Randal & Karparti & Anor

[2019] FamCA 176

FAMILY COURT OF AUSTRALIA

RANDAL & KARPARTI AND ANOR [2019] FamCA 176

FAMILY LAW – PRACTICE AND PROCEDURE – Application – Dismissal – Where parenting orders were made by consent between the mother and the father – Where the father has brought a Contravention Application against the mother in respect of alleged contraventions of the orders – Where the mother made an oral application to have certain counts in the father’s Contravention Application summarily dismissed – Where the mother has a case to answer – Application for summary dismissal dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Randal

FIRST RESPONDENT: Ms Karparti

SECOND RESPONDENT: Mr Eckford

INDEPENDENT CHILDREN’S LAWYER: Hazrabee Mustaffa

FILE NUMBER: BRC 7013 of 2017

DATE DELIVERED: 16 January 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 16 January 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Kirkman-Scroope

SOLICITOR FOR THE APPLICANT: Butler McDermott Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Ms Harris

SOLICITOR FOR THE FIRST RESPONDENT: Neilson Stanton & Parkinson

THE SECOND RESPONDENT: No Appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Mustaffa
HM Lawyers

Orders

1. That the respondent mother’s oral application for summary dismissal of Counts 1, 2, 3, 4 and 6 of the father’s Contravention Application filed 11 October 2018, be 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 Randal & Karpati and Anor 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 BRISBANE

FILE NUMBER: BRC 7013 of 2017

Mr Randal

Applicant

And

Ms Karparti

First Respondent

And

Mr Eckford

Second Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Division 13A of Part VII of the Family Law Act 1975 (Cth) is the division which sets out all of the statutory provisions that provide for proceedings to be brought in this Court to be heard and determined where it is alleged by a party to a parenting order that the other party to the parenting order has contravened the order. That division also sets out the powers available to the Court in the event that the Court determines that the allegations are proven.

2. Section 70NAC, which is one of the first sections in Division 13A, is headed “Meaning of contravened 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 or abetted a contravention of the order by a person who is bound by it.

3. A person can be found, pursuant to s 70NAE of Division 13A, to have a reasonable excuse for contravening an order under the Act affecting children. Section 70NAE sets out a number of circumstances in which a person might be found to have a reasonable excuse for contravening an order. Section 70NAE(1) makes it clear that the circumstances in which a person may be taken to have had a reasonable excuse for contravening order are not limited to the circumstances that are set out therein.

4. Relevantly in this case perhaps, one of the exceptions is that the person alleged to have contravened did not understand the obligations imposed by the order upon them. Another one is where a contravention, such as the ones alleged in this case, prevents children spending time with a parent and that circumstance of reasonable excuse is where the parent who has contravened 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 child, and 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).

5. The primary order concerned was made by his Honour Judge Middleton of the Federal Circuit Court on 10 August 2018. It says at the commencement of the order that it was made that day upon application to the Court by “Ms Donnelly, Solicitor appearing on behalf of the Applicant”. That seems to be a mistake as the mother is the applicant and the father is the first respondent. In the order, it says “Ms Harris of Counsel appearing on behalf of the First Respondent”. That cannot be right because Ms Harris of Counsel could not have appeared for the father on that day and now for the mother on this day, so it must be that Ms Donnelly was the solicitor appearing for the father and Ms Harris was appearing for the mother. There was no appearance on behalf of the second respondent or by him. I do not believe that the Independent Children’s Lawyer had been appointed at that stage; I think that came about later.

6. The orders were made by Judge Middleton on 10 August 2018 when Ms Donnelly for the father and Ms Harris for the mother asked him to make the orders, presenting to him, no doubt, minutes of consent that they asked him to confirm in the form of orders. 

7. Relevantly, paragraph 2 provided that the children, X and Y, spend time with the father starting on 12 August 2018 and listed the times:

   a.        3:45pm to 5:15pm each Tuesday

   b.        3:45pm to 5:15pm each Thursday

   c.In week one from 1:45pm to 3:45pm on Sunday on a supervised basis at the D Contact Centre, Town F or such other 2 hour block of time as stipulated by the D Contact Centre, Town F and each alternate week thereafter. In week two from 9:00am to 1:00pm on Saturday supervised by Ms J at Suburb H and in each alternate week thereafter.

8. Paragraph 3 provided that the baby, Z, spend time with the father commencing 12 August 2018:

   a.        3:45pm to 4:15pm each Tuesday

   b.        3:45pm to 4:15pm each Thursday

   c.In week one from 1:45pm to 2:45pm on a supervised basis at the D Contact Centre Town F or such other 1 hour block of time as stipulated by the D Contact Centre, Town F and in week two from 9:00am to 10:00am supervised by Ms J and in each alternate week thereafter.

9. The orders also provided that the father’s time with the children on Thursday or Saturday was to occur at Suburb H with changeover to occur at the car park adjacent to the Suburb H Aquatic Centre. 

10. Paragraph 10 provided:

    That the Applicant’s time with the children on Tuesday shall occur at Park L in Town G.

11. Paragraph 12 provided:

    That in the event that the supervisor Ms J not be available to supervise the Applicant’s time then the maternal grandmother or such other person as agreed between the parties supervise the visit.

12. In any event, the father has filed a Contravention Application in which he makes allegations that I can describe as counts of alleged individual incidences of contravention, of which there are around 20. They all commenced from the first contact date after that consent order was made on 10 August 2018.

13. The first one essentially alleges that a contravention happened on 12 August 2018 when the three children, X, Y and Z, were all presented to spend time with the father, with the supervision of staff, at the D Contact Centre, where X, after a few minutes, was returned to the mother. The father alleges that in breach of the obligation imposed upon her by the order, the mother neglected or refused to encourage the child to remain for the visit and she facilitated her removal from the visit without reasonable excuse.

14. The next count, best described as count number 6, is one in which it is alleged that on 26 August 2018, X was not presented to the father at all at the D Contact Centre. 

15. Counts 2, 3 and 4 are slightly different but similar to each other in that they relate to contact visits that were meant to take place at a park.

16. The father alleges that on 14 August 2018, the children, Y and Z, were presented to him at the park, but X was not effectively presented to him. He asserts that the mother neglected or refused to encourage the child to remain for the visit and facilitated her removal from the visit without reasonable excuse.

17. On 16 August 2018, the father alleges the contravention occurred in circumstances where the children were presented but were removed and returned to their mother after 15 minutes where the supervisor, Ms J, informed him that the contact would not continue if the members of his family remained present. 

18. On 18 August 2018, the father alleges that the children were not presented to him at all, the circumstances being the supervisor, Ms J, told him again he not would be able to spend time with his children if his family were around and did not leave.

19. I will not go through the other alleged contraventions at the moment.

20. After the father was cross-examined on his evidence, and indeed his mother was cross-examined on her affidavit, counsel for the mother, Ms Harris, made an application on behalf of her client that counts 1, 2, 3, 4 and 6 that I have just been through be summarily dismissed. 

21. Ms Harris, with respect, took me to a decision that is not an authoritative decision, of a single Judge of this Court; namely, Justice Berman. Though I have a great deal of respect for Justice Berman’s legal capacity and even where he has relied upon the well-known and respected former Justice Nygh, who has a very fine reputation for his legal capacities, no decision of a single judge of this Court is binding on another judge of the Court. Nevertheless, I do not disagree with the points of law that are established there and nor does Ms Kirkman-Scroope. 

22. That having been said, a recent amendment to the Act takes the matter beyond question in any event. Section 45A of the Act now provides as follows:

    (2)The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:

    (a)the first party is defending the proceedings or that part of the proceedings; and

    (b)the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.

    (3)For the purposes of this section, a defence or proceedings or part of proceedings need not be:

    (a)       hopeless; or

    (b)      bound to fail;

    to have no reasonable prospect of success.

23. There seems to be a typographical error in paragraph (3). It should read “a defence of proceedings or part of proceedings”. Paragraph (3) does not really apply in this case and it is not the defence we are talking about; it is the actual prosecution of the contraventions.

24. Ms Harris, on behalf of the mother, says that I should summarily dismiss those five counts that I have referred to because she says I would be satisfied that they would have no reasonable prospect of success and I should be satisfied as per the words of s 45A(2)(b) that the father has no reasonable prospect of successfully prosecuting those parts of the proceedings.

25. With respect to Ms Harris, and this may be obvious now after the discussion that took place between Ms Harris and myself during the oral submissions she was making, I do not agree. I am not satisfied at this point that the father’s case in respect of those counts has no reasonable prospect of success. That is not to say that I consider that they will succeed, but that is not the point. I have to consider whether there is no reasonable prospect of them succeeding. 

26. The obligation, as authorities tell us, placed on the parent who is the residential parent of children, who is bound by orders to ensure that the children spend time with the other parent, to comply with that order and to make sure it happens, is a significant one. Contravention of the order comes about when, as I said earlier, without reasonable excuse a person either intentionally failed to comply or made no reasonable attempt to comply with the order. 

27. The father has established, in my respectful view, on a prima facie basis, that on those occasions he did not get to spend time with the children. Now there are a whole lot of questions around factual circumstances pertaining to that, but the evidence currently before the Court does not persuade me that it would not be reasonably possible to ultimately, depending on the evidence that the mother leads, conclude that she made a reasonable attempt to comply with her obligations to provide contact under the orders. 

28. I do not accept the submission that no reasonable prospect of proving that arises in circumstances where at a supervised contact centre, a supervisor simply decides to return a child from the supervised parent to the other parent. There still remained questions to be explored, considered and answered in respect of the actions and words of the parent who has the obligation to ensure contact happens. 

29. In the circumstances, I dismiss the application for summary dismissal of those counts and I am satisfied that in respect of the counts that are alleged, that the mother does have a case to answer.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 16 January 2019.

Associate: 

Date:  24 May 2019