R and R - [2007] FMCAfam 672

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & R

[2007] FMCAfam 672

FAMILY LAW – Contravention – reasonable excuse – unable to afford cost of travelling to changeover – penalty – variation of orders.

Family Law Act 1975, ss.70NC, 70NE, 70NEC

Applicant:

Respondent:

File Number:

PAM4111 of 2004

Judgment of:

Altobelli FM

Hearing date:

22 June 2007

Date of Last Submission:

22 June 2007

Delivered at:

Sydney

Delivered on:

6 September 2007

REPRESENTATION

Counsel for the Applicant:

Ms Pender

Solicitors for the Applicant:

Women's Legal Services

Respondent:

Self-represented

ORDERS

That all previous parenting orders in relation to J born 15 December 1991, T born 20 December 1994, and S born 26 October 1997 (“the children”) be vacated.
That WR (“the father”) and SR (“the mother”) have equal shared parental responsibility for the children.
That the Children are to live with the father who is to have responsibility for the day to day care, welfare and development of the children whilst they are in his care.
That the mother is to spend time with the child J as agreed between the parents and in consultation with J.
That the mother is to spend time with the children T and S as follows:
(a)During school term, each alternate weekend from 5.30pm Friday until 5.00pm Sunday.
(b)For one half of all New South Wales gazetted public school holidays, being the first half of the holidays which commence in even numbered years and the second half of the holidays which commence in odd numbered years.
(c)In the event that Mother’s Day falls on a weekend that is not a weekend when the children spend time with their mother, then the time is to place on the Mother’s Day weekend in lieu of the weekend immediately following.
(d)At such other times as the parents may agree from time to time.
(e)For the purposes of these orders, school holidays are deemed to commence at 9am on the day after the last day of school term, and conclude at 5pm on the day before the first day of the school term.
The orders for the children to spend time with their mother are to forthwith commence as soon as the parents have been accepted and approved for the use of supervised change-over facilities in accordance with these orders.
That the mother is to have responsibility for the day to day care, welfare and development of the children whilst they are in her care.
On the first weekend after the making of these orders, subject to the terms of this order about the use of supervised change-over facilities, at the commencement of the time, the father will deliver the children to, and the mother will collect the children from the Rainbows Contact Centre at 4-6 H Street, B. At conclusion of the time, the mother will deliver the children to, and the father will collect the children from the Relationships Australia P Children’s Contact Service at 340 H Street, P.
That within 7 days of today’s date the mother and the father are to complete all necessary intake procedures required of them to arrange for the changeovers to occur pursuant to these orders.
That weekend time pursuant to these orders is suspended during all New South Wales gazetted public school holidays and weekend time is to recommence as follows:
(a)When the mother has time with the children for the first half of the holidays, on the first weekend after the school term resumes; and
(b)When the mother has time for the second half of the holidays, on the second weekend after school resumes.
That the parents are restrained from:
(a)Approaching each other or attempting to communicate with each other in any fashion during changeover.
(b)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the children’s presence or hearing.
(c)Discussing any proceedings between the parents in the presence or hearing of the children or permitting any other person to do so.
That each parents is to keep the other informed in writing as to the following matters and is to notify the other parent in writing within 21 days prior to any intended change in the following:
(a)Their own residential address;
(b)The children’s residential address;
(c)The name and address of the children’s schools;
(d)A landline telephone number where the children can be contacted;
(e)The name and address of the children’s treating General Practitioner, any specialist medical practitioner with whom any of the children are consulting or receiving treatment and any counselor who the children or any of them may be attending from time to time.
That in the event that any of the children suffer any illness requiring specialist medical attention or hospitalisation then the parent with whom that child or children is then living or spending time with is to immediately notify the other parent of such illness and the name of the medical practitioner or hospital to which the child or children has been taken.
That the father is to sign all documents and do all acts necessary, including providing to the school the mother’s address, to authorise the school at which the children may from time to time attend:
(a)To furnish to the mother copies of all school reports, notices and advices concerning the children and any activities involving the children;
(b)To make available to the mother order forms for school photographs of the children.
That the father is to use his best endeavours to encourage J to spend time with the mother.
That pursuant to section 65DA(2) 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 are set out in Attachment A and these particulars are included in these orders.
That there is a determination that WR has contravened an Order of the Family Court made 21 September 2005 as varied by an Order of this Court made 15 March 2006, in that the children did not spend time with their Mother on 5 May 2006, 19 May 2006 and 28 July 2006.
That by way of compensatory time the children T and J spend time with the Mother during the week-days of the forthcoming September/October 2007 school holidays when they would otherwise be spending time with their Father, and for one week on the forthcoming December/January school holidays, as agreed between the parties, or failing agreement during the last week that the Children would otherwise be with their Father.
The respondent W is hereby ordered to enter into a bond pursuant to the provisions of s.70NEB(1)(d) and s.70NEC Family Law Act 1975 for a period of twelve (12) months, without surety and without security, to strictly adhere to the obligations in respect of the parenting orders currently operative and be of good behaviour.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

PAM4111 of 2004

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

On 6 December 2006 the applicant wife, SR, filed a contravention application in the Family Court of Australia at Sydney. That contravention application was subsequently transferred to this Court. The reasons for judgment that I provide below relate to the hearing of that application on 22 June 2007.
The respondent in the application is WR, formerly the husband of the applicant.
The applicant and the respondent have three children: J, born 15 December 1991; T, born 20 December 1994; and S, born 26 October 1997. Jarrod is currently 15, T 12, and S 9.

Orders already made

There are two relevant orders relating to the children. One was made on 21 September 2005 by Flohm J in the Family Court of Australia at Parramatta. Then, on 15 March 2006, Her Honour, Housego FM made certain orders varying the original orders, in the context of dismissing a contravention application filed by the wife on 20 January 2006.
It was common ground between the applicant and the respondent that the existence of the two sets of orders relating to the children created some confusion, and I was invited to make one composite set of orders in relation to the children that clarified any doubt and resolved any inconsistencies. I note that even though this is a contravention application there is no doubt about my powers to do so and, accordingly, at the conclusion of these reasons I will make orders that attempt to deal with the issues raised by the parties.

Alleged contraventions

Notwithstanding the large number of alleged contraventions referred to in the application, the applicant's counsel, Ms Pender, indicated to the Court that she intended to rely on the alleged contraventions occurring on 5 May 2006, 19 May 2006, and 28 July 2006.
It is alleged that the respondent husband, who represented himself in these proceedings, on the dates aforesaid contravened without reasonable excuse orders 5(a), 5(b) and 10 of the orders made 21 September 2005, and orders 2 and 3 of the orders made 15 March 2006. For ease of reference I incorporate those relevant provisions into these reasons:
5. That the mother is to have contact with the children T and S as follows:
(a) During school term, each alternate weekend from 6.00pm Friday until 5.00pm Sunday, commencing on Friday 14 October 2005.
(b) For one half of all New South Wales gazetted public school holidays commencing with the December 2005/ January 2006 school holidays, being the first half of holidays which commence in even numbered years and the second half of the holidays which commence in odd numbered years.
10. That weekend contact pursuant to Order 5(a) hereof is suspended during all New South Wales gazetted public school holidays and weekend contact pursuant to Order 5(a) is to recommence as follows:
(a) When the mother has no contact in the school holidays (as in the September/October 2005 school holidays) or has contact for the first half of the holidays, on the first weekend after the school term resumes; and
(b) When the mother has contact for the second half of the holidays, on the second weekend after school resumes.
2. I vary the orders of Flohm J made on 21 September 2005 as follows:
(i) by substituting the words “5.30pm” instead of the words “6pm” in order 5(a) and in accordance with any direction of the Central Coast Access Centre.
3. Unless otherwise defined in these orders school holiday contact shall:
(a) Commence at 5.30pm Sunday;
(b) Conclude at 5.30pm Friday
(c) Be calculated as closely as possible from the day after the last day of school until and including the day immediately before school resumes having regard to paragraphs (a) and (b);
(d) Pupil free days are deemed to be part of school holidays;
(e) Years ending in a zero are defined as years ending in an even number.

Affidavits

The evidence before me consisted of the contravention application filed 6 December 2006, an affidavit of the applicant wife filed 6 December 2006, and a further affidavit of the wife filed 1 May 2007.
The respondent's evidence consisted of his affidavit filed 30 April 2007, and a financial statement also filed on that date (pursuant to a direction that was made to that affect).

Admissions made

At the commencement of the proceedings, as the respondent was representing himself, and after ascertaining that the application was ready to proceed, I explained the procedure that would be followed, formulated the charge, and then asked the respondent to advise whether the charges were admitted or denied. The respondent admitted each of the three allegations, but informed me that in each case he believed there was a reasonable excuse, and that he was acting in the best interests of the children. The respondent did not dispute, therefore, that he had been correctly served with the application and affidavit, that he was aware of the order, and that the order required him to do certain things. He agreed he had not done what was required by the order.

Background

Some background about this matter is useful. The parties separated in 2001 with the children initially living with the father. When the matter came before the Family Court an order was made for them to live with him, subject to orders for contact. The physical circumstances of the parties have changed so that, for example, significant geographical distance now exists between them. It was common ground between both the applicant's counsel and the respondent that both parents have limited financial means. It was agreed that the children have not spent much time with their mother. There was general agreement the current arrangements are simply not working. There is a high level of conflict between the parents. The mother believes that the father is seeking to alienate the children from her, an allegation that the father strenuously denies. The children and the father live in C in New South Wales and the mother resides in the western area of Sydney. The mother feels unsafe when in contact with the father, but the father believes there is absolutely no need for her to believe this way. Changeover has variously taken place at a children's contact service facility, and a police station.
These parents have been litigating about their children since at least 2004. The orders made by Flohm J on 21 September 2005 appear to have been almost immediately contravened. The applicant had filed a prior Contravention Application on 7 November 2005 alleging a breach of orders on 28 October 2005. By the time the applicant filed an Amended Application – Contravention on 20 January 2006, the alleged contraventions had multiplied significantly. That Contravention Application was dismissed by Federal Magistrate Housego on 15 March 2006, and there is no evidence before me as to the reasons for this. Federal Magistrate Housego made a number of orders varying the original orders and clarifying some important details.

Evidence

The evidence of the father was relatively straight forward. He agrees that on 5 May 2006, 19 May 2006, and 28 July 2006, he did not do what he was required to do under the Court orders, and the children did not spend time with their mother in accordance with those orders. The respondent father's evidence to me was that it was lack of money that was the main reason for not being able to comply with the order. He could simply not afford the cost of transporting the children from where he lives at C, to W, which was the agreed changeover point. His evidence was that the trip by car would take either one hour 20 minutes, or one hour 30 minutes each way and that the cost of fuel on a typical weekend when the children spent time with the mother was $70. His evidence was that C was approximately 75 kilometres north of W. This was the way he conducted his case even though his affidavit potentially raised other issues.
In cross-examination it became apparent that the respondent husband was not relying on a defence or explanation based on the children not wanting to go. He insisted that it was the financial difficulty in complying with the order that was the main reason for his non‑compliance. Again, this is how he ran his case, even though his affidavit raised other issues.
The respondent was then carefully cross-examined about his financial circumstances. The applicant had issued various subpoenas. He was cross-examined about inconsistencies that existed between the evidence contained in his affidavit and the bank statements produced on subpoena. For example, on 5 May 2006 his bank balance was $679. On 16 May 2006 the balance was $1124. By way of summary of this evidence, it does appear that, strictly speaking, if one looks at the balances in the respondent's bank accounts on the dates of the alleged contraventions, the balances are always in credit. The submission, however, that therefore the respondent's impecuniosity did not provide a reasonable excuse for the contravention was answered by the respondent on the basis that those balances need to be seen in the overall context of his financial position. According to the respondent, all his income goes into the ANZ bank account in question, and all expenses come out of the said account. At the start of the pay week, for example, there is likely to be a credit balance, but that could just as easily dissipate in the next day or so as living expenses were paid out of the account.
In the husband's financial statement he deposes to earning $623.48 per week from all sources, including Social Security. He deposes to total expenditure each week of $210 per week for rental; $7 per week for insurance premiums; and $598 per week for living expenses for the children and himself. This totals $815 per week. However, a close study of his bank statements indicates that if, indeed, all of his expenses were paid out of that bank account, the expenses could not be as high as he asserts. The bank statements plainly evidence that. There is always a credit balance, even if it is a modest one at times, and this is plainly inconsistent with his assertion of expenditure in the amount he claims. It could be explained, however, if there was other income derived by the husband, not disclosed in his financial statement, and which does not go into the bank account in question. This was the subject of further cross-examination of the respondent. In cross‑examination disclosed his mobile telephone number. He was shown a photo of a car and agreed the car was his. It was put to him that there was an advertisement on the back of the car that clearly indicated his mobile number and which referred to mowing and home maintenance. The respondent agreed that the car was his, that the mobile telephone number was his, but denied that the advertisement was his.
The photo in question was exhibit A3. The photo clearly shows a motor vehicle registered number W which, coincidentally, is precisely the same vehicle referred to at item 40 of the respondent's financial statement. There is no doubt, moreover, that on the back window of the said motor vehicle there is an advertisement for a business which seems to provide handyman services, on which is prominently located the mobile telephone number which the respondent agrees is his number. Exhibit A5 is a copy of the registration renewal notice for the said motor vehicle, clearly indicating ownership by WRof 1 M Street, C, the respondent in these proceedings.
The respondent was shown a photocopy of a business name extract for the business name:
Plus Lawn Mowing and Home Maintenance
which indicates that the person carrying on the business was the respondent. Those records became exhibit A6. The respondent insisted in evidence that he never undertook work pursuant to the business name, that whilst he did take out the business name the business itself was never started, and the business name itself had been cancelled. In fact, the respondent insisted that there had never been a sign on the car, but could not otherwise explain, apart from reference to fraud, how it was that the photograph clearly showed the sign.

Findings about respondent’s evidence

I am not satisfied that the respondent is being truthful in his evidence about his income. His explanations for the photograph of the car, and of the business name lacked credibility. In all likelihood there is other income that is earned by the respondent that is not banked into his ANZ Bank account, and which enables him to meet the difference between what he deposes to be his living expenses in his financial statement, and what his bank statements indicate to be his income. Of course, I am not in a position to quantify precisely what his income is. The husband agreed by consent to file and exchange financial statements by 22 March 2007. The question of his financial circumstances was clearly an issue at that time. I am not satisfied that the financial statement filed by the respondent is a true indication of his financial circumstances.

Contravention established

At the conclusion of the evidence, the submission on behalf of the applicant made by Ms Pender, is that the respondent had failed to establish that he was unable to afford to take the children to the changeover point for the purposes of complying with the orders, and therefore there was no reasonable excuse. I agree that that is the conclusion I reach after hearing the evidence, and then having the opportunity myself to closely scrutinise the documents produced on subpoena and which were tendered in evidence.
I am satisfied that the respondent has contravened an order for the purposes of s.70NC of the Family Law Act in that he has intentionally failed to comply with the order, or made no reasonable attempt to comply with the order.
I am satisfied that there is no reasonable excuse for contravening an order in accordance with s.70NE of the Family Law Act. Specifically, I am satisfied that no grounds exist for the respondent to be excused in respect of the contravention.

Penalty

In this case I consider the nature of the breaches disconcerting. It was patently obvious from the evidence of both the applicant and the respondent that the alleged breaches extended not just to those specifically referred to in the contravention application but to many others subsequent to them. It was also plainly obvious from the evidence of the father that the same reason for not complying with the orders on the three dates selected for the purposes of the contravention application, were the same reasons (or substantially the same reasons) why the other orders were not complied with on other occasions.
Ms Pender for the applicant submitted that, by way of penalty, I should order make up time, and impose a bond under s.70NEC of the Act, and that I should vary the parenting orders to make them more workable for these parties.
I agree that imposing a bond without surety or security to be of good behaviour is an appropriate and proportionate penalty to impose for the breaches of these orders. It reflects not just the seriousness of depriving the children of the opportunity for a meaningful relationship with their mother, but it is also proportionate having regard to the adverse finding of credit I have made against the respondent. He attempted to excuse the contraventions by way of an explanation that I have found, after hearing and studying all the evidence, to be completely spurious and untruthful.

Variation of orders

The task, however, of amending the orders is a particularly difficult one. They clearly do not work. There remains a high level of conflict between the parents over six years after separation. For two thirds of the life of S, the youngest child, his parents have been in conflict. The oldest child, J, was thirteen years old, nearly fourteen, when Flohm J ordered that contact with his mother was to be as agreed between the parents. I infer from this that it would have been highly problematic to do otherwise. T is now twelve but will turn thirteen in December, and already the respondent asserts that T has indicated that he does not want to spend time with his mother, apparently because of conflict with her boyfriend or partner. One must wonder about the efficacy of any order insofar as it applies to T. The other obvious complication is the geographical distance that separates the parents, and the mother’s limited means. Whilst the father has not made out his explanation for the contraventions based on inability to afford the cost of facilitating it, and whilst I am satisfied that his financial situation is such that he can afford the aforesaid cost, by no means am I satisfied that he does not also experience financial difficulties. In the absence of further evidence from the parties, I should not depart significantly from the framework contained in the orders of Flohm J.
In relation to make up time, I do not regard it as reasonably practicable in the circumstances of this case to increase the frequency of weekend time – indeed I regard that as highly problematic. Make up time will, therefore, be ordered during the respondents half of the forthcoming September/October school holidays, but will be limited to weekdays so that the children get to spend some time with their father as well as their mother during this period. Furthermore, in the forthcoming December/January school holidays, the children will also spend an additional full week with their mother during the time that the father would otherwise have them.
In terms of varying the orders there are many practical as well as conflictual issues to overcome. The current alternating weekend contact regime is not working, and is unworkable now having regard to geographical constraints. My sense is that there is a greater chance of the children spending meaningful time with the mother if I were to decrease the frequency of weekend time to one weekend in three. Having regard to the age of the children I am satisfied that they would cope. Indeed, if these changes worked, they may well be likely to see their mother more often than they currently do under the current orders. I re-listed the matter for mention and informed the parties that I was contemplating the variation to which I have just referred. The respondent father had no objection. The Applicant mother strongly opposed the proposal. I will not make the variation in the face of the mother’s opposition. I do not consider myself to have evidence to make the Order against her wishes. Despite what I consider to be the formidable obstacles to making the current parenting arrangement work, and the reasons I have articulated for a change to the orders, it is not appropriate that I force these changes on the mother as a result of contravention proceedings.
The other impracticability about the orders arises from geographical considerations. Both parents suffer from the same problems about travel time and cost, but I am satisfied that it is best for the children that they share this burden equally. If I impose this responsibility on the Father alone, I have no confidence that the orders will be complied with.
Yet another important consideration is that the mother fears for her safety whilst in the presence of the father and so, if possible, changeover must be devised in a way that avoids contact between them. The orders of Flohm J specified the Central Coast Access Centre at W. That facility has now closed down. By consent, the parties agreed on 9 February 2007 that the Rainbow Room Contact Centre at B be used for changeover. That facility was unavailable for several months. At the hearing the mother proposed that pending further order changeover occur at WT Police Station. The father insists that the children do not like the police station and he has suggested McDonalds. The mother does not feel safe at McDonalds. The father, however, thought that when the B facility was open, the arrangements worked. I am sure it did from his perspective given the geographical proximity for him. The order I am asked to make by the mother is that, in effect, the commencement changeover point is the WT Police Station, and the conclusion changeover point is the P Supervised Contact Centre. As the B facility is now once again available, or will very shortly become so, I propose to commence time at that place. This order has the benefit of sharing travel, and is reasonably practicable as well from the children’s perspective. It is the most sensible, child-focused proposal under the circumstances.
The problems which underlie the Contravention Application are very complex. There are clear areas of dysfunction within this family unit.

I record the view that I would have reduced the frequency of the mother’s time with the children. Whilst reducing the frequency of time between the children and their mother may seem an unorthodox way of dealing with the problem, I was satisfied that from the children’s perspective it actually presents the best chance for them to spend regular and consistent time with their mother. No doubt both the father and the mother were at least tempted to think of these changes as being either a victory or defeat for one of them. That sort of thinking must stop. The children need both their mother and their father, and they need the freedom to be able to receive love from each parent and to give love to each parent unhindered by the parents’ ill-feelings towards each other. In any event the mother declined to accede to my proposal, and I was not prepared to impose it on her.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate: Lisa Molloy

Date: 6 September 2007