Ramsay & Wade (No.2)

[2014] FCCA 1989

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAMSAY & WADE (No.2) [2014] FCCA 1989

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – reasonable excuse – reasonable excuse for contravening an order – where contraventions established – whether respondent has established a reasonable excuse – where reasonable excuse established in respect of two counts only.

Legislation:

Family Law Act 1975 (Cth), s.70NAE

Cases cited:
Ramsay & Wade [2014] FCCA 1431

Applicant: MR RAMSAY

Respondent: MS WADE

File Number: SYC 5648 of 2012

Judgment of: Judge Scarlett

Hearing dates: 20 - 22 August 2014

Date of Last Submission: 22 August 2014

Delivered at: Sydney

Delivered on: 26 August 2014

REPRESENTATION

Solicitor for the Applicant: Mr Reeve

Solicitors for the Applicant: Marsdens Law Group

Counsel for the Respondent: Ms Murphy (direct brief)

ORDERS

1. The Respondent Mother has established a reasonable excuse for contravening on 20 February 2014 Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013.

2. The Respondent Mother has established a reasonable excuse for contravening on 23 February 2014 Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013.

3. The Respondent Mother did on 27 February 2013 without reasonable excuse contravene Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.

4. The Respondent Mother did on 2 March 2014 without reasonable excuse contravene Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.

5. The Respondent Mother did on 6 March 2014 without reasonable excuse contravene Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.

6. The Respondent Mother did on 9 March 2014 without reasonable excuse contravene Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013 by refusing to allow the Applicant father to spend time with the children [X] and [Y] in accordance with the Orders.

7. The Respondent Mother did on 13 March 2014 without reasonable excuse contravene Order 6(a) made on 19 December 2012 as amended by Order 2 made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.

8. The Respondent Mother did on 16 March 2014 without reasonable excuse contravene Order 6(b) made on 19 December 2012 as amended by Order 4(b) made on 7 February 2013 by refusing to allow the Applicant Father to spend time with the children [X] and [Y] in accordance with the Orders.

IT IS NOTED that publication of this judgment under the pseudonym Ramsay & Wade (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5648 of 2012

MR RAMSAY

Applicant

And

MS WADE

Respondent

REASONS FOR JUDGMENT

Application

1. In this matter, the Court heard an Application by the Father against the Mother in respect of contravention of orders that had been made on 19 December 2012 and amended by consent on 7 February 2013. There were eight allegations, and on the previous occasion I found a prima facie case had been made out in respect of each of the eight. I handed down a decision in which I set out what would need to be to be done if the Respondent wished to rely on a reasonable excuse for the contraventions[1].

   [1] Ramsay & Wade [2014] FCCA 1431

2. It is, of course, well established by the law that the onus of establishing a reasonable excuse is on the Respondent. The Family Law Act 1975 (Cth) sets out at what is described as the meaning of “reasonable excuse” for contravening an order, and in the various subsections sets out what may be a reasonable excuse. It is not an exhaustive list.

3. In the proceedings last week, heard on 20 and 22 August, when the Respondent Mother was represented by Ms Murphy of Counsel, she relied on her own affidavit evidence and affidavit evidence of her mother and brother.  There was also a video disc taken from a closed circuit TV camera at the McDonald’s Family Restaurant at [omitted], which was the changeover location. This evidence was shown on Friday 22 August. The parties, and eventually the Court, were able to view that vision relating to a changeover on 16 February 2014.

4. It was certainly not a complete view of the entire circumstances that were alleged by the Respondent and, in fact, certain things were obscured and certain matters took place “off-stage”, as it were. Nevertheless, the Court was able to see the handover of the two children and observe the circumstances.

5. In her affidavit of 1 August 2014, the Respondent referred to incidents at changeover on 26 January and 16 February 2014 which led to her and her brother making complaints to the Police. The affidavit of the Respondent’s brother, Mr W, of 17 July 2014, refers to those matters, as does the affidavit of her mother, Ms P, of 18 July 2014.

6. The Applicant gave evidence on 21 August.

7. There were proceedings by the Police relating to those incidents, including the making of an Interim Apprehended Violence Order and several charges. All of those proceedings were heard by the Local Court at [omitted] and were dismissed on 31 July 2014. Nevertheless, it is clear that there have been some unfortunate circumstances at changeover.

8. It is not entirely possible to arrive at a definitive conclusion as to the circumstances, especially as the evidence of the Respondent’s brother and the Applicant and their other witnesses are so much at variance. It is fair to say, however, that the changeover arrangements were far from satisfactory.        

Meaning of Reasonable Excuse for Contravening an Order

1. Section 70NAE of the Family Law Act 1975 provides a guide to the meaning of the phrase “reasonable excuse for contravening” an order. Subsections 70NAE (1) and 70NAE (5) are relevant to this matter and are reproduced in full:

   70NAE(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

   70NAE(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided by the order if:

   (a)     the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)     the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

2. There are, as it can be seen, two legs in subsection (5), both of which must be met. Of course, it was submitted on behalf of the Respondent that that was the case, whereas Mr Reeve, who appeared for the Applicant, submitted that:

   a)first, it could not be shown that the Respondent had a belief on reasonable grounds or;

   b)even if she did in respect of the first contravention, she had not met the requirements of paragraph (b) in respect of the other seven counts, being the period during which, because of the contravention, the child and the person had not spent time together as being not longer than was necessary.

Conclusion

1. I have considered all of those matters. It certainly appears that the Respondent held a belief relating to her health or safety and that of the children. The incident of 16 February certainly formed a part of that belief, although it does not appear that the Respondent herself was present at changeover on that date.

2. I am not of the view, having looked at the vision from the closed circuit TV camera, that it could fairly be said that there was a threat to the health or safety of the children on that occasion. Indeed, as Counsel for the Independent Children’s Lawyer pointed out in a later submission, the alacrity with which the elder child ran up to his father and put his arms around him indicated a very strong bond between the child and his father.

3. What the Court has to do is consider whether there was a belief, on reasonable grounds, and, in particular, whether the withholding of the children from spending time with the Father was not longer than was necessary to protect the health or safety of the parties concerned. I am of the view, and this may be a generous view with respect to the Respondent, that in respect of the first two counts, relating to 20 and 23 February, the Respondent has established a reasonable excuse.

4. What is of great concern is that Count 3 through to Count 8, dating from 27 February to 16 March, have shown that the children were constantly withheld from spending time with the Father and, indeed, at the time of the hearing last week, had still not spent time with the Father, which is actually past the time set out in the contraventions. In my view the circumstances do not justify a finding that the children not spending time with their father was for not longer than was necessary in respect of the counts for 27 February up to 16 March.

5. I find that a reasonable excuse has not been established and I make orders accordingly.    

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  1 September 2014