Plunkett and Perkins

[2014] FCCA 2460

FEDERAL CIRCUIT COURT OF AUSTRALIA

PLUNKETT & PERKINS [2014] FCCA 2460

Catchwords:
FAMILY LAW – Contravention application – imposition of penalty.

Legislation:

Family Law Act 1975, pt.VII, div.13A, ss.65M, 65N, 65NA, 65P, 70NAC, 70NAD, 70NAE, 70NEA, 70NEB, 70NEC

Applicant: MR PLUNKETT

Respondent: MS PERKINS

File Number: WOC 94 of 2013

Judgment of: Judge Altobelli

Hearing date: 25 September 2014

Date of Last Submission: 25 September 2014

Delivered at: Wollongong

Delivered on: 13 November 2014

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondent: Sward Law

ORDERS

1. Pursuant to section 70NEC of the Family Law Act 1975 (Cth) the Respondent is to enter into a bond for a period of two years, without surety or security, and on the condition that the Respondent comply with all parenting orders and otherwise be of good behaviour.

2. The Applicant’s Application for costs be dismissed.

3. Order 6.5 made 29 November 2013 be varied as follows:

   (a)The words “subject to the father’s work commitments” be vacated and replaced with the words “unless the father indicates to the mother not less than seven days beforehand that he is unavailable”.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 94 of 2013

MR PLUNKETT

Applicant

And

MS PERKINS

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. This case is about two children:  X, born (omitted) 2005, and Y, born (omitted) 2007.  The proceedings are contravention proceedings commenced by their father, with the Mother as Respondent.

2. On 29 November 2013, less than a year ago when measured from the time of the hearing, the parents entered into very detailed Consent Orders with the assistance of three learned Counsel representing the Mother, Father and the children.  The parents agreed that the Mother should have sole parental responsibility, that the children live within a particular geographic area with their mother, and that the children spend time and communicate with their father as detailed in the order in question.  To be precise, the Orders made consist of 16 Orders and four notations.  The Court was asked to adjudicate in relation to two specific but relatively minor issues (Orders 5.2 and 6.5). 

3. The Father filed two Contravention Applications:  one on 25 February 2014 and the second on 20 June 2014.  It is notable that the first Contravention Application was filed less than three months after the Orders were made.  The metaphorical ink had barely dried on the Orders.

4. Despite the fact that the Father alleged at least 20 different contraventions of these Orders, pursuant to a direction of the Court, he was limited to advancing evidence in respect of four alleged contraventions in each of his applications.  These will be particularised below. 

5. By way of further background, it is important to understand that the case that presented before the Court last year when Consent Orders were made, and the case that was presented before the Court in these contraventions proceedings, had a number of key and fundamental attributes.  This is a high conflict case.  The parents had no trust for each other.  What little communication they have is entirely dysfunctional.  Both clearly have limited insight into the needs of their children and struggle to prioritise those needs over their own.  Notwithstanding the Contravention Application, it was not the Father’s case that the Mother was preventing him from spending regular time with the children, and his focus was on other aspects of the Orders they entered into.

The Evidence

1. The Father’s two Contravention Applications were supported by his Affidavits filed 25 February 2014, 29 April 2014, and 20 June 2014.  The Father represented himself in these proceedings.  He is clearly intelligent and articulate and, for the most part, conducted the proceedings with a measure of objectivity.

2. The Respondent Mother relied on one Affidavit, filed 15 May 2014 and was given leave to adduce evidence-in-chief.  She was represented by Ms Brady.  At the commencement of the case, Ms Brady, on behalf of the Mother, sought an adjournment on the basis that particulars had not been provided to the Mother about the specific contraventions to be argued before the Court and, in any event, there had been a delay in the transfer of the grant of aid to Ms Brady’s firm. 

3. The Court declined to grant the adjournment on the basis that an adjournment would be for at least six months, but the Court did stand it down to enable Ms Brady to obtain further instructions, after a rather lengthy process was undertaken of clarifying the particulars of the allegations to be pursued by the Father, and the evidence that he relied on.  In the circumstances of this case where, in effect, Ms Brady was thrown into a full contested contravention hearing, she represented the Mother most capably and everything that could possibly be said on the Mother’s behalf was, in fact, said.

The Applicable Law

1. Contravention proceedings are commenced pursuant to Division 13A of Part VII of the Family Law Act1975 (Cth). But what becomes clear by way of overview of Division 13A is that the Court’s power to enforce compliance with its orders is power to be exercised in tandem with the power to vary the order. The Orders that can be made in a contravention application depend on whether the contravention alleged is not established, the contravention alleged is established but there is a reasonable excuse, or the contravention is alleged with no reasonable excuse.

2. A key concept is that of contravening order.  Section 70NAC emphasises that a contravention occurs when a person bound by an order has intentionally failed to comply with it, or made no reasonable attempt to comply with it. 

3. Section 70NAD specifies that in the context of contravention proceedings, an obligation created by an order in relation to a child, whether specified in the order or not, includes a number of other statutory obligations that are set out in ss.65M, 65N, 65NA, and 65P of the Act.  A common theme of these provisions is that when obligations are created by Orders, those bound by the order are prevented from doing anything that might interfere with the exercise or performance of the powers, duties, rights, responsibilities and benefits conferred on other persons by the order.  These quite expansive provisions mean, in effect, that Orders need to be complied with not just in a technical sense, or having regard to form, but rather by reference to the intention and purpose of the Orders, and what was sought to be achieved in a substantive sense. 

4. Section 70NAE explains what is the meaning of reasonable excuse for contravening an order. What reasonable excuse means depends on the context of the obligation created by the order in question.  A common theme of these provisions is that the respondent to the contravention application believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of the person or the child.  However, a reasonable excuse is also established if the Court is satisfied if the person did not understand the obligation, and the Court believes, in those circumstances, that the respondent ought to be excused in respect of the contravention.

5. The Court’s powers to vary parenting orders are set out in section 70NAD.

The Applicant’s Case

1. The Applicant’s Case was that the Respondent Mother had, without reasonable excuse, contravened the Orders on the following dates:

   1)On 25 December 2013, when the Mother telephoned the children on Christmas Day, allegedly contrary to an order to that effect.

   2)On 18 December 2013, when the Mother sent the children to the Father without adequate clothes, contrary to an order.

   3)On the 17 February 2014, when the Mother allegedly breached an order that required her to take the children to a doctor within seven days.

   4)On the 24 January 2014, that the Mother failed to provide for the children to spend time with their father on his birthday.

   5)On 7 March 2014, that the Mother, contrary to the Orders, rang the Father on his mobile phone.

   6)On 11 April 2014, that the Mother failed to collect the children from school.

   7)On 3 June 2014, that the Mother, contrary to the Orders, failed to inform the Father that Y had broken his toe.

   8)And that on 25 March 2014, and contrary to the Orders, the Mother had left the children unsupervised by a responsible adult.

2. In relation to these eight alleged contravention, the Mother indicated to the Court, through her solicitor, that she conceded contraventions on counts 4, 5 and 6, in each case without reasonable excuse, but that she would lead evidence in mitigation that would establish that no penalty ought to be imposed.  In relation to alleged contraventions 1, 2, 3, 7 and 8, the Mother denied these.

Issues About Credit

1. As will be seen, the evidence of the Mother and Father was starkly different on so many aspects of this case.  It is necessary, therefore, to make some generalised findings about credit. 

2. The Father was cross-examined by Ms Brady.  He was, for the most part, cooperative, courteous and responsive in cross-examination.  His memory was poor at times, particularly in relation to relatively recent events.  There was little significant inconsistency between the evidence he gave in cross-examination, and that contained in his extensive Affidavits. 

3. The Mother was cross-examined by the Father.  The Court acknowledges that this must have been a daunting experience, and allowances are made in that regard, in assessing her evidence.  She too suffered from memory lapses, again surprising given the comparative recency of the events in question.  She too was, for the most part, cooperative and responsive.  What was of concern to the Court, however, was the inconsistency that arose as between not just the evidence she gave about certain events during the course of her cross-examination, but as between the cross-examination and her own Affidavit of 15 May 2014. 

4. Overall, the Court was left with a poor impression of the Mother as a witness and, the inconsistencies in particular, lead the Court to be very cautious about accepting the Mother’s evidence in relation to contentious matters unless corroborated or else otherwise inherently plausible.

Count One

1. Order 7 provides that each parent is at liberty to communicate with the children by telephone each Tuesday and Thursday between 5:00pm and 7:00pm, while the children are in the care of the other and for the purpose of facilitating this Order, the Mother was to ensure that the children have access to a mobile telephone, the battery of which has been charged at those times.  By way of background, whilst the Father did not press these allegations at the final hearing, it was certainly apparent from his evidence that he had a concern about not being able to communicate with the children when they are with their mother. 

2. However, the allegation in question is that on Christmas Day, Wednesday, 25 December 2013, the Mother attempted to ring the children several times, as it turns out without success.  The evidence indicates that the Mother had indeed spoken with the children on Christmas Eve, in accordance with the orders, and was due to speak with them on Boxing Day, again in accordance with the orders.  She said she rang the children on Christmas Day because they had requested they do so on Christmas Eve.  The Father says that, in any event, he did not notice the Mother’s missed calls until the evening of Christmas Day, nor had he seen the Mother’s emails. 

3. There is no question that the Mother had acted intentionally.  There is no question, also, that the history of this matter, and indeed the ample evidence before the Court about the communication between the parents, is that such a communication as occurs is dysfunctional, accusatory in tone, unhelpful and more likely to exacerbate issues than address issues.  Whilst Order 7 does not proscribe the telephone call in the sense of injuncting or restraining it, its purpose is quite clear in the context of this case, that is, that when the children are in the care of one parent, the other parent can only call on the days and times specified. 

4. The Court is satisfied, therefore, that the Mother has contravened Order 7 for the purposes of s.70NAC.  The Court accepts that it was Christmas Day and that it is possible that both the Mother and children may well have desired to speak with each other on this special day. The fact remains that in the context of this case, where communication is so problematic, the Order had a purpose, in a context, and it was agreed to by both parents.  Even on Christmas Day, therefore, the Order was contravened.  It is clearly, however, a less serious contravention, a matter that will need to be taken into account in considering what penalty to impose.

Count Two

1. The Father alleges that on 18 December 2013, the children came into his care for the school holiday period with inappropriate clothing.  He alleges this is contrary to Order 6.5 that requires the Mother to ensure that the children are sent to their father’s care “with such clothes as appropriate for the time they are to spend with him”. 

2. The parents gave contrasting evidence about what clothes the children came to the Father with.  The Court prefers the Father’s evidence in this regard.  The Mother seemed confused, and inconsistent on this topic, and the related issue of what her understanding was of the clothes the children had when they were in their father’s care, quite independently of the clothes she sent over.

3. It is clear from the Orders that the children were going into their father’s care for a period in excess of two weeks.  Accepting the Father’s evidence, as the Court does on this issue, they clearly did not have either the quantity or variety of clothing that was needed for the relevant period.  Experience in this jurisdiction indicates this would have been potentially embarrassing, if not upsetting for the children.

4. The Court finds that the Mother contravened Order 6.5.  There is no suggestion of reasonable excuse. 

5. It is significant that Order 6.5 was one of two orders made by the Court, rather than by consent.  In other words, the parents must have known that this was a sensitive issue between them. Whilst potentially embarrassing and upsetting for the children, it is still a less serious contravention.  What is concerning, however, is the cavalier and indifferent attitude that the Mother appears to have shown about this issue. 

Count Three

1. Order 15 created the obligation on the Mother to do certain things within seven days of the Court Order.  Specifically, she was ordered to cause the children to attend upon a general practitioner to obtain a referral to an appropriately qualified medical specialist, for the purposes as stated in Order 15.  The Father alleges that she failed to do so within seven days.  His evidence, however, is entirely reliant on what he says the children told him.  Quite apart from the fact that the children’s evidence is inherently unreliable given their age, and the context of such a high conflict case, the Court nonetheless prefers the Mother’s quite clear evidence that she did take the children to see a general practitioner within the timeframe, and she did obtain a referral, though not after some difficulty.

2. There is no evidence to support this alleged contravention, and it is dismissed in this regard.

Count Four

1. The Father contends that contrary to Order 5.3, the children were not made available to him on his birthday, 24 January 2014.  Order 5.3 states that “subject to the father’s work commitments”, the children should spend time with him on his birthday from 3:00pm to 6:00pm.  The Mother agrees this did not take place.  She has clearly contravened the order for the purposes of s.70NAC.  Her evidence about this incident was less than impressive.  She sought to explain her inaction by pointing out that the Order was expressed to be subject to the Father’s work commitments, and she said he had not told her whether he was working or not. 

2. Given the highly problematic communication between the parents, to have expected the Father to communicate with her constructively on this issue was, with respect, naïve in the extreme.  In any event, it transpires that she had taken the children to visit the paternal grandfather on the far south coast, thus suggesting little intention to comply with the Order.  Again, there is a real sense of the Mother’s cavalier attitude with complying with these Orders that is of concern.  Nonetheless, she quite correctly conceded the breach.

Count Five

1. Order 11 provides that for the purposes of communication between the parents (as opposed to parents and children) the Mother shall communicate with the Father by email and only email.  The Father contends that the Mother contravened this Order on 7 March when she called him on his mobile phone.  The Father did not answer the call.  The Mother’s evidence is that, whilst it does seem that she did make the call, it was inadvertent.  She explained that she had been experiencing problems with locking her phone, and it is thus possible that she rang the Father – that her phone inadvertently dialled the Father’s number whilst in her handbag.

2. The Mother acknowledged the breach.  It is inconsequential.  The Mother’s explanation is plausible.  The real significance of this alleged contravention is the insight that it gives in relation to the parents. 

Count Six

1. Order 5.4 specifies the time that the Father is to spend with the children during school holidays.  He alleges that on 11 April 2014, the conclusion of term 1 2014, that the Mother failed to collect the children from school on the last Friday of term.  He was called to the school by the principal, explained that it was the Mother’s half of the school holiday period, whereupon the Mother was called and she eventually came to collect the children.  She explained that, while she concedes she breached the Order, she was confused about their meaning and thought that her school holiday time would start on the Monday, and that the weekend in question was the Father’s alternating weekend time.  She acknowledged now that that was her misunderstanding.

2. The Mother acknowledged contravention of the Order.  It is clearly of lesser significance, though embarrassing no doubt for the children, but an understandable error in interpreting the Orders.  The Court is satisfied that the misunderstanding is unlikely to be replicated.

Count 7

1. The Father alleges that the Mother is in breach of the obligations created under Order 1, that gave her sole parental responsibility in relation to the children.  However, Order 1 required the mother to “promptly notify the father of:

   (a)any urgent medical issue affecting the children.

2. The factual circumstances appear to be as follows.  Y suffered a hairline fracture of his toe.  It is not clear whether this took place whilst playing soccer during the weekend that he spent with his father, or at some other time.  The Father says he did not notice Y limping, or in any way injured, whilst he was with him.  The Mother said that she noticed it when he returned from time with his father, that she took Y to a doctor, and subsequently to a hospital to be X-rayed. 

3. Whilst it is clear that the matter was not serious, because the fracture made it difficult for Y to walk, he was off school for a week.  The Father alleges, and the Mother did not deny, that he was not “promptly” notified of Y’s injury.  The difficulty in the Mother’s case is that she conceded in cross-examination that the fractured toe was an “urgent medical issue”.  The Court probably would have had a different interpretation, but that was her evidence.  In the circumstances, the Mother did contravene the Order for the purposes of section 70NAC, but again the litigation about this issue probably tells more about the parents than reflects the urgency or seriousness of the breach.  Nonetheless, the Mother has sole parental responsibility for these children, something the Father agreed to on certain conditions, including that he be promptly notified of certain things.  In the circumstances, it is an obligation the Mother must take seriously.

Count 8

1. The parents agreed that they be restrained by injunction from certain things, including, at Order 14.2, “causing or permitting the children to be unsupervised by a responsible adult”.  The Father contends that on 25 March 2014, the Mother left the children in the care of her son, Dylan, who is not an adult.  The problem with the Father’s case is that he relied entirely on what the children had told him.  For the reasons previously articulated, the Court does not consider what the children have said to be reliable evidence.  In any event, the Court prefers the Mother’s evidence, and that the children are supervised by an adult person whenever she is not there herself.  Accordingly, this count is dismissed.

Summary

1. The Father made eight allegations of contravention; three were conceded, two have been dismissed and three have been established without reasonable excuse.

Consequences of Contraventions

1. There can be no question that the contraventions in question were less serious as defined in s.70NEA(2).  Despite the comments made earlier in these reasons about the Mother’s sometimes cavalier attitude about the Orders, this is not a case coming within s.70NEA(4), where it could be said that the mother behaved “in a way that showed a serious disregard for his or her obligations under the primary order”. 

2. The Court’s powers are set out in section 70NEB (1): 

   (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;

   (da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)--impose a fine not exceeding 10 penalty units on the person;

   (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.

3. On behalf of the Mother, it was submitted that because the contraventions were not serious, no penalty should be imposed. 

4. The Father submitted that the Mother should be required to undertake a Parenting after Separation course and otherwise required to enter into a bond in accordance with s.70NEC to comply with the Orders of the Court and to be of good behaviour. He also sought costs, something that will be discussed below.

5. Whilst it is correct that some of the contraventions found established without reasonable excuse are of lesser significance, nonetheless, the context of this case (as previously articulated) needs to considered, as well as the Mother’s sometimes cavalier attitude about compliance. In all the circumstances, the imposition of a s.70NEC bond for a period of two years, without surety or security, and on condition that the mother comply with the parenting Orders and otherwise be of good behaviour, is an appropriate penalty.

6. The Court sees no point in ordering the Mother to attend a further Parenting after Separation course, given that notation (d) of the orders makes it apparent she has already attended.  If anything, it is the Father who should be attending, if he has not already done so. 

7. The Father also sought costs. The main component of his costs was loss of pay, but he could produce any evidence to quantify his loss. He also claimed parking, petrol, payment of the hearing fee, service fee and a sum for office printing. Apart from the payment of the hearing fee, and service fees, there is no evidence that the Court would accept about these expenses. In any event, the Mother is legally aided, is in receipt of Centrelink benefits, has only recently started a home business, and has the full-time care of the children. In the circumstances, an order for costs could not be justified by reference to the relevant provision of the Family Law Act.

Variation of the Orders?

1. The Father submitted that the Orders should be varied, but the variations he proposed had nothing to do with the alleged contraventions coming before the Court, but rather extraneous matters.  In those circumstances, the Court cannot take them into account.

2. On behalf of the Mother, it was submitted that there was a scope to clarify, and perhaps tighten up the Orders, having regard to the evidence before the Court. 

3. The Court has reviewed the Orders that were the subject of the alleged contraventions.  There is no need to review Order 1. 

4. Order 5.3, which refers to the Father’s work commitments, could be improved.  The Court proposes to delete the words “subject to the father’s work commitments” and replace them with the words “unless the father indicates to the mother not less than seven days beforehand that he is unavailable”.  Thus, there will be a presumption that the children spend time with their father for Order 5.3 purposes, unless he indicates to the contrary.

5. The Court is satisfied that any confusion about when school holidays start and the impact of term time alternating weekends has been resolved, and there is no need to review Order 5.

6. There is no need to review Order 6.5.  Indeed, it is important for these children not to feel that they have to shed the clothes they were wearing when they’ve come from their mother’s psychological space and put on different clothes when they move into their father’s psychological space.  The parents simply have to deal with the responsibilities placed by them, as adults, pursuant to Order 6.5. 

7. The Court will not review Order 7.  It is explicit in its terms.  It is most unfortunate that the lives of these parents need to be micromanaged in this way, through detailed Orders, but there is a clear necessity.

8. There is no need to make any other Order.

I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:       13 November 2014