RAMSAY & RAMSAY

[2018] FamCA 686

FAMILY COURT OF AUSTRALIA

RAMSAY & RAMSAY [2018] FamCA 686

FAMILY LAW – ORDERS – Contravention of orders affecting children – Where interim parenting orders were made for the children to live with the mother and spend time with the father – Where the father was ordered not to contact the children for a period of three months – Where the children left the mother’s care contrary to an order of the Court and were retained by the father – Where the father asserts his failure to comply with the orders was necessary to protect the children’s health and safety – Where the Court found the father contravened orders without reasonable excuse on nine occasions –Where the Court found the contravention of orders should be dealt with under Subdivision F (more serious contraventions) – Sanctions imposed – Father ordered to enter into concurrent good behaviour bonds with a maximum duration of 12 months.

FAMILY LAW – CHILDREN – Best Interests – Recovery order – Where the mother makes an oral application for a recovery order – Recovery order not issued – Concluded the children should be voluntarily returned to the mother by the father, as required by his compliance with orders under the good behaviour bonds.

Family Law Act 1975 (Cth), s 67V, s 70NAE(4), s 70NAF, s 70NDA(c), s 70NFA(3)
Family Law Rules 2004 (Cth), rule 21.08

APPLICANT: Ms Ramsay

RESPONDENT: Mr Ramsay

FILE NUMBER: NCC 390 of 2018

DATE DELIVERED: 19 July 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 19 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Davies

SOLICITOR FOR THE APPLICANT: Boyd Olsen Lawyers

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: Not applicable

Orders

(1)For the seven proven contraventions of the Orders made on 28 March 2018 and 24 April 2018 (being Counts 1 to 7 inclusive in the Application-Contravention filed on 25 June 2018), pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent father shall forthwith enter into six concurrent Good Behaviour Bonds upon the following conditions:

a.The bonds shall be without surety and without security;

b.The father must be of good behavior for the duration of the bonds, which shall include compliance with all existing parenting orders; and

c.The bonds shall be for periods of six months commencing on the date the father enters into the bonds.

(2)For the two proven contraventions of the Orders made on 28 March 2018 (being Counts 8 and 9 in the Application-Contravention filed on 25 June 2018), pursuant to Subdivision F of Division 13A of Part VII of the Family Law Act, the respondent father shall forthwith enter into two concurrent Good Behaviour Bonds upon the following conditions:

a.The bonds shall be without surety and without security;

b.The father must be of good behavior for the duration of the bonds, which shall include compliance with all existing parenting orders; and

c.The bonds shall be for periods of twelve months commencing on the date the father enters into the bonds.

(3)Otherwise, the Application-Contravention filed on 25 June 2018 is dismissed with no order as to costs.

(4)The mother’s oral application for a Recovery Order is dismissed.

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 Ramsay & Ramsay 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 NEWCASTLE

FILE NUMBER: NCC 390 of 2018

Ms Ramsay

Applicant

And

Mr Ramsay

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1.These proceedings concern two children, now aged 13 and 11 years.  The present dispute before the Court involves the mother’s contravention application, filed on 25 June 2018, but some background is required to contextualise it. 

2.The parties separated in 2017 and the parenting proceedings between them were commenced by the mother in February 2018. Her application for interim parenting orders was adjourned for hearing until 28 March 2018 because the father was not ready on the first return date. 

3.On 28 March 2018, I determined the interim parenting dispute between the parties. Orders were made for the mother to have sole parental responsibility for the children, for the children to live with her, and for the children to spend time with the father for six hours each Saturday. 

4.Either from that date, or on some other date within the following month, the father retained the children in his care when the orders required them to be in the mother’s care.  Consequently, on 24 April 2018, Cleary J made a recovery order on the mother’s application. According to the evidence given today, the recovery order was executed on 25 April 2018 and the children were returned to the mother’s care. 

5.Importantly, on that occasion, Cleary J also made orders in the following terms:

4.Order 3 of the orders made on 28 March 2018 in the Family Court of Australia be suspended for a period of three months from the date of these orders.

5.The respondent father be restrained by injunction from coming into any contact with the children for a period of three months from the date of these orders.

6.The effect of those orders was to preclude any contact at all between the children and the father for three months – until 24 July 2018. 

7.The mother’s Application-Contravention avers the father’s breach of the orders, made in March 2018 and April 2018, on nine separate occasions between May and June 2018. Each of those breaches, without reasonable excuse, was proven for the following reasons.

The Evidence

8.In support of her contravention application, the mother relied upon her affidavit filed on 25 June 2018.

9.During the hearing, the father began to cross-examine the mother but, following interjection and discussion about the nature of his defence to the mother’s application, he decided to desist from further cross-examination. As a consequence, none of the mother’s evidence was usefully challenged.

10.The father then gave oral evidence in his defence and was cross-examined by the mother’s counsel. Save in respect of one count, which the father conceded, it was apparent he asserted he had reasonable grounds to breach the orders on each of the eight other occasions.

The Law

11.The procedure for the conduct of contravention applications is described by the Family Law Rules 2004 (Cth) (rule 21.08), which procedure was followed.

12.The Family Law Act 1975 (Cth) (“the Act”) prescribes, firstly, that the mother bears the burden of proving the father’s contravention of the orders on each of the occasions alleged, and then secondly, the onus falls upon the father to establish the existence of his asserted reasonable excuse (s 70NDA(c)). It is incumbent upon the father to prove such reasonable excuse on the balance of probabilities (s 70NAF).

13.According to the father’s submissions, the entirety of his defence hinged upon his ability to prove reasonable excuse, which, for the particular circumstances of this case, is defined within s 70NAE(4) of the Act.

14.Section 70NAE(4) provides as follows:

(4)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 live with in a way that resulted in the child not living with a person in whose favour the order was made if:

(a)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);  and

(b)the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

15.Relevantly, it was therefore necessary for the father to prove he believed, on reasonable grounds, that breaching the orders was necessary to protect the health or safety of the children.

Count 3

16.The father conceded the breach and conceded he could not establish any reasonable excuse for it.

17.On that occasion, he denigrated the mother to the children, in breach of Order 5 made on 29 March 2018. He told the oldest child the mother was “trying to get him sent to jail” and that she “lies a lot”.

Counts 1, 2, 4, 5, 6 and 7

18.Each of these counts averred the father contacted one or both children, either telephonically or by text message, in breach of the injunctions made by Cleary J on 24 April 2018. 

19.The father admitted he did so, but contended he did so on reasonable grounds to protect the health and safety of the children. The evidentiary basis for the father’s defence was, broadly speaking, his belief that the children’s emotional needs were not being met in the mother’s care.

20.His belief, save in one respect, was based entirely on two things: first, statements made to him by the children; and second, supposition from his previous experiences with the mother. The single exception was him witnessing a third party (an apparent friend of the mother) denigrate him in the presence of the two children. Suffice to say, the independent acts of other adults cannot be attributed to the mother and she bears no responsibility for them.

21.As to the reports made by the children to the father about the mother, there is no way to test their reliability. Given the parties are highly uncooperative and have grossly different views about what orders will serve their children’s best interests, it would be unsurprising if the children’s reports to the father do not always coincide with objective facts. The children are probably alive to the father’s willingness to receive from them adverse and critical reports about the mother, particularly since he is willing to share with them his adverse views and critical comments about her.

22.What is clear is that on the six occasions he made contact with the children in breach of the orders, such contact was not reasonably necessary to protect their health or safety. He merely engaged in oral or written conversation unrelated to their health or safety. While the father thinks he may have given them an “outlet” and made them feel better, it was not objectively necessary for their physical or psychological health or safety that he do so. 

23.As a consequence, Counts 1, 2, 4, 5, 6 and 7 are proven.

Counts 8 and 9

24.On the evening of 31 May 2018, after an argument with the mother, the eldest child decamped her household bound for the father’s home, on foot. The eldest child called the father and he went to collect him. I am satisfied the father was motivated to do so to ensure the child’s safety. It was objectively reasonable to do so because there was clear danger in an adolescent being out at night alone, walking along public roads. However, once the father collected him and the danger passed, he kept him. He did not deliver the child to the mother, to some other relative, or to the police. Even now, some seven weeks later, the eldest child is still living with the father. 

25.The father failed to prove that his conduct to protect the child only endured for the period necessary to avert the danger to the child’s health or safety. So much was admitted by the father. He said he offered to the mother, that the child should resume living between them in some form of shared care arrangement, which she rejected. She obviously wants the existing orders restored. Regardless, the father’s willingness to return the eldest child to her (on terms) reveals he is no longer reasonably concerned about the eldest child’s health and safety in her care.

26.Much the same circumstances apply to the way in which the youngest child went with the father on 1 June 2018. He left the mother’s home and the father collected him. The same danger confronted the youngest child, which the father reasonably averted. But, like the eldest child, the youngest child has lived with the father ever since, even though the danger has long passed. 

27.In respect of Counts 8 and 9, the father initially acted reasonably to protect the children’s safety, but he breached the orders for long after their safety was satisfactorily ensured. His breach of those orders continues even now. 

28.Consequently, Counts 8 and 9 are proven.

Sanction

29.The mother contended that Sub-division F of Division 13A of Part VII of the Act should apply in the current circumstances, because the father’s contraventions manifested his serious disregard for his obligations under the parenting orders (s 70NFA(3)). The father did not demur and I agree.

30.Although the father said he did not understand the import of the orders, I do not believe him. He is an intelligent man and the orders were quite clear and unambiguous.

31.The father’s financial circumstances are quite poor, which the mother accepted to be true, so fines are an inapposite remedy. 

32.The father said community service orders were inapt because he needs to work to maintain his rental accommodation and to help maintain the children. I accept that submission too.

33.The mother submitted the father should be the subject of concurrent good behaviour bonds, to which submission the father eventually agreed. The mother submitted the bonds should all be of 12 months duration, but the father submitted for bonds of six months duration.

34.The imposition of bonds is, I agree, appropriate. No other sanction, including imprisonment, is more suited to the current circumstances. However, the nine breaches were of different character and seriousness. The breaches by his communication and denigration of the mother were not as serious as his continued retention of the children.

35.The bonds imposed for Counts 1 to 7 inclusive will be of six months duration and served concurrently, consistently with the father’s submission. However, the bonds imposed for Counts 8 and 9 will be of 12 months duration and served concurrently both with one another and with the bonds imposed for counts 1 to 7, consistently with the mother’s submission.

Recovery Order

36.The mother made an oral application for a recovery order, making provision for the children to be taken from the father, forcibly if necessary, and returned to her. The children have lived with the father since 31 May and 1 June 2018 respectively, even though the father was supposed to have had no contact at all with them until 24 July 2018. 

37.Following the eldest child absconding from the mother on 31 May 2018, he and the mother have been engaged in apprehended violence proceedings before the Local Court of New South Wales, which are now complete. Inferentially at least, the relationship between the eldest child and the mother will be at a relatively low ebb.

38.The children’s best interests are the paramount consideration in the determination of whether a recovery order should be made (s 67V), so it is a discretionary process. Given that at least the eldest child resisted his return to the mother, it is likely he will react badly to his enforced removal from the father and his return to the mother. In all probability, he will abscond again in the knowledge the father will give him refuge. Accordingly, in the exercise of discretion, I will not make a recovery order in respect of the eldest child. Nor will I make a recovery order in respect of the youngest child. It would not be in his best interests to be separated from his brother in the midst of this acrimonious dispute between the parties. 

39.However, the mother need not think the Court is unprepared to enforce its own orders in the face of one party’s belligerence. The father is now, or shortly will be, the subject of nine good behaviour bonds. He is in continuing breach of the orders made in March and April 2018. Unless he immediately rectifies the breach by voluntarily returning the children to the mother forthwith, he will also be in breach of his good behaviour bonds. In that event, should the mother apply to the Court and prove his contravention of the orders and the bonds, there will be little option left, under Part VII Division 13A of the Act, but to impose imprisonment. Then there really will be little option but for the children to return to live with the mother. Hopefully the father will see sense and realise it need not come to that. The children’s interests will be much better served if he returns them to the mother willingly, reassuring them about the advisability of that course, rather than allowing them to be physically restrained by police and delivered to the mother.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 19 July 2018

Associate:

Date:  6 September 2018