PARSONS & NEW

[2015] FCCA 1137

FEDERAL CIRCUIT COURT OF AUSTRALIA

PARSONS & NEW [2015] FCCA 1137

Catchwords:
FAMILY LAW – Contravention application – reasonable excuse – reasonable enquiry for information not provided – police involvement with Father – lack of evidence – no case to answer.

Legislation:

Family Law Act 1975, ss.70NAE(1), 70NAE(5), 70NAE(1), 70NAF

Federal Circuit Court Rules 2001

Applicant: MR PARSONS

Respondent: MS NEW

File Number: MLC 3943 of 2012

Judgment of: Judge Stewart

Hearing date: 27 March 2015

Date of Last Submission: 27 March 2015

Delivered at: Melbourne

Delivered on: 27 March 2015

REPRESENTATION

The Applicant appeared in person.

Counsel for the Respondent: Mr Mort of Counsel

Solicitors for the Respondent: Vassis & Co

ORDERS

1. Count one of the Father’s Contravention Application filed 16 December 2014, namely that on 19 August 2014, the Mother without reasonable excuse make the child available to the Father be dismissed.

2. Count two of the Father’s Contravention Application filed 16 December 2014, namely that on 22 August 2014, the Mother without reasonable excuse make the child available to the Father be dismissed.

3. Count three of the Father’s Contravention Application filed 16 December 2014, namely that 26 August 2014, the without reasonable excuse make the child available to the Father be dismissed.

4. Count 4 of the Father’s Contravention Application filed app 26 August 2014 the Respondent did without reasonable excuse withhold the current residential address of the child, be struck out with no case to answer.

5. The reasons given this day by Judge Stewart for the decision be transcribed and be made available to the parties.

6. Until further order, the orders made on 21 March 2013 for X born (omitted) 2011 (“X”) to spend time with the Father, be and are hereby suspended.

7. Pursuant to section 11F of the Family Law Act 1975 the parties attend a (Child Inclusive) Child Dispute Conference on 23 April 2015 with a Family Consultant nominated by the Director of Child Dispute Services on 23 April 2015 to discuss the welfare of X born (omitted) 2011 and endeavour to resolve the difference between them, with the Mother to attend at 9.00am with the X, and the Father to attend at 10.00am.

8. The Father to spend time with X as follows:- 

   (a)Each Sunday from 4.30pm to 7.30pm to commence on 30 March 2015;

   (b)Each Wednesday from 4.30pm to 7.30pm to commence on 1 April 2015;

   (c)On (omitted) 2015 for X’s birthday at times to be agreed between the parties, failing agreement from 3.00pm to 6.00pm; and

   (d)At such further or other times as agreed between the parties from time to time.

9. The Father’s time with X be conditional upon any time the Father spends with X to take place at the residence of the Paternal Grandmother, and the child not to be removed during any period of time from the residence of the Paternal Grandmother, unless accompanied by the Paternal Grandmother.

10. In order to facilitate the Father spending time with X, the Mother to deliver to the X at the commencement of time to the residence of the Paternal Grandmother and to collect X at the conclusion of the Father’s time.

11. The proceedings are adjourned to 24 June 2015 at 9.45am in the duty list.

12. Leave granted to the parties to issue more than 5 Subpoenas in these proceedings.

13. The Father be permitted to contact X by telephone or other electronic communication at reasonable times and for a reasonable period as agreed between the parties, failing agreement once a week, on Friday between 4pm to 7pm.

14. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders is set out in Attachment A and these particulars are included in these orders.

15. The Mother’s costs fixed at $4,655 be reserved.

16. On or before 24 June 2015, each of parties file and serve any Financial Statement or any Affidavit of Financial circumstance to assist in the consideration of any costs Application to be made by the Mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3943 of 2012

MR PARSONS

Applicant

And

MS NEW

Respondent

REASONS FOR JUDGMENT

1. This matter comes before the Court on the Contravention Application of the Father, that application being filed on 23 March 2015. The application alleges a number of breaches, the majority of which allege that the Mother did not make the parties’ child X born (omitted) 2011 (“X”) available to spend time with the Father pursuant to orders made on 21 March 2013.  Those orders provided that X spend time with his Father on Tuesdays from 8.30am until 11.30am, and each alternate weekend from 5.00pm on Friday until 7.00pm on Sunday, together with various other orders.

2. X was born on (omitted) 2011 and he is, therefore, aged three and a half, almost four years old.

3. The first count alleges that on 19 August 2014 the Mother did not allow the Father to spend time with X.

4. The second occasion was on 22 August 2014, and the third occasion was on 26 August 2014, and there is a count each with respect to those two dates, and then there was a final count of an alleged breach on 26 August 2014 that the Mother did not provide the current residential address for X to the Father.

5. I have already struck out the final count, namely, that without reasonable excuse the Mother failed to provide a current residential address for X, on the basis that there was no case to answer.  There was no evidence in the Father’s viva voce evidence, or in his affidavit upon which he relied, sworn on 16 December 2012 that suggests that she failed to do so.

6. In relation to count one, I propose to deal with that at first instance, that being the count relating to 19 August 2014.  The   Father gave evidence, was cross-examined, and conceded during cross-examination that with respect to the date of 19 August 2014, when he was being interviewed by police, following a warrant that had been executed at his home – that he had the police contact the Mother on his behalf to advise her that he would be unable to exercise time with X on that date. 

7. Accordingly, in relation to that count, given that the orders provide for agreement between the parties, and even if they did not do so, there is no case to answer with respect to that. The facts bear out that there has been no breach on that day.

8. The two counts alleging the Mother has contravened the orders on 22 and 26 August 2014 can be dealt with collectively. What is apparent is that the Father’s drug use has been argued between the parties, and a concern of the Mother’s, even by looking at the orders that were made by consent in 2013, and in particular order 6, where that the Father be restrained from consuming illicit substances 24 hours prior to or during any period of time when the child is in his care.  There is also a subsequent order that restrains the Father from leaving the child in the sole care of Ms S, who is his de facto partner, which will become relevant later in these reasons.

9. The Mother became aware – and she has sworn an affidavit – that the   Father had a police warrant executed at his premises, that warrant being executed by the police a number of days prior to 19 August 2014.  She says that on 12 August 2014, she was notified by a Detective Senior Constable S that the Father was in police custody and would be unable to attend the scheduled changeover at 4.00pm.

10. The Mother says that she was also informed that there had been a warrant executed in respect of the Father’s residence earlier that day, and that she was informed that the police had discovered illegal drugs and associated drug paraphernalia at the Father’s premises, which involved ice pipes, which as I understand are used to smoke methamphetamine, and that there were further charges pending in relation to drugs and other matters, which have not been disclosed by the police at this time. 

11. I pause here to record that the Father, in the witness box, denied that drug paraphernalia had been located at his home, and also denied that he took drugs or was under the influence of drugs at any time and, perhaps more significantly, exposed the child X to any drug use.

12. The salient point is not whether or not the Father is involved in that conduct for the point of the contravention application, but rather, having regard to what had happened and what the Mother had been informed by the police, whether her conduct in stopping or not facilitating X spending time with the Father was, in the circumstances, reasonable. 

13. The evidence reveals – and the cross-examination of the Father further revealed – that the Mother has sought particulars on at least two occasions from the Father as to exactly what the substance and particularity of the outstanding police matters had been.  It seems that on each occasion, rather than providing particulars of the police issues that pertained to the Father and to his partner Ms S, the Father simply, in a general way, said to the Mother words to the effect of there was nothing for her to worry about.

14. In my opinion, and in my view, the conduct of the Father was quite unreasonable. It was not an unreasonable request by the Mother to seek particularity as to the involvement of the police at his home, and to seek particularity with respect to why it was that the police were involved in such a manner at the Father’s home. 

15. X is, of course, of very tender years. The Mother had a pre-existing concern with respect to the Father’s drug use, and also with respect to the Father’s partner which I will come to shortly. Again, I want to make it clear, I’m not making any finding as to whether there was drug paraphernalia at the Father’s home, but rather, whether or not in the circumstances the Mother was entitled to feel anxious and concerned about the health or safety of X in the Father’s care.

16. The Father said to me in his evidence that the police matters were essentially able to be excused on the basis, I think, of words to the effect that everybody makes mistakes. With all due respect, I disagree.  The involvement of the police in attending at someone’s home on a warrant is a serious matter. It is not every member of the community that has the police attend their home and search their premises, and in my view it is entirely reasonable that the Mother was concerned about the environment into which she was expected to put X, pursuant to those orders that were made in 2013.

17. To add insult to injury, to use a colloquial phrase, the Father persistently refused to provide the Mother with particulars as to what was going on. As a somewhat tangential vignette in this case, I should also note that the Father’s de facto partner has apparently – and according to the evidence before the Court – been charged with significant identity fraud with respect to the Mother. Again, the Father, in my opinion, was evasive with respect to his knowledge of these charges, and even though he concedes that he’s involved in a de facto relationship with Ms S, he sought to persuade me that he knew nothing about these charges. 

18. In terms of the welfare of the parties’ son, I would expect a reasonable person to regard the Mother’s request in relation to those charges as being a reasonable request for particularity in order to ensure the safety of their son. The fact that the Father does not see the need to either make inquiries as to the nature of those charges or to provide the Mother with particulars, again, in my view, is unreasonable and I do not regard it as unreasonable that this has heightened the Mother’s anxieties.

19. Section 70NAE(1) of the Family Law Act 1975 sets out the meaning of a reasonable excuse for contravening an order.  It states that:

    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).

    and, for this purpose, it is subsection (5) that provides as follows:

    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).

    Section 70NDA, subparagraph (c) prescribes that the onus falls on the Respondent – in this case, the Mother – to establish the existence of a reasonable excuse, and section 70NAF of the Family Law Act 1975 provides that the standard of proof required is on the balance of probabilities.

20. It is, therefore, incumbent on the Mother to establish that she believed on reasonable grounds, that not allowing X to spend time with the   Father in accordance with the Court’s orders was necessary to protect the health or safety of either X or herself. As I have set out, in my view it is reasonable and I find that the Mother on reasonable grounds held a genuine belief that in refusing to comply with the Court’s order it was necessary to protect the safety of X. 

21. That belief was based at least partially on her pre-existing anxieties as to the concerns surrounding the lifestyle and environment of the   Father’s home which I have set out, exacerbated by the Father’s failure to provide information to the Mother. In the entirety of the circumstances including involvement with the police and the charges with respect to Ms S, her anxieties were heightened and elevated by both the fact of the police involvement and the lack of particularity provided by the Father.

22. I also note that since the Mother has failed to comply with the orders she has also taken steps to ensure that X continues to see his Father in a way that she believes is safe, and in my view that corroborates a position that she held a genuine belief that the orders were unsafe for X, but was willing to facilitate time in a way that in her view was safe. Accordingly, in relation to those two charges, I dismiss those two counts on 22 and 26 August on the basis that the Mother has a reasonable excuse for not complying with the orders.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Stewart

Associate: 

Date:  6 May 2015