Rayes & Kistner
[2023] FedCFamC2F 953
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rayes & Kistner [2023] FedCFamC2F 953
File number(s): DGC 466 of 2019 Judgment of: JUDGE DICKSON Date of judgment: 3 August 2023 Catchwords: FAMILY LAW – CONTRAVENTION – Parenting – two children aged 11 and 8 years – where the mother contravened final orders by preventing time spending with the father – where the father has not seen the children for over 12 months – where the mother submits she has a reasonable excuse for contravening – where the mother alleges that the children are at risk in the father’s care – consideration of whether to adduce a ‘without prejudice’ offer exchanged between the parties – where the mother has been found to have contravened the final orders without a reasonable excuse – cost order made pursuant to Schedule 1 – order made for the mother to enter into a bond. Legislation:
Family Law Act 1975 (Cth) ss 70NAE, 70NAF, 117
Evidence Act 1995 (Cth) ss 131, 133
Federal Circuit and Family Court of Australia Law (Division 2) (Family Law) Rules 2021, Schedule 1.
Cases cited: Childers & Leslie [2008] FamCAFC 5
Gaunt & Gaunt [1978] FamCA 97
Hutchings & Clarke [1993] FamCA 22
Jets & Maker [2010] FamCAFC 55
Keehan & Keehan [2019] FamCAFC 250
Mitty & Mitty [2012] FamCA 329
O’Brian & O’Brian [1992] FamCA 52
Rice v Asplund (1979) FLC 90-725
Seaward & MacDuff [2011] FamCA 1041
Taikato & The Queen (1996) 186 CLR 454
Vaughton & Randle (No 2) [2013] FamCA 286
Division: Division 2 Family Law Number of paragraphs: 109 Date of last submission/s: 9 June 2023 Date of hearing: 14 April 2023, 12 May 2023 and 9 June 2023 Place: Adelaide Counsel for the Applicant: Mr Dunlop Solicitor for the Applicant: AFL Kordos Lawyers Counsel for the Respondent: Ms Chia Solicitor for the Respondent: Tyler Tipping & Woods ORDERS
DGC 466 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR RAYES
Applicant
AND: MS KISTNER
Respondent
ORDER MADE BY:
JUDGE DICKSON
DATE OF ORDER:
3 AUGUST 2023
UPON NOTING THAT Count 2 of the father’s Amended Contravention Application filed 11 April 2023 was withdrawn by consent.
AND THE COURT FINDS:
1.In relation to Count 1, that the mother contravened paragraph 2.2 of the final orders made 17 September 2019 without reasonable excuse and prevented the children from spending time with the father for the purposes of the July school holidays commencing 24 June 2022.
2.In relation Count 3, that the mother contravened paragraph 2.1.2 of the final orders made 17 September 2019 without reasonable excuse by withholding and preventing the children from spending school term time with the father commencing 11 July 2022.
3.In relation to Counts 1 and 3, that the mother had no reasonable excuse.
4.In relation to Counts 4 and 5, that there is no prima facie case.
THE COURT ORDERS THAT:
1.Paragraph 2.1 of the final consent order dated 17 September 2019 do resume on the next available weekend to coincide with the father’s rostered day off.
2.The father do notify the mother in writing within twenty-four (24) hours of the date referred to in paragraph 1 herein.
3.The mother be restrained and an injunction is hereby granted restraining her from attending at the said children’s school or schools at any time when the father is to collect the said children pursuant to the final orders dated 17 September 2019.
4.Pursuant to section 70NEB(1)(d) of the Family Law Act 1975 (Cth) the mother be required to enter into a bond with the Court upon the following terms and conditions:
(a)To be of good behaviour and comply with all parenting orders made under the Family Law Act 1975 (Cth) for a period of twelve (12) months from the date hereof; and
(b)To pay the sum of $500 in the event that she fails to comply with the other conditions of this bond.
5.Pursuant to section 70NEB(1)(f) of the Act that the mother do pay the father’s costs of and incidental to the amended Application for Contravention filed on 11 April 2023 in the sum of $10,888 (inclusive of GST).,
6.The payment of costs referred to in paragraph 5 herein be stayed pending the resolution of the mother’s Initiating Application filed 13 September 2022 for settlement of property whether such resolution be by way of consent orders or determination by the Court.
7.The mother do attend at the Melbourne Registry of the Federal Circuit and Family Court of Australia in person at on 4 August 2023 at 2.15pm to receive an explanation in relation to the bond as required by section 70NEC(5) and to sign the bond in the presence of Judicial Registrar of the Court.
8.The matter be relisted before Judge Dickson on a date to be advised in the event that the mother does not attend upon the said Judicial Registrar as provided for in paragraph 7 herein.
9.The father’s Application for Contravention filed 15 August 2022 and Amended Application for Contravention filed 11 April 2023 are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DICKSON:
INTRODUCTION
On 14 April 2023, 12 May 2023 and 9 June 2023 respectively, the Court heard a Trial in relation to the applicant father’s (‘the father’) Application for Contravention filed on 19 August 2022, as amended on 11 April 2023 (‘the said Application’).
Each of the parties were legally represented at the Trial.
At Trial, Count 2 of the said Application was withdrawn as being a duplication of Count 3.
On 14 April 2023, the respondent mother (‘the mother’) did not admit Counts 1, 3, 4 and 5 inclusive of the said Application and argued that she had a reasonable excuse for contravening the final order made by consent on 17 September 2019. The mother sought that the said Application be dismissed and opposed all orders for costs.
The Trial was adjourned part heard to 12 May 2023 where final submissions were listed for hearing. For the reasons set out herein the final submissions were not ultimately concluded until 9 June 2023. Judgment was then reserved.
These are the Court’s reasons for decision arising from the Trial.
BACKGROUND
The father is 35 years of age. The mother is 32 years of age.
The parties commenced a relationship in 2014 before finally separating on 5 February 2019.[1]
[1] Noting the father asserts this date and the mother asserts that final separation occurred on 1 February 2016.
There are two children of the relationship, X born in 2012, now 11 years of age, and Y born in 2014, now eight years of age (‘the children’).
Final parenting orders were made by consent between the parties on 17 September 2019 (‘the final orders’). The final orders provide for the parties to have equal shared parental responsibility, the children live with the parties in a shared care arrangement on an alternating week rotation, half school holidays and special occasions. Paragraph 2 of the final orders contained a provision that each party was to notify the other of any change in address within 24 hours. Further final consent orders were made regulating parenting arrangements which are not relevant to the current application.
As at the date of the making of final orders, each of the parties were legally represented and an Independent Children’s Lawyer appeared for the children.
At Trial, it was not in dispute that the father had not spent time with the child Y since 14 June 2022 and had not spent time with the child X since 22 June 2022.
SIGNIFICANT CHRONOLOGICAL EVENTS
On 31 August 2021:
·The father forwarded a text message to the mother seeking disclosure of her residential address pursuant to paragraph 6 of the final orders.
On 5 December 2021:
·A violent incident occurred at a local park involving the father, his domestic partner and two members of the public (‘the park incident’). The incident occurred after the children reported to the father having been verbally abused by adult members of the public for throwing “bark chips” on a walk path. The father attended and a physical altercation then took place between the adults concerned. It was unchallenged at Trial that the child X was only present at the commencement of the incident for a short period. The child Y was not present at all.
·The father’s time with the children continued pursuant to the final order.
On 1 January 2022:
·The father forwarded a text message to the mother seeking disclosure of her residential address pursuant to paragraph 6 of the final orders.
In May 2022:
·The mother alleged that the father threatened to “kill” her.[2] The mother further alleged the father verbally abused her at changeovers and through text message.
[2] See the Affidavit of Ms Kistner filed 13 September 2022 at paragraph 16.
On 7 June 2022:
·A Final Intervention Order was made at the Region B Magistrates Court against the father in which the protected persons are the mother and the children. By its terms, the Intervention Order permitted contact between the father and the protected persons pursuant to orders made under the Family Law Act 1975 (Cth) (‘the Act’). The Intervention Order expired in June 2023.
In June 2022:
·The mother alleged that the children disclosed to her for the first time the park incident.[3] The mother further alleged that, following the park incident, the father “threatened to slit [Y’s] throat with a pair of scissors’.[4] The mother alleged that the children now described being traumatised by the park incident and the father’s response.
[3] Ibid at paragraph 17.
[4] Ibid at paragraph 17(f).
On 14 June 2022:
·The father’s last contact with the child Y occurred.
On 22 June 2022:
·The father’s last contact with the child X occurred.
On 22 June 2022:
·The mother forwarded a text message to the father advising that the children would be remaining in her care. The father alleged that mother refused to advise him as to why the children were being withheld.
On 22 June 2022:
·The mother obtained a letter from Ms C, a Support and Safety Hub practitioner at the “Domestic Violence Centre”[5] confirming assistance provided to the mother and the children after the mother applied for the Intervention Order.
[5] See the Affidavit of Ms Kistner filed 24 November 2022 at ‘Annexure -4’.
On 23 June 2022:
·The father’s solicitors forwarded correspondence to mother’s solicitors in relation to the threatened withholding. The father foreshadowed issuing a contravention application and seeking indemnity costs.
On 27 June 2022:
·The mother via her solicitor advised that the mother had been ‘recently informed’ of the park incident. The mother alleged that both children had observed the incident and were “significantly traumatised by it.” The letter advised that such was the trauma suffered by the children, “that police who attended the incident were moved to make application to the [Region B] Magistrates Court for an Intervention Order to protect both the children and the mother”.
·It was alleged that the mother had attempted to facilitate the children returning to the father in accordance with the existing orders “without success”. The mother proposed negotiations with a “view to arriving at a new arrangement for the children maintaining a relationship” with the father which was said to be “consistent with their safety and welfare, having regard to the events described”.[6]
[6] See the Affidavit of Mr Rayes filed 14 December 2022 at ‘Annexure -3’.
On 28 June 2022:
·The father’s solicitors forwarded correspondence to the mother’s solicitors enclosing copy of the father’s Charge Sheet and threatening to institute proceedings without further notice and to seek indemnity costs.
On 11 July 2022:
·The children were due to be in the father’s care pursuant to paragraph 2.1.1 of the final orders. The father attended at the school to collect the children. On arrival, the father learnt that the children had been earlier removed from school by the mother.
On 13 September 2022:
·The mother filed an Initiating Application seeking to vary the final parenting orders and to bring an application for property settlement. It is conceded by the mother that her property settlement application is filed out of time and that leave by the Court is required for her to proceed.
In September 2022:
·The mother alleged that the child Y disclosed witnessing the father “sexually assault his current partner”.[7] The mother stated in her evidence that she did not seek further detail from the child as she was “very uncomfortable speaking about what she had seen”. The mother then contacted Victoria Police SOCIT Team and the child Y’s counsellor for advice. The mother deposed the child was interviewed by SOCIT but did not disclose what had happened and the matter was not taken further.[8]
[7] See the Affidavit of Ms Kistner filed 1 December 2022 at paragraph 30.
[8] Ibid at paragraphs 30(c) and 30(d).
On 3 October 2022:
·The mother alleged that following a visit to a neighbour called Ms D, the child Y disclosed to Ms D an act of drunken behaviour by the father towards his domestic partner. Ms D informed the mother that the child Y disclosed not having told the police the truth of this event as she was “scared of her father”.
·The mother described “supporting [Y] in dealing with her trauma” and further that the child “continues to engage in Therapy and is working on processing her emotions and fears”.[9] Further, that E Family Centre referred the child Y to F Counsellors for specialised counselling.
[9] Ibid at paragraph 32.
On 6 April 2023:
·The father plead guilty to two charges of unlawful assault in relation to the park incident. The father was ordered to provide undertaking to be of good behaviour for a period of 12 months and to pay into Court the sum of $500. No conviction was recorded.[10]
[10] See ‘Exhibit F1’.
DOCUMENTS RELIED UPON
The father relies upon:
(1)Amended Application for Contravention filed 15 August 2022 and Amended on 11 April 2023;
(2)Affidavit filed 15 August 2022 and refiled 14 December 2023 (the father’s affidavit);
(3)Documents tendered at Trial identified and described as follows:
(a)Exhibit F1 – Undertaking entered into by the father at the Region B Magistrates Court (Victoria) dated 6 April 2023;
(b)Exhibit F2 – Application for Intervention Order made by Victoria Police against the father on or about 9 May 2022;
(c)Exhibit F3 – Bundle of text messages between the parties;
(d)Exhibit F4 –Message from Mr G, School Principal to the father;
(e)Exhibit F5 – Message from the father to the mother in relation to the child Y’s birthday;
(4)Outline of Case document filed on behalf of the father on 13 April 2023; and
(5)Written Submissions filed on behalf of the father dated 22 April 2023.
The documents relied upon by the mother are as follows:
(1)The mother’s affidavits of 13 September 2022 and 1 December 2022;
(2)Outline of Case document filed 13 April 2022; and
(3)Written Submissions filed on behalf of the mother dated 5 May 2023.
ISSUES IN CONTENTION
The central issues in contention at Trial are as follows:
(1)Did the mother have reasonable excuse for preventing the children from spending time with the father:
(a)In the July school holidays 2022 pursuant to paragraph 2.2 of the final orders – Count 1.
(b)During school term time commencing 11 July 2022 pursuant to paragraph 2.1.2 of the final orders – Count 3; and
(2)Whether or not the mother had failed to notify the father of any change in her address within 24 hours in accordance with paragraph 6 of the final orders and if so, did she have a reasonable excuse for doing so? – Counts 4 and 5.
Oral Application to Adduce Without Prejudice Communication
On the last day of Trial, the father’s counsel made an oral application to put before the Court without prejudice correspondence dated 11 May 2023 from the mother’s solicitors to the father’s solicitors. The oral application made pursuant to the ‘rule’ in Hutchings v Clarke [1993] FamCA 2022.
It was not contested that the said correspondence contained without prejudice communication from the mother to resolve all outstanding applications before the Court.
The father’s counsel argued that the Court should receive the communication because it was necessary to contradict or to qualify evidence adduced in the proceeding.[11]
[11] Evidence Act 1995 (Cth) s 131(2)(g).
The Court was also invited to receive the document and inspect it for the purpose of determining this question.[12]
[12] Evidence Act 1995 (Cth) s 133.
The oral application was opposed by the mother.
Importantly the father’s counsel conceded that the need for the Court to rule on this issue would be ‘redundant’ if the Court found that the mother had no reasonable excuse for breaching the final orders.
For the reasons set out herein, the Court has found that the mother had no reasonable excuse for breaching paragraph 2.2 and paragraph 2.1.2 of the final orders.
Accordingly, the Court declines to rule on the issue of the admissibility (or otherwise) of the without prejudice communication dated 11 May 2023 and will not receive it.
THE FATHER’S EVIDENCE
The father gave brief updating evidence in chief and otherwise relied upon the documents referred to herein.
The updating evidence was important because it informed the Court as to the outcome of the criminal charges which arose following the park incident on 5 December 2021. On 6 April 2023 the father plead guilty to two counts of unlawful assault at the Magistrates Court at Region B. The father entered into a ‘Undertaking with Conditions’ which expire on 5 April 2024 and was also issued with a fine. The father is required to be of ‘good behaviour’ during the time that the Undertaking is in force. The father was not convicted of any charge of unlawful assault.
The father was cross examined by the mother’s counsel.
The father conceded under cross examination that he had received correspondence from the mother’s solicitor on 7 June 2022 advising him that time spending with the children would be withdrawn. The father agreed that he had been invited to attend a mediation adding that he thought he had started the process. The father agreed that from his perspective he did not see what needed to change from the final orders.
The father strongly denied that the children were ‘traumatised’ by the events at the park on 5 December 2021.
The father agreed that the mother had put forward proposals for him to see the children since they were withdrawn from Court ordered time spending in June 2022. The father qualified this by observing that the only offer of time was that it be supervised by the maternal grandmother. The father acknowledged that in the absence of agreement regarding the maternal grandmother supervising his time with the children as suggested by the mother, that no time had taken place.
When asked as to what he wanted to achieve in filing the Contravention Application, the father replied “I want to see my kids”. The father denied any need for a transitional period to be re‑implemented for him to see the children given the hiatus in their relationship.
The father admitted having consumed “a few beers” prior to the park incident but denied that he was intoxicated. The father agreed that he had been “drinking throughout the day”. The father conceded that he had been upset and in a “heightened” emotional state after becoming aware that the children had been involved in some form of altercation with adults present at the park.
The father was adamant in his evidence that the child Y was not present at any time during the incident on 5 December 2021. The child X was present at the commencement of the incident but then removed by the paternal grandmother. The father agreed that the child X would have seen the father “pushed to the ground”.
The father conceded that he had consented to the intervention order obtained by the mother in June 2022. The father denied being aware of the children being referred to the ‘Domestic Violence Centre’.
The father denied that the mother had a reasonable excuse for ceasing time and stated again that the children had not been “traumatised” by the events of 5 December 2021. The father denied directing the children not to disclose the events of that day to the mother.
The father denied the assertion made by the mother’s counsel that the mother had acted “protectively.” The father made the point that the mother could have contacted him and the whole issue could have been dealt with without the need for the children to have a disrupted relationship with their father and further litigation.
In response to questions regarding the alleged disclosure made by the child Y to the mother in June 2022, the father vigorously denied “blaming” the child Y for the events at the park. The father strongly denied the allegation that he had used words to the effect of “threatening to slit” either the throat of the mother or the child. The father strongly denied any incident which could be described as a “sexual assault” on his partner allegedly witnessed by the child Y. In the father’s words “This never happened”.
The father’s evidence was not shaken under cross examination. He gave his evidence in a straight forward and direct manner. Where his evidence is at odds with the mother, the Court prefers the evidence of the father.
THE MOTHER’S EVIDENCE
The mother was cross examined by the father’s counsel.
The mother conceded that she would not have agreed to the final orders on 17 September 2019 if she had not considered that those orders were in the children’s best interests.
The mother agreed that in June 2022 she had sought counselling at the ‘Domestic Violence Centre’ for herself and the children stating that the referral to the ‘Domestic Violence Centre’ came about following the park incident on 5 December 2021. Later in her cross examination however, the mother conceded that the referral to the ‘Domestic Violence Centre’ came about prior to the children telling her of the park incident. In other words, the referral to the ‘Domestic Violence Centre’ had no connection with the park incident at the point of original referral.
The mother conceded that she had gone to the police in May 2022 to make a complaint. The mother agreed that the information that she had given to the police at the time was true but stated that she had not informed the police of all of her concerns as there had “more disclosures as time went on”.
The mother was challenged in relation to the content of her statement to police as contained in ‘Exhibit F2’. When it was put to the mother that nowhere in her police statement did she inform the police that the father had threatened to stab the mother with a pair of scissors, the mother agreed but countered that her statement was missing further information that she had told the police at her initial point of contact. In other words, the police had failed to record all of her complaints.
The mother conceded that nowhere in the statement to the police in May 2022 had she complained about the children’s behaviour or of them being frightened of their father. The mother agreed that the police had recorded that the messages between the parties produced by her were said to be “civil”.
The mother stated that she had spoken with police officers for over one hour and that it had not been possible to fit all of her disclosures into one paragraph. The mother conceded that the father’s alleged threat with scissors was against her and not the child Y. The mother conceded that nowhere in her affidavits or police statement did she suggest that the father had threatened to kill the child Y. The mother conceded that the evidence in her affidavits and the evidence which she now gave to the Court was significantly different. She stated that the correct version was an alleged threat by the father to the mother and the child Y. The fact that this was not in her affidavit was said to be an “oversight”. The mother agreed that the father was not charged with any such offence arising from her complaint to police.
The mother was challenged as to the date upon which she became aware of the park incident. The mother’s evidence at Trial that she had been advised of the incident by the child Y in the first or second week of May 2022. The mother then added that “the police confirmed it”. This was said to be in the first week of May 2022.
The mother conceded that she had known of the “park” for at least seven weeks when her correspondence dated 27 June 2022 advising the father that time would cease had been forwarded by her solicitors. The mother claimed that she had not read the letter before it was forwarded on her behalf.
The mother conceded under cross-examination that the Intervention Order Application was made in the context of the dispute over the haircut and had nothing to do with the park incident.
Under cross-examination the mother accepted that the child Y was not at the park and accepted that the child X only witnessed “some of the event”.
The mother conceded that following the park incident the children had continued to spend time with their father for the next seven months and that nowhere in her affidavits did she make complaint about the father’s care of the children during the relevant seven month period.
The mother agreed that in Term 3 of 2022 she had withheld the children from attending at school on days when the children were meant to be in the care of the father pursuant to the final orders. The mother asserted that the children were “terrified” if they saw the father’s motor vehicle and so she then withheld them from attending at school so that they could not be collected by the father pursuant to the final orders.
The mother was asked about an attempt made by the father to spend time with the child Y for her birthday in 2022 as shown in Exhibit F5. The mother stated that she did not recall receiving a text message from the father in late 2022 requesting an opportunity to see his daughter for her birthday.
The mother agreed that the father had declined offers for supervised time pending resolution of the Contravention Application and agreed with the proposition that her offer of time spending amounted to “accept my proposal or get nothing”. The mother then stated in her evidence that the parties needed to ‘move forward’. Whilst stating that it was inappropriate for shared care to continue when the father’s conduct was “violent and aggressive”, the mother was unable to provide any alternative which might enable the parties to “move forward” as she suggested.
The mother was cross examined about the child Y being referred for sexual assault counselling. Despite conceding that she was aware of her obligations given the existence of a final orders for equal shared parental responsibility, the mother agreed that she had not informed the father of the referral and further, could not understand why the father would not agree to the counselling taking place. This ignores the fact that nowhere in the evidence was there a suggestion that the child Y had been sexually assaulted at all.
The mother was not cross examined on Counts 4 and 5 of the said Application as it related to a failure by her to provide an address.
Overall, the mother’s evidence did not assist the Court to understand the mother’s defence. Her oral evidence on a number of important topics was markedly different to what was contained in the affidavits relied on by her at Trial. The mother’s counsel sought to explain the obvious problems with the mother’s oral evidence by submitting that that “the mother should not be criticized for not having a perfect recollection of specific dates and exact contents of the disclosures because she is a victim of family violence.”[13]
[13] See the Written Submissions of Counsel for the Mother filed 5 May 2023 at paragraph 22.
The Court is unable to accept that submission on its own. The mother was not present at the park incident. The mother made complaint to the police regarding the alleged threat made by the father in relation to the child Y’s haircut. The father was never charged with any offence arising from the alleged threat.
The mother relied heavily on the letter from the Domestic Violence Centre dated 22 June 2023.[14] The mother argued that it was because of advice provided by the Domestic Violence Centre that she withheld time spending contrary to court order. The letter from the Domestic Violence Centre does not support the mother’s assertion and no one from the Domestic Violence Centre was called to give evidence on the mother’s behalf at Trial.
[14] See the Affidavit of Ms Kistner filed 1 December 2023 at ‘Annexure -4’.
LEGAL PRINCIPLES
The applicable law in respect of failure to comply with orders that affect children is contained in Division 13A of Part VII of the Act. The purpose of Division 13A is to ensure compliance with parenting orders made by the Court as distinct from a party being “punished” i.e., for contempt.[15]
[15] Keehan & Keehan [2019] FamCAFC 250;
The standard of proof in determining whether or not a person has a reasonable excuse for contravening an order is on the balance of probabilities.[16]
[16] Family Law Act 1975 (Cth) s 70NAF.
All findings in these Reasons are made to that standard.
The applicant bears the onus of proving the contravention on the balance of probabilities.[17]
[17] Jets & Maker [2010] FamCAFC 55.
A person 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 for in the order if:
(a)That person believed on reasonable grounds that not allowing the child and person to spend time together with was necessary to protect the health or safety of a person (including that person 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).[18]
[18] Family Law Act 1975 (Cth) s 70NAF.
The onus of establishing the requirements of section 70NAE(5) of the Act have been met is on the mother. The mother must establish that she believed on reasonable grounds that not allowing the child to spend time with the father was:
(1)Necessary to protect the health or safety of the child;
(2)That the period of the contravention was not longer than was necessary to protect the health or safety of the child; and
(3)That the belief was based on reasonable grounds.
These requirements have been described as having both a subjective and an objective element.[19]
[19] Vaughton & Randle (No 2) [2013] FamCA 286, [82] – [83].
The definition of ‘reasonable excuse’ described at section 70NAE(1) has been held to be expansive insofar as the circumstances in which a person may be taken to have had such an excuse include, but are not limited to, the circumstances set out otherwise in section 70NAE of the Act. The Court has recognised that section 70NAE(1) requires an objective test, albeit that one might include ‘subjective’ aspects.[20]
[20] Childers & Leslie [2008] FamCAFC 5.
A belief that the orders are not in the best interests of a child is not sufficient to constitute a reasonable excuse.[21]
[21] Gaunt & Gaunt [1978] FamCA 97; O’Brien & O’Brian [1992] FamCA 52.
The High Court’s comments in Taikato v the Queen [1996] HCA 28; (1996) 186 CLR 454 at 466 (cited in a family law context in cases such as Seaward & MacDuff [2011] FamCA 1041 and Mitty & Mitty [2012] FamCA 329), are also of assistance in relation to the interpretation of the term “reasonable excuse”:
The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception…
… However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts, the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so, the courts must give effect to the will of Parliament and give effect to their own ideas of what is a “reasonable excuse” in cases…
DID THE MOTHER HAVE A ‘REASONABLE EXCUSE’ FOR CONTRAVENING FINAL ORDERS?
The Court is not satisfied on the evidence available that the mother has established a reasonable excuse for breaching the orders as contained in Counts 1 and 3 of the said Application.
It was difficult to follow what in fact the mother’s defence was. The park incident had occurred seven months prior to time being unilaterally suspended by the mother. The mother conceded that nowhere in her evidence had she made complaint about the father’s actual care of the children during the seven months that followed.
It is hard to reconcile the mother’s assertion that this incident provided a defence to her non‑compliance with Court orders given that in occurred seven months prior to time being withdrawn by her.
The alleged threat of harm by the father to the mother and the child Y in or about May 2022 was also difficult to follow from the evidence. The mother conceded that her complaints to the police did not include reference to the child Y. This was explained by the mother complaining that the police had not recorded all of her complaints accurately or at all.
Even then time between the father and the children continued until June 2022.
The Court finds that the withdrawal of time was not necessary to protect the health or safety of the children. Any belief that it was necessary would have been unreasonable. Nor is it reasonable that the children have not now seen their father for over 12 months.
None of the evidence supports the child Y being referred for “sexual assault counselling” and it is concerning that the mother would even entertain such a step especially given the outstanding order for equal shared parental responsibility.
As to Counts 4 and 5, the father submits that in the absence of any challenge to the father’s evidence concerning Courts 4 and 5, that the Court finds that the mother had contravened paragraph 6 of the final orders.[22]
[22] See the Written Submissions of Counsel for the Father filed 21 April 2023 at paragraph 20.
The mother was not cross examined on these counts. Understandably the focus at Trial was on the events leading up to the cessation of a relationship between the children and their father.
In the circumstances of this case, the Court is not prepared to infer that the mother’s silence on this issue equates to a finding of guilt. Counts 4 and 5 shall be dismissed.
SANCTIONS
At Trial, the father’s counsel submitted that if the mother was found not to have a reasonable excuse for breaching the orders that the matter should proceed on the basis of it being a ‘less serious’ contravention and that the mother should enter into a bond without surety to comply with orders of the Court.
The Court considers that it is appropriate in the circumstances of this case that the mother enter into a bond for a period of 12 months on condition that she comply with all orders of this Court and the Federal Circuit and Family Court of Australia (Division 2) and a modest surety of $500.
The Court will impose the bond after an opportunity has been afforded to the mother to explain that the purpose and effect of the bond is that she be of good behaviour during the period of the bond and that she comply with all orders of the Court, both existing and yet to be made for the period of 12 months hence.
Should the mother fail to do so, the Court will give consideration to the imposition of other sanctions.
It also needs to be explained to the mother that if she fails to act in accordance with the bond then any surety will be forfeited and the Court may impose a fine, revoke the bond or deal with the mother in any manner which could have been dealt with for the original contravention.
COSTS
If successful, the father sought costs as set out in the updated Costs Notice provided to the Court dated 9 June 2023. The Costs Notice provides that in relation to the Contravention proceedings initiated on 19 August 2022 the father had paid professional costs and disbursements in the sum of $17,400 (including GST) with the source of payment being his personal savings.
The Costs Notice also includes a breakdown of the costs incurred by the father for counsel. It is not clear to me whether or not counsel’s fees are included in the ‘professional costs and disbursement’ which total $17,400 or are in addition to that sum.
In this case, the father has been successful in relation to the two substantive counts of his Contravention Application. The father has not been successful in relation to the two counts as they relate to provision of a residential address.
Having regard to section 117(2A) of the Act, the Court brings to account the following in considering an order for costs:
(1)The mother is in receipt of a grant of Legal Aid. The father is not. However, the mother has instituted proceedings for property settlement out of time. The father proposes that any costs order be deferred until the application of the mother on property aspects are determined by the Court. I consider this to be an appropriate pathway forward;
(2)The proceedings were necessitated by the failure of the mother to comply with the orders of the Court;
(3)The father has been wholly successful in relation to the substantive aspects of his Contravention Application but not in relation to the two minor aspects;
(4)The Court has declined to receive any offers in writing to settle the proceedings. The application by the father for the Court to receive this correspondence which was marked ‘without prejudice’ was vigorously resisted by the mother and for the reasons set out herein it is considered redundant for the Court to receive the correspondence given the findings of the Court as to the ultimate outcome.
The Court does not consider it just to make an order for costs in the quantum as sought by the father. Rather, the costs should be imposed pursuant to Schedule One of the Federal Circuit and Family Court of Australia Law (Division 2) (Family Law) Rules 2021. In respect of the quantum, the Court brings to account Items 7, 9, 11, 13 and 14 in determining that the quantum of costs should be fixed in the sum of $10,888. As proposed by the father, I consider it just to order that the costs be paid at the conclusion of the mother’s application for property settlement (whatever the outcome).
CONCLUSION
It is important for the parties to understand that in this current litigation, the Court is only considering the father’s Application for Contravention. Given the mother’s denial to each count of the said Application at Trial, the issues for the Court’s determination relate only to whether or not the mother had contravened the relevant order and if so, did she do so without reasonable excuse. The Court has found against the mother on the two substantive counts.
The mother has now filed an Initiating Application seeking to re-agitate parenting arrangements. This Application is resisted by the father who relies upon the principle set out in Rice v Asplund.[23] The question of whether or not there should be any variation to the final orders remains a matter for determination at a later stage of those proceedings.
[23] (1979) FLC 90-725.
It is appropriate for the Court to recalibrate the commencement of the father’s time as set out in these Reasons. Given the evidence at Trial the Court also considers that an order should be made restraining the mother from attending at any school handover when the father is to collect the children so that there is no further interference with pick up or delivery.
For all of those reasons, the Court makes the orders as set out at the commencement of these Reasons for Judgment.
I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dickson. Associate:
Dated: 3 August 2023
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