Orwin & Hansonn

[2009] FamCA 696

FAMILY COURT OF AUSTRALIA

ORWIN & HANSONN [2009] FamCA 696

FAMILY LAW – ORDERS – CONTRAVENTION – application by the mother alleging 4 counts of contravention against the father – where the father admitted the contraventions alleged in counts one and two and pleaded not guilty to counts three and four – where counts three and four were dismissed by consent – whether the father had a reasonable excuse for the two admitted contraventions – father found guilty on two counts of contravening orders without reasonable excuse

FAMILY LAW – ORDERS – CONTRAVENTION – PENALTY – where the father’s contraventions did not amount to serious disregard – where no previous contraventions by the father – appropriate to make an order compensating the mother for the time she did not spend with the children as a result of the contravention

Family Law Act1975 (Cth) ss 65N, 65NA, 70NAA, 70NAC, 70NAD, 70NAE, 70NAF, 70NDA & 70NEB
APPLICANT:	Ms Orwin

RESPONDENT: Mr Hansonn

FILE NUMBER: ADC 14 of 2007

DATE DELIVERED: 1 JULY 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: BURR J

HEARING DATE: 25 JUNE 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Mother in person

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Father in person

Orders

1. By consent Counts 3 and 4 of the mother’s Application for Contravention filed 21 April 2009 (being those Counts contained in paragraphs 11 and 13 of the said Application) be dismissed.

UPON THE COURT finding the father guilty of contravening the Orders of the Federal Magistrate’s Court made on 24 January 2006 as alleged in paragraphs 7 and 9 of the mother’s Application for Contravention filed 21 April 2009.

1. By way of penalty the mother be compensated for the time the children did not spend with her in April 2009 as required by the aforesaid Orders of 24 January 2006 in that she spend time with the children R born … September 1994 and J born … September 1996 from the conclusion of school on Friday 3 July 2009 to 3.30 pm on Saturday 18 July 2009 with the mother to collect the children from school at the commencement of such period and the mother to return the children to the home of the father at the conclusion of such period or as may otherwise be agreed between the parties in writing.

2. The mother’s aforesaid Application for Contravention be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Orwin & Hansonn is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 14  of 2007

MS ORWIN

Applicant

And

MR HANSONN

Respondent

REASONS FOR JUDGMENT

Introduction

1. I have before me an Application for Contravention filed by the mother on 21 April 2009.  The mother alleges that the father has breached certain orders made by Federal Magistrate Lindsay on 24 January 2006.

2. The father filed an affidavit in response on 15 June 2009.  At the hearing on 25 June 2009 the mother and father were both unrepresented and gave oral evidence in support of their positions.

Background

1. The father was born in 1968 and is thus aged 41 years.  The mother was born in 1970 and at the time of the hearing was aged 38 years.

2. The parties married in 1991 and separated in 1997.  The parties were divorced by decree absolute granted in August 1998.

3. The parties have three children, L born in April 1993 (16), R born in September 1994 (14) and J born in September 1996 (12).

4. The parties first filed in the Family Court in 1998 and have been involved in proceedings in the Family and Federal Magistrates Courts near continuously since that time.  Final orders have been made in July 1999, June 2001, September 2005, January 2006 and June 2008.  There have been applications by the husband alleging contravention by the wife.  It is clear that the parties have an acrimonious relationship.

5. Notwithstanding the fact that on 27 June 2008, Penny J determined that there were not sufficiently changed circumstances to reopen the issue of with whom the children should live, the mother filed a further Initiating Application on 18 March 2009 seeking an increase in the time she is to spend with the children R and J and further that the child L live with her.  That matter was transferred from the Federal Magistrate’s Court on 29 April 2009 and is due to be before this Court again on 2 July 2009.

6. The mother’s contravention application relates to the Final Consent Orders regarding the arrangements for the children made by Lindsay FM on 24 January 2006.  Those orders provide:

   1.That the children of the marriage [R] born […] September 1994 and [J] born […] September 1996 do continue to attend [E] Primary School until such time as each of the said children do commence schooling at [C] College or such other school as the parties may agree in writing.

   2.That the child of the marriage [L] born […] April 1993 do at the husband’s expense attend [C] College on condition that she be given the same opportunities regarding music studies as she would have otherwise had at [F] High School or such other school as the parties may agree in writing.

   3.That the husband do give and the wife do have contact to [sic]the said children:

   (a)during school term and commencing on the first weekend in each term on each alternate weekend from the conclusion of school on the Friday to 6:30pm on Sunday with the wife to collect the children from school at the commencement of such contact and the husband or his nominee to collect the children from the home of the wife at the conclusion of such contact;

   (b)for the first half of the school holiday periods with the wife to collect and deliver the children to and from the home of the husband at the commencement and conclusion thereof, save that such contact shall stand suspended from 6:00pm on 24 December 2005 to 6:00pm on 25 December 2005 and in each alternate year thereafter with the husband or his nominee to collect and deliver the children at the commencement and conclusion of such suspension;

   (c)by telephone on the Wednesday of each week at 7:00pm with the wife to telephone the children at the husband’s residence, such contact not to exceed in aggregate 20 minutes;

   (d)on Mother’s Day between the hours of 9:00am and 6:30pm (if it should not otherwise be a contact day) with the wife to collect and deliver the children to and from the home of the husband at the commencement and conclusion thereof PROVIDED ALWAYS that if contact shall fall on Father’s Day then and in that event contact shall stand suspended between the hours of 9:00am and 6:30pm on that day with the husband or his nominee to collect and deliver the said children to and from the home of the wife at the commencement and conclusion thereof;

   (e)that until further order Mr [P] be at liberty to attend upon contact provided always that Mr [G Orwin] or Mrs [D Orwin] be present at all such times during his attendance;

   (f)that the question of the continuing supervision of Mr [P’]s contact with the said children be adjourned to 21 March 2006 at 9:30am.

   4.      That this application do otherwise stand dismissed.

Allegations

1. The mother in her application alleged 4 counts of contravention.  The first count relates to the mother’s allegation that the father breached order 3(c) in not making the boys available to communicate with the mother via telephone on 1 April 2009. 

2. The wife states in her affidavit that she received a message from the father through the parties’ daughter, that the boys would not be available for telephone contact that Wednesday.  The mother stated in evidence that the daughter had given her this message earlier on the Wednesday.  The mother states that she emailed the father to confirm this and the father responded confirming this and offering Thursday night for the wife to contact the children.

3. The mother states that due to various commitments of the parties and the children she was unable to communicate with the children until the Sunday night.  The mother states that the children informed her that they had attended a movie with the father on the Wednesday as the reason for not being available to communicate with the mother.

4. In relation to the second count, the mother alleges that the father contravened order 3(b) in not making the boys available for holiday time with the mother at the commencement of the Easter weekend.  The mother states that the father informed her on the morning before she was due to collect the children from their school to spend time with her over the Easter long weekend, that the children would not be attending time with the mother.

5. In relation to the third count, the mother alleges that the father has contravened order 3(a) in not keeping her informed about the child R’s activities.  In this respect, the mother says that she was given a sheet at the beginning of the year which outlined the activities the child would be attending and that she has made plans regarding her time with the children on that basis.  The mother states that on numerous occasions, the last minute notice of the child’s activities has hindered her time with the children.

6. In relation to the fourth count, the mother alleges that the father has breached “multiple paragraphs” of the order by having blocked the mother’s emails and having placed filters on his email account such that the mother’s emails did not get through to the father.

7. In relation to the first and second counts, the father admitted that a contravention had occurred but pleaded that he had a reasonable excuse in relation to both.  As for the third and fourth counts, the father pleaded not guilty with respect to the contraventions alleged.

8. In respect of the third and fourth counts, I informed the parties that as there were no provision in the orders made on 24 January 2006 which provided specifically for the mother to be kept informed of the children’s activities or for the father to communicate with the mother by email, the mother’s application could not succeed.  I therefore, with the consent of the mother, dismissed both counts three and four.

The Law

1. Division 13A of Part VII of the Family Law Act 1975 is entitled “Consequences of failure to comply with orders and other obligations that affect children”. Sections 70NAA to 70NFJ are the sections which deal with contraventions. Section 70NAA is headed “Simplified Outline of Division” and states:

   (1)This Division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.

   (2)The court always has the power to vary the order under Subdivision B. In doing so, the court will have regard to any parenting plan that has been entered into since the order was made (see section 70NBB).

   (3)The other orders that the court can make depend on whether:

   (a)a contravention is alleged to have occurred but is not established (Subdivision C); or

   (b)the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or

   (c)the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).

2. Section 70NAC sets out the meaning of contravened an order:

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

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

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

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

3. Paragraph 70NAD (b) provides:

   For the purposes of this Division:

   …

   (b)a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order;

   (c) a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order; and

   …

4. Section 65N provides:

   General obligations created by parenting order that deals with whom a child spends time with

   (1)This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to spend time with.

   (2)A person must not:

   (a)hinder or prevent a person and the child from spending time together in accordance with the order; or

   (b)interfere with a person and the child benefiting from spending time with each other under the order.

5. Section 65NA provides:

   (1) This section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to communicate with.

   (2) A person must not:

   (a) hinder or prevent a person and the child from communicating with each other in accordance with the order; or

   (b)interfere with the communication that a person and the child are supposed to have with each other under the order.

6. Section 70NAE sets out the meaning of “reasonable excuse” for contravening an order. The relevant provisions are:

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

   …

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

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

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

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

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

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

   …

7. Section 70NAF states:

   (1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

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

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

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

   (b)paragraph 70NFF(3)(a);

   if the Court is satisfied beyond reasonable doubt that the grounds for making the order exist.

8. The various subdivisions in the Division provide for the powers of the Court that can be exercised depending on what finding as to contravention has been made. Section 70NDA provides for where a contravention has been established but where there is a reasonable excuse. Section 70NEB provides for the powers of the Court where a contravention has been established but where there is no reasonable excuse:

   Powers of court

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

   (a) make an order directing:

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

   (ii) that person and another specified person;

   to attend a post‑separation parenting program;

   (b) if the current contravention is a contravention of a parenting order in relation to a child--make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;

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

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

   (e) if:

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

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

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

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

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

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

   Note 1: The court may also vary the primary order under Subdivision B.

   Note 2: Paragraph (1)(a)--before making an order under this paragraph, the court must consider seeking the advice of a family consultant about the services appropriate to the person's needs (see section 11E).

   (2)The court must not make an order under paragraph (1)(a) directed to a person other than the person who committed the current contravention unless:

   (a)the person brought the proceedings before the court in relation to the current contravention or is otherwise a party to those proceedings; and

   (b)the court is satisfied that it is appropriate to direct the order to the person because of the connection between the current contravention and the carrying out by the person of his or her parental responsibilities in relation to the child or children to whom the primary order relates.

   (3)If the court makes an order under paragraph (1)(a), the principal executive officer of the court must ensure that the provider of the program concerned is notified of the making of the order.

   (4)  If:

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

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

   the court must consider making an order under paragraph (1)(b) to compensate the person for the time the person did not spend with the child (or the time the child did not live with the person) as a result of the contravention.

   (5)The court must not make an order under paragraph (1)(b) if it would not be in the best interests of the child for the court to do so.

   (6)In deciding whether to adjourn the proceedings as mentioned in paragraph (1)(c), the court must have regard to the following:

   (a)whether the primary order was made by consent;

   (b)whether either or both of the parties to the proceedings in which the primary order was made were represented in those proceedings by a legal practitioner;

   (c)the length of the period between the making of the primary order and the occurrence of the current contravention;

   (d)any other matters that the court thinks relevant.

   (7)  The court must consider making an order under paragraph (1)(g) if:

   (a)the person (the applicant ) who brought the proceedings in relation to the current contravention has previously brought proceedings in relation to the primary order or another primary order in which the applicant alleged that the person (the respondent) who committed the current contravention committed a contravention of the primary order or that other primary order; and

   (b)on the most recent occasion on which the applicant brought proceedings of the kind referred to in paragraph (a), the court before which the proceedings were brought:

   (i)was not satisfied that the respondent had committed a contravention of the primary order or that other primary order; or

   (ii) was satisfied that the respondent had committed a contravention of the primary order or that other primary order but did not make an order under section 70NDB, 70NDC, 70NEB, 70NFB or 70NBA in relation to the contravention.

   (Emphasis added).

1. Subdivision F concerns the Court’s power to impose community service orders and periods of imprisonment where a contravention has been established without reasonable excuse.  This subdivision applies where a respondent has shown serious disregard for their obligations under the primary order or if a Court has previously imposed a sanction or taken action with respect to a contravention, or has adjourned proceedings pursuant to section 70NEB(1)(c).

Discussion

1. As mentioned above, the father admitted the contraventions on counts one and two alleged by the mother, but pleaded that he had a reasonable excuse for each of these contraventions. 

2. In his oral evidence the father stated that the reason for the contravention on the first count was that he had obtained free tickets to a movie that the children wanted to see. 

3. In relation to the second contravention the father stated that the children had told him they wanted to go to an event with the father over the Easter weekend.  In evidence, the father stated that the mother had given the children a choice as to whether they wanted to attend the event with him or spend time with the mother and that they chose to attend with him.  The mother denied this and said that she explained to the children that if they wanted to go to the event with the father it would make spending time with her over the holidays difficult. 

4. The father’s evidence indicates that he did not believe that his actions were necessary for the health and safety of a person. While section 70NAE (1) makes it clear that these are not the only grounds on which a reasonable excuse may be made out, attending a movie and an event with the father at times where there is an order providing for the children to communicate or spend time with the mother, in the absence of the consent of both parties does not constitute a reasonable excuse. The husband is therefore guilty of a contravention on both counts without reasonable excuse.

5. I do not consider that the father’s contravention amounted to a serious disregard of his obligations under the order of 24 January 2006 and it does not appear that any action has previously been taken against the father for a contravention.  Therefore, I am to look at section 70NEB for the orders I may make in light of this finding. 

6. I do not consider it necessary to order the father to undergo a parenting course or to enter into a bond.  Pursuant to section 70NEB(4) I am obliged to consider an order compensating the mother for the time she did not spend with the children.  In the circumstances, I consider this to be the most appropriate order.

7. I do not consider that it would not be in the child’s best interests to order compensating the mother for time she has missed as a result of the contravention (70NEB(5)).

8. The mother has already had an opportunity to communicate with the children in lieu of the occasion of the first contravention on 1 April 2009.  The mother is entitled to be compensated for a week of time with the children that she missed due to the second contravention on 9 April 2009.  At the hearing, the mother indicated that she is seeking that she have make up time with the children in the second week of the July school holidays.  The father said that the children had indicated to him that they did not wish to spend the entire July school holidays with their mother.  However, that is a matter for the children and the mother to discuss. 

Summary and conclusions

1. The father has admitted that the children did not communicate with the mother on 1 April 2009 and did not spend time with the mother commencing the first weekend of the April school holidays.  The father has not established on the balance of probabilities that he has a reasonable excuse for failing to abide the orders of the Court.

I certify that the preceding thirty four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Burr

Associate: 

Date:  1 July 2009