Pascoe and O’Keefe

[2018] FamCA 741

FAMILY COURT OF AUSTRALIA

PASCOE & O’KEEFE [2018] FamCA 741

FAMILY LAW – ORDERS – CONTRAVENTION – whether orders contravened with reasonable excuse – where no reasonable excuse – where makeup time ordered – costs – where respondent wholly unsuccessful – order for respondent to participate in parenting program.

Family Law Act 1975 (Cth) ss 70NAE, 70NEB, 117

APPLICANT: Ms Pascoe

RESPONDENT: Mr O’Keefe

FILE NUMBER: CAC 790 of 2015

DATE DELIVERED: 14 September 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 14 September 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid, ACT

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. By way of compensatory time D shall spend time with the mother from 3pm Friday 14 September 2018 until 9am Monday 17 September 2018.

2. Mr O’Keefe is to pay the costs associated with Ms Pascoe of the contravention proceedings, as assessed or as agreed. 

3. Mr O’Keefe is directed to attend the Parenting After Separation Program run by the T Group organisation when a place next becomes available for him to attend that program, noting that that is not expected to take place until Term One, 2019.

4. In support of the above order for the attendance at that program, Mr O’Keefe is, within 28 days of today's date, to take all steps to enrol in that program and once enrolled to forthwith forward evidence of that enrolment to the solicitors to the Mother.

5. Further in support of the order for the attendance at the Parenting After Separation Program, Mr O’Keefe is to attend that program in accordance with the requirements of the course and at the conclusion of that course is to forthwith provide to the solicitors for the Mother evidence of his attendance at that course.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pascoe & O'Keefe has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 790 of 2015

Ms Pascoe

Applicant

And

Mr O’Keefe

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. A Contravention Application was filed on 29 August 2018 regarding the failure of the father to deliver D for time with her mother on 24 August 2018.  He was obliged to do so by the operation of order 4(a) of the orders of 21 May 2018. 

2. He accepts that he did not deliver D on that occasion and accepts that he has contravened the order.  However, Mr O’Keefe says that he had a reasonable excuse for the contravention of the order.

3. That reasonable excuse centres upon D's behaviour following her return to him on 13 August 2018, being the previous weekend’s visit that she had with her mother.  That behaviour and comments made by D during that period of time caused him to form a view that there was an issue in respect of D's safety.  He says that this constitutes a reasonable excuse for the withholding of D.

4. The material that he relies upon in particular, is that he says that D was unsettled or upset, that she had nightmares on the evening of 13 August, awoke from them upset and said “[X] said go away, we don't want you here."  He also points to D's reluctance to return to her mother's home and also her reluctance to go and visit his extended family, a matter for which she is not normally reluctant.  He also alleges in his affidavit that as the time approached for D to spend further time with her mother on 24 August, her anxious behaviours increased and that there were several tantrums and that she also said that she did not want to visit the mother.  He says that she did this in the context of him encouraging her to visit the mother.  His affidavit does not indicate that at any point he sought to engage with the mother about these issues.  It may be observed that it is a single evening of nightmares and the assertion of generalised behaviour. 

5. The father subsequently took D for assessment with Ms U, psychologist.  Ms U identified no issues for D, stating:

   In our session, [D] was unable to state whether she felt afraid of returning to her mother's residence, or why.  As such, it was difficult to get a sense of [D's] experience from her perspective.  She denied being afraid of anything, however, when asked about her sleep, she reported “[X] wakes me up and I can't sleep”.  She was unable to elaborate further on this. 

6. It should be noted that D is currently three years old, due to turn four in November.

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

   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… [and it then names series of subsections].

8. Of particular relevance is subsection 5, which states:

   (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).

9. That is, it requires a belief that is formed on reasonable grounds that the non-allowance at the time is necessary to protect the health or safety of, in this case, D.

10. In this case, of the matters that were set out by Mr O’Keefe, the highest that the matter could rise to was the possibility that a suspicion would be caused in Mr O’Keefe's mind that D had been the subject of some adverse behaviour on the part of X.  The height of the description made by D to him was what was said by X was “Go away, we don't want you here".  That was the height of the conduct that was alleged to have been engaged in by X and the height of the adverse behaviour nominated as potentially occurring in the mother's household. 

11. Mr O’Keefe then relied upon distress, upset and resistance on the part of D.  These in combination were not sufficient to set out reasonable grounds for the formulation of a belief that it was necessary to protect the health or safety of D to withhold her.  I find that there was no reasonable excuse for the contravention that is, Mr O’Keefe has contravened the order without reasonable excuse.

12. Having found that the father has contravened, without reasonable excuse, the orders of 21 May 2018, in that he contravened order 4(a) of those orders by failing to provide D to spend time with her Mother on 24 August 2018 application has been made by the Mother for three consequences pursuant to s70NEB of the Act. 

13. I note in considering those consequences that the purposes of those consequences are not the purposes of punishment, but they are the purposes of ensuring enforcement and compliance with the court orders.

14. The first application that is made is an application for make-up time.  While the application was initially put on the basis that D had missed two periods of time with her mother, s70NEB(1)(b), which deals with making an order for compensatory time, deals with it in terms that the compensatory time is in relation to the current contravention.  The current contravention is for a single period, even though it is alleged that there have been more than one periods that D has been withheld.  Given that the focus of the compensatory time is for that single contravention, then the compensatory time should also be for a single weekend. 

15. I note that no opposition was made by Mr O’Keefe to the idea of compensatory time, although he still opposes (as he opposed during the final determination of this matter) D spending any time in the presence of Mr Pascoe. 

16. Mr O’Keefe sought that the compensatory time not take place on the coming weekend which is due to commence today Friday, 14 September 2018 for two reasons.  The first reason is that he wants to be able to speak to D to get her used to the idea.  The second reason is that D has an engagement in relation to a party being arranged by her aunt.  While involvement with the extended family for D is important and having the benefit of that involvement and the involvement of her aunt is also important, in this case D has not seen her mother for a month and that reunion with her mother should not be delayed.

17. Compensatory time will be ordered and it will commence today. 

18. The second matter that was raised was the question of whether or not Mr O’Keefe should be required to pay the costs of the mother for today's contravention proceedings.  That application is opposed by Mr O’Keefe.  It is true that the default position is that each party will bear their own costs.  However, there are exceptions which may be justified in accordance with the provisions of s117 of the Act.  Two in particular arise today. 

19. The first is that Mr O’Keefe has been wholly unsuccessful in the proceedings today.  He has been found to have contravened without excuse. 

20. The second is that the proceedings have been necessitated by his failure to comply with court orders. 

21. Those two matters are sufficient to allow a departure from the usual rule.  I note that it also must be recognised that the Mother is in receipt of Legal Aid and I have no other information as to the party's financial circumstances.  Those matters do not tend one way or the other in determining whether or not an order as to costs should be made in this particular case.

22. The third matter is whether or not Mr O’Keefe should attend a post-separation parenting program.  He does not oppose such an order and I accept that such an order is appropriate. 

23. There are clearly difficulties for the parents in proceeding with interacting with each other and with the care of D and as to the care of D in the context of issues that arise in the other party's household, to the extent that a parenting after separation program may assist in developing skills and perspectives to enable the Father to deal with the issues that he faces.  It is appropriate that such be participated in, in the expectation that it may be of use to him in assisting him to comply with the orders in the future. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 14 September 2018.

Associate: 

Date: