending at any weekend sporting or other social commitments of the children during such times as the children are not in their primary care pending the conclusion of a mediation session as arranged by the then Independent Children’s Lawyer.
180.The mother was of the view that the Order was still operative. The father said it was not. Both parties sets of proposed orders seek to reactivate the order. I do not see that as necessary. By all accounts, these children are extremely talented young boys. I understand that they are in with a chance at being selected to represent the State of South Australia in a youth … team. The parents should be commended for raising such dedicated and talented young boys, and should be able to enjoy and encourage the children during their sporting pursuits.
181.Other orders exist that restrain the parents from denigrating each other or the other parties’ partner or children, from seeking to alienate the children from the other parent, from videotaping the other party, and even from communicating verbally with each other. I believe these orders are sufficient to protect the best interests of the children whilst also allowing those interests to be furthered by having both parents involved in what is obviously an important activity in the children’s lives.
In Ground 76, the father challenged her Honour’s approach by saying (errors in original):
…Whilst Her Honours intentions are admirably, the parents are in a better position to judge when they and their family members are under good enough terms for the order to be removed by consensus. There is a long sporadic history of conflict over sporting events…
We find no error in the approach adopted by the trial judge. On the contrary, we consider it an eminently sensible one, which will hopefully focus the attention of the parties on what is in the best interests of their children, rather than them focusing on their own inability, after so many years of separation, to conduct themselves with maturity and dignity.
Application to adduce further evidence
At the appeal hearing, the father was given leave to rely upon an application to adduce further evidence which had been filed a little out of time. The material he sought to adduce was contained in a supplementary appeal book and comprised:
· A copy of the mother’s written submissions filed in September 2014. The father did not need leave to rely upon that document, as it should have been in the original appeal book.
· A Child Dispute Conference Memorandum. We do not know whether this document was before her Honour or not. If it was, leave is not required for the father to rely upon it, but in any event, the content does not seem to have any particular bearing on the appeal.
· Court documents relating to proceedings before the trial judge postdating the orders under appeal. The father acknowledged in his submissions before us that he did not need to take us to any of the affidavit material. Our own examination of other parts of this material indicates that it would be proper for us to have regard to an order made by consent on 5 February 2014, which had the effect of correcting an error regarding the sequence of the alternating fortnightly contact regime. We need to have regard to that order, as we are making a minor change to paragraph 3, and it is the order in its form as amended on 5 February 2014 that now requires further amendment. None of the other material in this group of documents is of assistance.
· Two pages of a transcript of proceedings before Burr J on 27 October 2011, in which his Honour expressed his view that orders should not be made dealing with Easter, because Easter frequently falls during school holidays. We see no basis for that material to be introduced.
For these reasons, the father’s application will be allowed only to the extent that it seeks to introduce evidence of the order made on 5 February 2014.
Material to which we have had regard in re-exercising the discretion
At the conclusion of the hearing, we made an order permitting the mother to file a list of any documents filed after 4 December 2013 that she would wish us to consider in the event we determined to re-exercise.
The mother’s list contained nine documents. Six of these predated 4 December 2013 and we have not taken them into account. We have read the mother’s affidavit of 26 February 2014, particularly in relation to the Thursday/Friday sporting commitments. We have not had any regard to the order made on 14 May 2014, as it is merely a case management order. Although we have read the other material provided by the mother postdating 4 December 2013, it adds little to what was before the trial judge, and merely serves to confirm the apparent boundless capacity of the parties to engage in disputation.
The outcome and costs
We propose to:
a)discharge the order placing the father on a bond and make an order that the mother’s contravention application be dismissed;
b)dismiss the appeal insofar as it relates to the father’s contravention application against the mother; and
c)allow the appeal in relation to a few of the parenting orders and vary them in the way foreshadowed above.
In accordance with our usual practice, we sought submissions concerning the question of the costs of the appeal.
The father advised that he had expended about $3,500 in disbursements relating to the appeal, which he considered he would be entitled to have reimbursed. The mother advised that she had not incurred any costs.
In the event the appeal was allowed, the father did not seek an order for costs against the mother, but sought a costs certificate under the provisions of the Federal Proceedings (Costs) Act 1981 (Cth). The appeal having been allowed on a question of law, and no order for costs having been made against the mother, it is open to us to grant a costs certificate.
An inordinate amount of public resources has already been given over to these parties in their war of attrition. The eight volumes of material they filed descended into a level of detail that we find remarkable. They represented themselves, both at first instance and before us, in a way that was utterly unhelpful. It is to the credit of the trial judge that she was able to make sense of all that was put before her. She made a sterling effort to provide an outcome and new suite of orders that she hoped might reduce the never-ending disputation. Her time and ours could have been devoted to far more pressing matters, and we consider it would add insult to injury to expect the taxpayer to meet any more costs associated with these proceedings.
We therefore decline to grant a costs certificate.
I certify that the preceding one hundred and fifty-three (153) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 30 April 2015.
Associate:
Date: 30 April 2015
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