Oxley & Inglis - [2007] FamCA 1606

FAMILY COURT OF AUSTRALIA

OXLEY & INGLIS

[2007] FamCA 1606

FAMILY LAW – APPEAL – CHILDREN - Orders – Contravention

Family Law Act 1975 (Cth), s 70NAE
Federal Magistrates Court Rules 2001, Rule 25B.04

In the marriage of Gaunt (1978) FLC 90-468
Vlug v Poulos (1997) FLC 92-778

APPELLANT:

MR OXLEY

RESPONDENT:

MS INGLIS

FILE NUMBER:

TVM

2191

2002

APPEAL NUMBER:

2006

DATE DELIVERED:

16 March 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

WARNICK J

HEARING DATE:

13 MARCH 2007

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

4 DECEMBER 2006

LOWER COURT MNC:

[2006] FMCAfam 728

REPRESENTATION

THE APPELLANT:

In person (via videolink)

THE RESPONDENT:

No appearance

Orders

That the appeal be allowed.
That the applications of the father filed 1 and 8 November 2006 in the Federal Magistrates Court be remitted for rehearing by a Federal Magistrate other than Coates FM.
That the court grants to the appellant father a costs certificate pursuant to the provisions of section 9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Oxley and Inglis.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 93 of 2006
File Number: TVM 2191 of 2002

MR OXLEY

Appellant

And

MS INGLIS

Respondent

REASONS FOR JUDGMENT

Basically, all that [Mr Oxley] seeks from this appeal is recognition that he was right in respect of two occasions on which he alleges [Ms Inglis] contravened parenting orders relating to arrangements for their child, [B], born [in 1997].
The circumstances of this matter throw up many of the features that so often seem to bedevil contravention applications; actions by the respondent, which even if contrary to orders, are seemingly of little moment and either apparently for the benefit of the child or at least not harmful to the child’s interests (a hint of pettiness in the complaint); and/or a perception from the evidence that the interest of the court in obedience to its orders is being invoked in support of a power struggle between the parents (the frustrating prospect of lending the support of the law to a poor motive); and probably as a result of these features and the frequent lack of legal representation of the parties, a hearing which departs from some of the rules, perhaps in an attempt to provide the proportionality and tolerance often apparently missing from one or both of the parties.
However, this matrix often throws up several consequences. One is that insufficient understanding is given to the dilemma for a party with the benefit of an order which has been breached, especially repeatedly, and even if only in a way that does not harm the child’s interests. If the court has made an order, whether by consent or not, one rightly assumes it had purpose and gravity. “Small” but repeated breaches can constitute a real detriment to the beneficiary of an order. Yet a contravention application can seem pernickety.
Another consequence is that an appeal from the decision below may well succeed, and thus the disproportion between the extent of litigation and the subject matter is exacerbated.
The parents essentially shared the care of [B] pursuant to the terms of orders made by consent on 18 July 2005. The father is a university student. One of the classes he attends runs from 6.00pm to 7.00pm. When the child is in his care, pursuant to the orders, the father sometimes takes the child to a swimming lesson and then to the father’s class. There the child watches a program on a portable DVD player, using headphones. The mother said that the child expressed a preference to her to go home after the swimming lesson and asked her to pick him up from the pool and take him to his father’s home. This the mother did on 31 October 2006 and 7 November 2006. It is those actions which, in the Federal Magistrates Court, the father asserted constituted contravention.
The father deposed:
The relationship between the father and the mother is good. Communication is frequent and civil and there is a great degree of cooperation.
…
…yet the father does not wish to have the child’s relationship with him undermined in direct contravention of court orders.
On 4 December 2006, Federal Magistrate Coates found that there had been no contravention on 31 October 2006 and, though there had been a contravention on 7 November 2006, the mother had a reasonable excuse.
In respect of the occasion on 31 October 2006, the Federal Magistrate found that the father did not object to the mother’s action at the time she actually took the child, therefore:
7.…So I find that on the 31 October there was no contravention because the father, by not objecting gave his approval for the mother to take the child, [B], in her vehicle and drop him at the father’s home. On that basis the first contravention then is dismissed.
The challenge of the father to the Federal Magistrate’s decision in respect of this allegation is essentially in two parts. The first is that the father’s own evidence was that he did object and the second is that even if it was not so found, in context the absence of objection could not constitute approval.
As to the conclusion about the second occasion, the father says the provisions of the Family Law Act 1975 that deal with what constitutes “reasonable excuse” were not properly applied.
Though in his amended Notice of Appeal (filed by leave on the hearing of the appeal) the father sought:
“That the matter be remitted to the Federal Magistrates Court for that court to impose a penalty on the respondent mother for each of the contravention above, alternatively, that the respondent mother complete 20 hours of community service for each of the contraventions above.”
he indicated that he was not pushing for a presently enforceable penalty but something more along the lines of a suspended penalty. Primarily, he wished for the mother to be told by the court that she had contravened the orders on each occasion and would be penalised if she continued to breach the orders.
The course appropriate for this court to take in the event there is merit in the appeal depends much on whether the conduct of the hearing below, and the Federal Magistrate’s findings, leave this court in a position to give the decision which ought have been given at first instance.
The mother has not participated in the appeal process, but I am satisfied that she has been made well aware of it in a timely fashion.
The two orders which issued on 4 December 2006 read:
First order:
(1)That the application for contravention filed 1 November 2006 be dismissed.
(The application of 1 November 2006 related to the 31 October 2006 incident.)
Second order:
THE COURT FINDS that the Respondent contravened the Orders of the Family Court of Australia made on 18 July 2005 without reasonable excuse on count 1
THE COURT ORDERS
(1) That no penalty be imposed.
(This order related to the events of 7 November 2006.)
The father himself points out that the “second” order is inconsistent with the Federal Magistrate’s judgment.
By way of short background, the parties married in 1993 and separated in 1999. Orders by consent were made on 23 September 1999. These orders were varied by consent on 10 November 2000 and again by the 2005 orders. All orders provided for shared care.

The finding that the father did not object on 31 October 2006

It was common ground that on Monday 30 October 2006, the mother phoned the father in the morning to inform him that she would be picking up the child from the pool the next day and taking him back to the father’s residence. The father’s evidence was that he said he did not consent to that proposal. Shortly after, the mother and father met outside the child’s school when the mother was delivering the child to school. The mother again informed the father that she proposed to pick the child up the next day from the pool. The father says that he again said he did not consent.
It was also common ground that on Tuesday 31 October 2006, the mother faxed a document to the father saying that she would pick the child up from the pool if the father did not take the child home after swimming.
The other contents of that letter are highly relevant to the question of “reasonable excuse” and will be set out in the discussion about that.
At 11.00am on 31 October 2006 the father faxed a message to the mother, referring her to the orders and s 70NAE of the Act and repeating his rejection of her proposal. Significantly, in the letter, the father said:
If you come to pick him up I would not argue with you (so as not to upset [B]) but it by no means would mean that I consented.
At 4.28pm that day the mother left a message on the father’s home answering machine saying that she would pick the child up from the pool at 5.00pm. Subsequently, she arrived at the pool and the parties sat in the child’s presence and ate sandwiches.
The father deposed that as the parties and child “headed to the car-park” the following conversation occurred:
a.The child: ‘Mummy no kuruma de’ (Japanese for: in mum’s car)
b.     The mother: ‘Ii yo’ (Japanese for: yeah ok)
c.     The father: ‘Have you decide to take him?’
d.      The mother: ‘Mm’.
e.     The father: ‘I don’t agree with that, you know’.
f.      The mother: ‘demo.’ (Japanese for: but)
The father was not cross-examined.
In his cross-examination of the mother about the events of 31 October 2006, the father asked her “Did I agree for you to take him to [the] Beach from swimming pool?” The mother answered: “I suppose you did not.”
After the father’s cross-examination had finished, the Federal Magistrate asked questions of the mother. He asked whether, in respect of 31 October 2006:
…I just want to know whether he said anything. Did he say, “Do not take the child”?---No, he didn’t.
Okay, on November 7 where was the father when you took the child?---It was the same situation. He was with the child.
…
And did the father say anything when you took the child?---He said he didn’t agree.
Right. Okay. So on the first occasion he said nothing?---Yes.
And on the second occasion he said he did not agree?---No.
Coates FM then addressed the father:
I’ll ask you from the Bar table, do you agree with what that evidence is?
MR [OXLEY]: I think – maybe a memory issue.
FEDERAL MAGISRTATE: Well, I’m asking you your memory of it.
MR [OXLEY]: It’s not memory that’s recorded. I have recorded in evidence that what my evidence showing now in the first – in the amended affidavits it shows that I actually said I – you know, I do not consent.
FEDERAL MAGISTRATE: Yes. On the second occasion?
MR [OXLEY]: On the first, on the first.
FEDERAL MAGISTRATE: You say on the first occasion?
MR [OXLEY]: On the first occasion.
FEDERAL MAGISTRATE: Okay.
MR [OXLEY]: And similarly, your Honour, second - - -
FEDERAL MAGISTRATE: That’s all right, that’s all right, I want to know whether you agree or disagree.
MR [OXLEY]: Yes, sorry.
The learned Magistrate dealt with all of this as follows, culminating in the conclusion already quoted:
5.It emerged in evidence from the mother that on October 31, when she took the child, [B] from the father and drove him home, that the father took no objection. The father's evidence in that case was different and he says that in fact to all intents and purposes he did object. I am in the position where I have to decide the facts of that particular episode when in fact the mother took the child. It is important because that particular contravention of October 31 really revolves on what occurred when the mother took the child.
6.I asked the mother, and I asked because the father had not, whether the father had objected to her taking the child on the 7 November, and in fact the mother said that the father did. She was quite truthful, that was an admission against her interests, because she had said then that the father did object to the taking of the child. Because I found that she was truthful on that occasion I also find that she is truthful in her evidence that on the 31st the father did not object.
7.On that basis it appears to me that even though the father did not verbally consent for the mother to take the child, the fact that he made no objection is the same. So I find that on the 31 October there was no contravention because the father, by not objecting gave his approval for the mother to take the child, [B], in her vehicle and drop him at the father's home. On that basis the first contravention then is dismissed.
Accepting for present purposes that, notwithstanding that the father had not been cross-examined, it was open to Coates FM to decide the issue of fact about whether or not, at the swimming pool on 31 October 2006 the father objected to her proposal to take the child, in the context of all the communications between the parties on 30 and 31 October 2006, in my view it was simply not open to the Federal Magistrate to conclude that the father’s silence, as Coates FM found it to be, meant that he “gave his approval for the mother to take the child”.
At the very least, the failure by Coates FM to discuss the remainder of the evidence, in particular the earlier communication from the father to the effect that silence on his part would not constitute consent, amounts to a significant deficiency of reasons. Though there was no ground of appeal directed to that deficiency, the absence of reasons increases the readiness with which this court might find error.

The finding of “reasonable excuse” on 7 November 2006

In his affidavit relating to the second alleged contravention, the father deposed that there had been no discussion or correspondence between the mother and himself between 31 October 2006 and 7 November 2006. He said that on the latter date at 4.50pm the mother arrived at the pool. Again the three sat together for a time but when they moved towards the car park the father asked the mother if she was taking the child with her again. The mother said that is what the child wants and the father said that he did not agree to it. As seen, the mother conceded this in her evidence. Nonetheless, she took the child away.
In respect of the actions of 7 November 2006 the Federal Magistrate found that, because of the mother’s concession, he had:
…no alternative but to find that a contravention had occurred.
However, Coates FM said the Family Law Act allowed a person who contravenes orders “an excuse at law called reasonable excuse”. As earlier indicated, the contents of the mother’s letter of 31 October 2006 were treated by Coates FM as significant to the question of reasonable excuse. The balance of the letter beyond the sentence previously paraphrased was:
I would like to remind you that you have history of taking [B] to work, University and Family Court which [B] does not get proper supervision.
On 10 November 2000, we agreed to a consent order with family court mediator [Ms West]. This consent order had a clause
“If one party is not available to care for [B], then the other party is to given the first option to have the care of [B].”
This clause was included because you had been taking [B] to work while I was available for [B]. [Ms West] told you that you were not allowed to take 3years old boy to your tour bus with group of Japanese tourists. You have said you would not do it again.
On 18 July 2006, we agreed to a new consent order. You, myself [T] the child representative, and [CW], all sat in court and discussed about [B]’s order. During the process of reaching current agreement, I mentioned that you had taken [B] to Uni in the evening while you attend a course. According to [B], it had happened several times. Also I mentioned that you had taken [B] to a family court while you were doing your own thing.
[T] (the child representative) was displeased and told you not to take [B] to Uni or Family Court. You said to [T] that you would not take [B] to these places anymore.
We believed your word and did not put the clause in the order “If one party is not available to care for [B], then the other party is to given the first option to have care for [B].” Now, you are taking advantage of it and again taking [B] to Uni, which [B] does not get proper care of parent. Also you are threatening me by saying you will take me to court again.
I strongly suggest that you keep your word and follow [T]’s advice.
You must let me know ASAP if you take [B] home after swimming or I will pick him up from pool 5pm today. You can send letter by fax on […].
[Ms Inglis]
Coates FM said:
9.I have read thoroughly all of exhibit 1 and I see that former orders made between the parties, and some of these are orders by consent, stated that if one party is not available to care for [B], the other party is to be given the first option to have the care of [B]. While I note that that is not in the current order, on the mother's note to the husband, and that is in exhibit 1, it seems to me that she was always acting on that premise.
10.As I stated earlier, had the full text of the exhibit been made available by the father, the Court would have been alerted earlier as to what had occurred between the parties. In fact the father could have questioned the mother and indeed still had the opportunity to question the mother after exhibit 1 was admitted into evidence.
11.The mother also stated from the witness box that she took the child because the child had told her words, or words to the effect, that he gets bored and he would rather go home to his father's house. The father agreed that that is what the child said or might have said, although he does not agree that the child may mean what he said. However, this is a Court of law and we cannot know what is in another person's mind, but even on the father's evidence he agreed that the child had said words or words to that effect.
12.I do not think it is unreasonable that a mother would ignore what a child said in the circumstances, especially when she did not set out to clearly flout the orders that are in place between the parties, which are for the benefit of the child, [B]. If she in fact had taken the child home and held him over, overnight, that would well be a different thing, but in this case, clearly she has acted, in my view, in the best interests of [B] by taking him to the father's residence.
13.There is no evidence that she intended to hold him over or did hold him over; all she did was take him to the father's residence. On that basis, while I find the contravention did occur, I find that she had reasonable excuse and I hereby dismiss that application.
The “premise” upon which Coates FM considered the mother was acting on 7 November 2006 is unclear. It may be that the mother believed that the current orders included the “option” provision of previous orders. But that premise would be directly contrary to the content of exhibit 1.
More likely it was a premise along the lines that the mother thought it was reasonable for her to do what she did, given the matters she had set out in her letter.
If that is so, it is not a position which, to my mind, fits within any of the specific circumstances of excuse set out in s 70NAE of the Act. I cannot tell whether the Federal Magistrate thought that it did. He did not mention the section.
Although “reasonable excuse” may be found outside the circumstances set out in s 70NAE, in my view, there had in the instances in this case to be something more than a belief, however reasonable and even if objectively “in the best interests” of the child, that he would be happier doing one thing rather than another.

In In the Marriage of Gaunt (1978) FLC 90-468, dealing with the corresponding provision preceding s 70NAE, the Full Court (Evatt CJ, Emery SJ and Hogan J) said (at 77,398):
The essential question is this – can a party who does not agree with a Court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the Court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the Court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.
…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”. Evidence of changed circumstances or of matters not considered when the order was made might be.
However, the Court then added (at 77,398):
We would agree [with the trial Judge] that proceedings under sec. 70 are for the purpose of securing compliance with the Court’s order. Such proceedings are not the appropriate medium for challenging the original order or for varying it. They are not the appropriate medium for relitigating the question of the welfare of the children, though that must remain an important factor (emphasis added).
While the mother’s position might have been accepted by Coates FM as amounting to a change of circumstances, namely the father doing what he said at the time of the orders he would not do, there is no discussion of this or other considerations that would then be pertinent in the reasons of the Federal Magistrate.
His essential reasoning seems to be contained in the first sentence of paragraph 12 set out above (ie. “I do not think it is unreasonable that a mother would ignore…”), but in my view this does not amount to an adequate consideration of the sufficiency of the excuse to avoid the consequences of contravention.
As the editorial note in Butterworth’s Australian Family Law, vol 1 (at 205-1-07) 1358.6 reads:
…having regard to the reversal of the onus of proof in s 70NJ(1)(ba), and the limited scope of the express words of subs (3)-(5), the court should be cautious in finding that there is a “reasonable excuse” in cases where respondents contravene parenting orders on the basis that complying with those orders is contrary to the child’s interests.
In my view the learned Magistrate failed to give proper consideration to the question of “reasonable excuse”.
An additional concern is that, while the reference by Coates FM in the last line of paragraph 12 of his reasons to the best interests of the child is not necessarily in the context of a principle governing the determination of the applications, during the hearing he said:
FEDERAL MAGISTRATE: It’s a contravention hearing but the best interests of the child are still of paramount importance here.
This may well represent a misunderstanding of the position.
Section 60CA of the Act provides that, when the court is making a parenting order in relation to a child, the child’s best interests are the paramount consideration. However, the definition of parenting order within s 64B is concerned with orders made in relation to with whom a child lives and/or spends time, orders relating to parental responsibility, child maintenance, steps to be taken before applying for a variation, the process for resolving disputes and any other aspect of the care of the child or parental responsibility. Section 64B does not in my view include orders in respect of contraventions of parenting orders, as parenting orders for the purposes of Pt VII.

The conduct of the hearing

When the matter was called on, the Federal Magistrate asked the father for a brief outline of the contraventions. He then identified the material that the father was relying upon and asked the mother if she had filed any material. Upon her negative response, he said:
No, you don’t – well just listen to me you don’t have to file material because this is a contravention proceeding, however, by not filing material, you have to give evidence which means more than likely you’ll get into the witness box and give evidence from there.
The Federal Magistrate then adjourned to read the material and upon resumption raised the question of the exhibit to the father’s affidavit, which was the mother’s letter of 31 October 2006 but with passages whited out. After some discussion, the Federal Magistrate said that he might return to that matter and then asked the father if that was his entire case, to which the father responded in the affirmative. The Federal Magistrate did not then ask the mother if she wished to cross-examine the father, but said:
…Ms [Inglis], do you have an explanation for what has occurred?
The mother then handed the letter (exhibit 1) to the Federal Magistrate and it was received into evidence. The mother then entered the witness box, the Federal Magistrate saying:
…Ms [Inglis] I’ll get you to go into the witness box and then give your evidence in relation to these contravention applications. I think you’ve given evidence before, havn’t you?
MS [INGLIS]: Yes, I have.
The father said:
Your Honour, do you want me to do the preliminary (indistinct).
The Federal Magistrate said “No you don’t dispute who Ms [Inglis] is do you?” Mr [Oxley] said “I’m not sure about this”. The Federal Magistrate then said “Well you may get on and question Ms [Inglis]”. The father then briefly cross-examined the mother. Therefore, the mother gave no evidence in chief but was immediately subjected to cross-examination.
Next, the Federal Magistrate asked the mother some questions. The Federal Magistrate then asked the father if he disputed that [B] had asked his mother to actually pick him up and take him to his place and whether he disputed that [B] seemed to get bored while he was waiting.
Rule 25B.04 of the Federal Magistrates Court Rules 2001 applied to the contravention applications and provides:
At the hearing of the application, the Court must:
(a)inform the respondent of the allegation; and
(b)ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c)hear any evidence supporting the allegation; and
(d)ask the respondent to state the response to the allegation; and
(e)hear any evidence for the respondent; and
(f)determine the proceeding.
In Vlug v Poulos (1997) FLC 92-778, the Full court stressed that the application of O 35, r 14 (the predecessor and essentially identical rule to r 25B.04) must be strictly followed (at 84,598-84,599):
“…[I]n relation to the hearing of the husband’s s 112AD application in this case we are somewhat concerned about the procedure which was followed (or perhaps more correctly not followed) at the hearing. Once his Honour decided to permit the application to proceed and although reserving his decision on the competency of the application, he should have ensured that the procedure prescribed for the hearing of contravention applications by O 35 r 14 was adhered to…
…
A consideration of the transcript…might perhaps lead to the conclusion that the prescribed procedure was followed in a very general or broad way. However it was certainly not strictly followed, and had there ultimately been a finding that the wife had, without reasonable excuse, breached the order in question, we may well have considered it unsafe to permit that finding to stand given the penal sanctions which such a finding can attract (emphasis added).
The following concerns about the hearing arise:
•The mother was not informed of the allegations and asked whether she admitted or denied them.
•The mother was not asked if she wished to cross-examine the father.
•Neither party was informed of any need to put his/her case to the other party.
•The mother gave no evidence in chief.
•Questions were asked of the mother by the Federal Magistrate after the cross-examination by the father but neither party was asked if he/she wished to ask about anything that arose out of that questioning.
•Some “evidence” seems to have been sought by the Federal Magistrate from the well of the court.

Conclusions

It follows from what I have said of the father’s arguments that the appeal succeeds. It may well also have been proper to allow the appeal because of the flawed conduct of the proceedings, even though the father did not argue that as a ground.
While the case is of fairly simple facts, as a matter of principle I am adverse to deciding the application upon the evidence adduced in a rather unsatisfactory hearing. In the circumstances, I consider the father’s applications should be remitted for rehearing, if he choses to proceed with them.
The father sought a certificate under the Federal Proceedings (Costs) Act 1981 in respect of his expenses, such as transcript cost, and I consider a certificate appropriate.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 16 March 2007