Pickering and Pickering (No 3)

[2011] FamCA 513

FAMILY COURT OF AUSTRALIA

PICKERING & PICKERING (NO 3) [2011] FamCA 513

FAMILY LAW - PRACTICE AND PROCEDURE – contravention application filed by the father – where the mother seeks that the application be dismissed due to typographical error in the supporting affidavit – mother’s application dismissed.

FAMILY LAW - CONTRAVENTION – application by the father alleging that the mother has contravened previous orders – where the father has failed to establish on the balance of probabilities that the mother has contravened the orders – where the Court is satisfied that in any event the mother has established a reasonable excuse in that she did not understand the obligations imposed by the orders – father’s application dismissed.

FAMILY LAW - CONTRAVENTION – application by the father alleging seven counts of contravention against the mother – where the first four counts were dealt with in this hearing – where the mother has admitted the contravention in count two – where the mother has failed to establish a reasonable excuse in relation to count two – where no sanction has been imposed in relation to that contravention – where the mother has established a reasonable excuse for counts one, three and four – father’s application in relation to those counts dismissed.

Family Law Act 1975 (Cth) ss 60CC, 70NAC, 70NAE & 70NBA

APPLICANT: Mr Pickering

RESPONDENT: Ms Pickering

FILE NUMBER: ADF 1919 of 2005

DATE DELIVERED: 22 June 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 22 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. The father’s Contravention Application (document 113) filed on 29 November 2010 is dismissed in relation to paragraphs 1 and 4 of the Order of 22 October 2008.

2. UPON NOTING THE UNDERTAKING of the father that he will not bring any further proceedings by way of contravention in relation to orders concerning the child M born on … September 1993.

3. The Order of 22 October 2008 is amended by removing the reference to M in that Order and a separate Order is made being that:

(a)the parties have equal shared parental responsibility for the child M;  and

(b)the child M live with the mother or the father in accordance with M’s wishes.

1. The father’s Contravention Application filed on 29 November 2010 (document 115 on the Court file) is dismissed in relation to Count 1 (dated 13 September 2010) concerning the child H born … June 1995.

1. UPON THE COURT FINDING THAT Count 2 (dated 20 September 2010) of the father’s Contravention Application filed on 29 November 2010 (document 115 on the Court file) is proven, but that the reasonable excuse has not been proven and no sanctions are imposed.

1. UPON THE COURT FINDING THAT Count 3 (dated 2 October 2010) of the father’s Contravention Application filed on 29 November 2010 (document 115 on the Court file) is proven, but that the mother had reasonable excuse.

1. UPON THE COURT FINDING THAT Count 4 (dated 11 October 2010) of the father’s Contravention Application filed on 29 November 2010 (document 115 on the Court file) the mother had reasonable excuse.

IT IS NOTED that publication of this judgment under the pseudonym Pickering & Pickering (No 3) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1919  of 2005

Mr Pickering

Applicant

And

Ms Pickering

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The mother asks that I dismiss the contravention application on the basis that the affidavit in support of the contravention does not set out evidence which relates to the correct year of alleged contravention.  The contravention application filed by the father refers in paragraph 7 to an alleged breach of the order of October 2008 in relation to early March 2009 at 3.00 pm, and the place is Adelaide Suburb 1.  The statement of the alleged contravention is that:

   “The mother took [M] into her care, and never returned her to me, despite the Court order saying that [M]  lives with me.”

2. The affidavit in paragraph 2 commences:

   “In early March 2010 I was visiting the paternal grandparents’ house in [Adelaide Suburb 1] when my daughter [M] advised me that she didn’t want to relocate to Queensland with her siblings, and would go and live with her mother.”

3. The submission of the mother is that the contravention application should be dismissed, because the date in the affidavit is not correct. 

4. The issue did not come to the notice of either of the parties until I asked questions, whilst the father was giving his evidence.  He then said it was a “typo” in the affidavit;  that it was simply a mistake in the affidavit.   Bearing in mind the background to these matters and that contravention applications are serious matters, but also bearing in mind the other provisions of the Family Law Act 1975 (Cth) (“the Act”) (in particular Part VII), I do not propose to dismiss the contravention application at this stage, but will hear the mother’s evidence in relation to her reasonable excuse.

5. I do not grant the mother’s application to dismiss the contravention application at this stage, and will require her to give evidence in relation to reasonable excuse.

6. The first contravention application filed by the father on 29 November 2010, document 113, alleges that the mother has breached paragraphs 1 and paragraph 4 of the order of 22 October 2008, which relates to M.  The contravention application alleges that the contravention is:

   “The mother took [M] into her care and never returned her to me, despite the Court orders saying that [M]  lives with me.”

7. I have heard the oral evidence of the father, I have accepted the affidavit of the father, and heard the oral evidence of the mother.  The father’s oral evidence was that M moved to live with the mother because the father had told her that he was moving with the children to Queensland;  that M did not want to go to Queensland, and did not want to lose her circle of friends.

8. The mother’s oral evidence was that she understood or believed that the provisions of paragraph 3 of the order, allows M to spend as much time with her as she wished, and that she was therefore not in contravention of the order, or breaching the order of 22 October 2008.  The particular provisions of paragraph 3 need to be seen in the whole context of the order of 22 October 2008, which provided for the children to live with the father, for the parties to have equal-shared parental responsibility for the children, and for the children to spend time with the mother as follows:

   “Upon noting that the time [M] spends with the mother shall be subject to [M’s] wishes.”

9. Then there are specific dates and specific arrangements set out for alternate weekends, school holiday and special occasion time for the three children to spend with the mother.  The mother maintains that she believed that the wording in paragraph 3:

   “Upon noting that the time [M] spends with the mother shall be subject to [M’s] wishes.”

   meant that she could spend as much time with the mother as she wanted, and that in accepting M’s desire to live with her, the mother believed she was not in breach of the order of 22 October 2008. 

10. The mother presented to the father in cross-examination email exhibit 1, which she sent to the father the day after M came to live with her, asking for his feedback.  The evidence indicates that she did not receive any more communication from the father.  No steps were taken by the father to enforce the order in relation to M prior to the instigation of the contravention proceedings in November 2010. 

11. In final submissions this morning the father has accepted that the mother did not understand the orders.  He accepts that as her reasonable excuse. 

12. The provisions of the Act division 13A refer to the consequences of failure to comply with orders and other obligations that affect children. Section 70NAC has the title Meaning of Contravening an Order. It says:

    “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, or

    (b)otherwise he or she has:

    (i)intentionally prevented compliance with the order by a person who is bound by it, or

    (ii)aided and abetted such contravention of the order by a person who is bound by it.”

13. One of the provisions in relation to reasonable excuse in section 70NAE (2) is:

    “(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.”

14. There is obviously an interaction between the requirement in section 70NAC for the applicant to establish the intention of the mother to fail to comply with the order, and the provisions of section 70NAE(2), which relate to understanding the obligations imposed by the order on the person. 

15. I accept that the order made in October 2008 provided for all three children to live with the father, and that since March 2009 M has resided with the mother.  There has been no application to the Court to change that order, the mother having given her explanation for this in her oral evidence.  The child, M, was born in September 1993, and therefore in 2009 was 15, approaching 16.

16. The evidence of both parties clearly indicates that M brought about the situation where she moved from the household of the father, and has remained living in the household of the mother. Taking into account the provisions of the Act, I am in some doubt as to whether the father has established on the necessary burden of proof (the balance of probabilities) that the mother intentionally failed to comply with the order. In any event, I am satisfied that the mother has established the reasonable excuse for contravening the order within the provisions of section 70NAE(2), in that she did not at the time of the contravention understand the obligations imposed by the order, and I am satisfied that the respondent ought to be excused in respect of that contravention.

17. In relation to the failure of the father to prove that the mother intentionally failed to comply with the order, the balance of probabilities is such that, having heard the evidence of the mother, and evidence of the father, there remains sufficient doubt in considering the evidence to swing the balance in favour of the mother.  Therefore the father has failed, on the balance of probabilities, to establish that she intentionally failed to comply with the order.

18. If I am wrong in that regard as indicated earlier, I would, in any event, find that the mother had reasonable excuse for contravening the order, considering the actions brought about by the father’s clear intention to move the children to Queensland, and M’s wishes.  These are factors which would clearly provide a reasonable excuse, so far as it relates to the child, M’s psychological and emotional welfare.

19. On the basis that the father has failed to establish the contravention, I therefore dismiss that contravention.

20. I have heard the submissions of both parties in relation to the orders that should be made on the dismissal of the contravention application in relation to M. The provisions of the Act and, in particular, section 70NBA provide that:

    “(1)     A Court having jurisdiction under this Act may make an order varying a primary order if:

    (a)proceedings in relation to the primary order are brought before the court having jurisdiction under this Act; and

    (b)it is alleged in those proceedings that a person committed a contravention of the primary order and either:

    (i)the court does not find that the person committed a contravention of the primary order; or

    (ii)the court finds that the person committed a contravention of the primary order.”

21. It is significant in this matter that M will be 18 in September 2011.

22. The significant factors set out in section 60CC are to protect the child, and to take steps to ensure a meaningful relationship exists between the parents and the child.  Taking into account the history of the matter and the age of M, I gave consideration of simply removing the child, M, from any mention in these Court orders, but take into account the history of the proceedings between these parties.  I consider that it is regrettably necessary for there to be a Court order which provides for M to live with the mother or the father in accordance with her wishes.

23. Obviously that order will expire in September this year when M turns 18. The Court has an obligation under the provisions of the Act to consider other orders, and, in particular, to consider orders for costs, but in this matter the mother appears unrepresented, so there will be no order for costs.

24. The next contravention application is the contravention application in relation to the child H, dealing with the dates from 13 September through to 25 October 2010.

25. This is the contravention alleged to have occurred on 13 September 2010 brought by the father, alleging that at 9.00 am on 13 September 2010 at Adelaide Suburb 1, the mother contravened the orders, paragraph 1 and 4 of 22 October 2008, in that the mother failed to return H into the care of the father to the paternal grandparents’ house.  At the time of this alleged contravention the orders of 22 October 2008 had been varied to permit the mother to spend time with the children each weekend by way of make-up time following upon findings that their father had contravened the orders by removing the younger children from South Australia and taking them to Queensland.

26. Paragraph 1 of the order of 22 October 2008 was not varied by those temporary orders.  That provided that the children, M, H and S, live with the father.  Paragraph 4 referred to in the contravention application states:

    “That all handovers not occurring at the said children’s schools are to occur at each other’s homes and in default of agreement then to be at the maternal grandparents’ home at the commencement of times the children are in the mother’s care, and the paternal grandparents’ home at the conclusion of the times the children are in the mother’s care.”

    The order also provides:

    “That the parties to have equal shared parental responsibility for the children.”

27. The mother’s evidence is that she admits that H was not returned to school at the commencement of school on that Monday, 13 September, and says that this was because the child was ill, had a high temperature and that she took him to the doctors.  The mother’s evidence is that she sent a text to the father informing him on that morning that H was ill and that she was proposing to drop him off at the paternal grandparents’ home when she picked the other child, M, up from school that afternoon.

28. The mother’s evidence is that she then received a message from the father saying that that wasn’t convenient, and that she should keep the child until the next morning.  She further says that following that the father sent her a message quoting:

    “You may as well hang on to [H]  until he is better.”

29. The father’s evidence was that he did not know whether he had received a text but that the mother may well have sent it.  He has been asked whether he agreed that H could be dropped off that afternoon.  He says he may well have agreed to that, however, strongly resisted any suggestion that he told the mother she could keep H until he was better. 

30. The mother’s evidence described changes to H after 13 September, but in relation to the actual contravention, which deals with 13 September, she gave convincing evidence that she was concerned at the time for H because of a high temperature and that she had taken him to the doctor and had offered to return H to the father that afternoon.

31. Previously I have referred to the provisions of the Act, division 13A dealing with the consequences of failing to comply with the orders and other obligations that affect children. In this particular instance the mother has contravened the order to the extent that she knew she was bound by the order and failed to comply with the order knowing that she was bound by the order that required H to be returned to the father either by returning him to school or if he failed to attend school then to be returned to the grandparents’ care. The fact that he was not attending school that day means that in a strict interpretation of the order H should have been returned to the paternal grandparents’ home at the same time as he would otherwise commence school.

32. It is not a correct interpretation by the mother that because H would normally be at school she did not have to return him to the father until school finished on the Monday.  The matter now, however, requires a consideration of whether the mother had reasonable excuse for contravening the order.  The circumstances that refer to in the definition of reasonable excuse for contravening an order is set out in section 70NAE.  They include, but are not limited to, that a person contravening the order did so on the basis that the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person, including the respondent or the child.

33. I have insufficient information before me today in relation to the actual health of the child (other than he was suffering from a high temperature) for there to be a finding that there were reasonable grounds for the mother to believe that it was necessary to retain H to protect his health.  That is only one of the possible basis of a reasonable excuse.  The decided authorities indicate that, notwithstanding the specific provisions of section 70NAE(4), the Court can find other circumstances which would establish a reasonable excuse.

34. In these circumstances the mother’s evidence concerning the text that she sent the father and the response from the father in relation to the arrangements for 13 September 2010 are sufficient to establish on the balance of probabilities that the mother has had a reasonable excuse to retain H on that occasion; namely that H was ill, that she informed the father that she was taking him to the doctor, and he agreed that she could retain him pending the collection of the child, M, from school that afternoon. I therefore find that the mother had reasonable excuse within the provisions of the Act and propose to dismiss the contravention.

35. I will hear submissions as to what orders I should make in relation to the findings of contravention, but with reasonable excuse at the conclusion of the contravention applications dealing with the other items listed through to 25 October in this particular application by the father.  That therefore deals with the particular item of 13 September 2010. 

36. The next alleged contravention is 20 September 2010 at 9.00 am.  The evidence of the father is set out in paragraph 3 of his affidavit filed on 29 November 2010.

37. The evidence of the father in his affidavit is simply a statement that:

    “On Monday, 20 September 2010, the mother failed to return [H] to the paternal grandparents’ house at 9 am.  [H] didn’t attend school that day and therefore he should have been returned to me at 9 am at the paternal grandparents’ house.”

38. The contravention application refers to paragraphs 1 and paragraphs 4 of the order of 22 October 2008, paragraph 1 of which provided for the children, including H, to live with the father and paragraph 4 setting out the handover arrangements.  The 20 September contravention needs to be seen in the context of the evidence that the father gave initially in cross-examination about being unsure about the contents of an email which he said he may have received from the mother.  When asked to identify exhibit 2 he said that the email looked as though it had been doctored or altered and he did not accept that that was the email which he received.

1. When asked questions by me about his earlier affidavit in the contravention proceedings he had commenced in 2010, paragraph 8 of the affidavit and the first annexure, CTP1 of the affidavit were shown to him.  Both the mother and the father now identify the annexure to the affidavit of the father as the email which the father received on 18 September in relation to H.  That email clearly indicates that the mother is informing the father that she says that H wishes to decide for himself and now wishes to live with her.  It then sets out further information about H being able to return to the care of the father anytime he wishes and arrangements about schooling.

2. I accept that that annexure, CTP1, is the annexure that the mother sent to the father on Saturday, 18 September 2010.  However, such an email itself is not sufficient excuse for non-compliance with Court order.  The Court order in relation to H does not say that the order is subject to the child’s wishes, nor does it say that it is subject to any age for H or the other children. 

3. The mother, therefore, on her own evidence has admitted the contravention of the order of the Court on 20 September 2010 when H was due to be returned to the father’s care in accordance with the Court orders.

4. As far as reasonable excuse is concerned the mother’s evidence is not only in relation to H’s wishes but also relates to what she believed to be H’s concern about his care by the father as a result of information H provided to the police after the mother took H to the police because she says that she was concerned about the father’s reaction to H not being returned to his care. In the context of reasonable excuse I have previously referred to the sections of the Act which specify one of the grounds being the reasonable belief that the child’s health or welfare was at risk, but those conditions are not the sole conditions upon which the Court can find reasonable excuse.

5. In this case, however, the behaviour of the mother needs to be seen in the context of the ongoing proceedings between the parties and the age of the child.  Whilst the mother’s behaviour may be understandable, bearing in mind the age of H, the remarks of H and the history of this matter, I am not satisfied that the evidence the mother has presented is sufficient to establish a reasonable excuse, on the balance or probabilities, for failing to comply with the order which provided that H live with the father.  I therefore find that the contravention has been proven, and that the reasonable excuse has not been proven.  I will deal with the orders that I propose to make as a result of those findings after I have concluded hearing the other contraventions in this application.

6. These circumstances in this contravention and the allegations of the parties are substantially very similar to the events of 20 September 2010, for which I have already given reasons.  The mother admits that H was not returned to the father in the middle of the school holidays, on 2 October 2010, when in accordance with the orders of 28 October 2010 he should have been returned to live with the father.  Her evidence is however, that she alleges she has a reasonable excuse, based upon what the child told her, to retain the child.  In my previous reasons I was satisfied that this did not establish sufficient ground for a reasonable excuse.

7. The evidence on this occasion however, given by the mother (which was not significantly challenged) was that H had also told her that if he was sent back to the father he would “take off”.  She was concerned about his tone and his demeanour and as a result was worried for his safety.  The mother’s evidence goes further on this occasion, namely to assert that if H was returned to the father she had reasonable grounds to believe that he may run away.  One of the reasons she retained H was because of her concern for his safety.

8. The provisions of section 70NAE(4) also relate to the Court finding that the period which the child did not live with the father was not longer than was necessary to protect the child’s health.  I bear in mind the background and history in the matter and the behaviour of the other children brought about to a considerable extent by the ongoing inability of their parents to come to any sensible arrangement or agreement in relation to their welfare.  This forms a basis for the mother to be concerned about H’s behaviour.  Notwithstanding that on the previous occasion I did not find that the mother had established reasonable excuse, her extra evidence in relation to this matter (which deals with what she now says was her concern about H running away and his safety as a result of that) enables me to find that the mother has established the reasonable excuse in accordance with section 70NAE(4).  I therefore find the contravention proved but that the mother had reasonable excuse.

9. In relation to the contravention alleged to have occurred on 11 October 2010 the evidence that is relied on by the parties is paragraph 5 of the affidavit of the father, and the oral evidence of the mother, particularly in relation to the events of 20 September and 2 October 2010.  For the reasons which I have given in relation to the finding I made about the 2 October 2010, it is consistent to find that the mother has breached the order of 22 October 2008 by not returning the child to the father on 11 October 2010, but is also consistent with my earlier findings, and for the same reason I find that the mother had a reasonable excuse to fail to comply with the order on that occasion.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 22 June 2011.

Associate: 

Date:  28 June 2011