Rogers and Bloom
[2014] FamCA 20
•22 January 2014
FAMILY COURT OF AUSTRALIA
| ROGERS & BLOOM | [2014] FamCA 20 |
FAMILY LAW – CHILDREN – With whom a child spends time
FAMILY LAW – ORDERS – Contravention – ten counts of contravention alleged – reasonable excuse – less or more serious contraventions.
Family Law Act 1975 (Cth) s 70NAC, 70NAE, 70NAF, 70NEA, 70NEB, 70NEC, 70NFA, 70NFB, 70NFC, 70NFE, 70NFG
| Family Law Rules 2004 (Cth) Rule 21.08 |
Clintock & Levier [2009] FamLR 245
Elsbeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655
Gravis & Major [2010] FamCAFC 239
| APPLICANT: | Mr Rogers |
| RESPONDENT: | Ms Bloom |
| FILE NUMBER: | ADC | 3452 | of | 2009 |
| DATE DELIVERED: | 22 January 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 4 & 5 November 2013 11 & 17 December 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lewis |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Mr Eid appearing on 4 & 5 November 2013 and then Respondent appearing in Person |
| SOLICITOR FOR THE RESPONDENT: |
Orders
That the Contravention Application is adjourned to 13 February 2014 at 2.15pm before the Honourable Justice Berman for the Court to hear submissions from the parties as to penalty and costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rogers & Bloom has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 3452 of 2009
| Mr Rogers |
Applicant
And
| Ms Bloom |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment concerns an Application for Contravention of orders filed on behalf of Mr Rogers (“the father”) on 7 June 2013.
The respondent is Ms Bloom (“the mother”).
The Application for Contravention asserts 13 counts concerning the two children of the relationship namely J born … May 2004 and K born … March 2006.
It is alleged by the father that the mother has failed to comply with orders of this Court and that in respect of each count she did so without reasonable cause or excuse.
The Hearing
The evidence was heard on 4, 5 November 2013, 11 December 2013 and then final submissions were made on 17 December 2013.
At the commencement of the proceedings both the mother and the father were represented by counsel. In particular, the mother had representation for the hearing on 4 and 5 November 2013.
On 11 December 2013 the mother was to give her evidence and be cross examined by counsel for the father. The mother appeared but was unrepresented. The Court file reflects that the mother’s solicitors Hyde White Legal Services filed a Notice of Ceasing to Act on 28 November 2013. There was no appearance by Mr Eid of counsel who had previously appeared for the mother nor by her former solicitor as a courtesy to the Court to seek leave to withdraw.
The lack of any notice and/or explanation as to why the mother was unrepresented created significant difficulty for the Court and the parties. The mother sought an adjournment of the proceedings because she was uncertain how she would proceed and in any event she said she was unwell. She proffered a medical certificate which asserted that she was suffering with gastroenteritis. She was allegedly not fit for work for a period of 48 hours but it said nothing about whether her medical condition would prevent from participating in the proceedings.
I determined that before a decision should be made acceding to the mother’s oral application for an adjournment I would require her to give evidence as to the reasons why she was no longer represented and then her general practitioner Dr B would be called by way of telephone link to provide better detail of the mother’s current medical condition and whether she was so debilitated that in all the circumstances it would be unfair or unreasonable to require her attendance at Court. She said to the effect that there had been an issue as to her legal fees and her ability to pay them prior to the adjourned date. The mother gave evidence that she had paid her solicitors and had even paid an extra sum to enable counsel to appear on her behalf on 5 December 2013, but by the time she had paid, Mr Eid was no longer available.
Dr B gave evidence to the effect that in his professional opinion there was no good reason notwithstanding the mother’s present medical condition that she could not give evidence in Court providing appropriate opportunity was afforded to her for regular breaks during the proceedings.
Given that the mother was to be the subject of cross examination and that there appeared to be no medical reason why she could not give evidence, I determined that the matter should proceed. I was however concerned as to the behaviour of her solicitors and counsel and accordingly the order of 5 December 2013 listed the matter for final submissions to 17 December 2013 but with a further order that the mother’s former solicitors attend before me.
The purpose of such an order was to explore whether there had been a breach of the lawyers duty at common law to complete work namely, to have regard to and consider the doctrine of “entire contract”.
The principle that a retainer for legal work requires a lawyer to “do what is necessary to institute and defend the action and bring it to a conclusion before becoming entitled to payment of any professional fees, as distinct from outlays on behalf of his client in the course of the litigation” is subject to the implied term that a solicitor is able to withdraw for good cause and upon reasonable notice.
I was satisfied from the matters raised by the mother that there was not reasonable notice in circumstances where the proceedings were part-heard. The issue therefore focussed on whether there was “just cause”.
On the adjourned date the mother’s former solicitors were represented by counsel namely Ms West. It was put to the Court what whilst the issue of payment of the outstanding fees was clearly a consideration, there were other matters which prevented the mother’s former solicitors from continuing her representation. Those circumstances would have amounted to a conflict of interest. I did not enquire as to the extent of the conflict but simply relied upon the proper submissions of counsel that if in her opinion circumstances were such that the mother’s previous solicitors could not continue to represent her, whilst issues of courtesy to the Court may have been a consideration, it would not have been appropriate to require the continued representation of the wife by her former solicitors.
Accordingly, the proceedings were resolved on 17 December 2013 by submissions made on behalf of the applicant father and less skilfully so by the respondent mother.
Background
The father was born in 1983. The mother was also born in 1983. The parties commenced cohabitation in or about June 2003 and finally separated in or about February 2007. As stated there are two infant children of the relationship namely J and K.
The proceedings have had a long history with the first application filed in this Court on 2 September 2009 and a response filed by the mother on 6 October 2009. There is significant dispute between the parties and the relationship between them is marked by mistrust and significant enmity.
Ultimately the parties reached agreement by way of final orders made before Federal Magistrate Simpson (as he then was) on 12 May 2011.
It is from those orders that the current Application for Contravention and the various alleged breaches have its genesis.
Since the making of the said orders the current Contravention Application is the first such application in the proceedings.
Application for Contravention
At the commencement of the proceedings counsel for the father sought that Counts 3, 5 and 13 of the said Application for Contravention be dismissed. It was then noted that there had been an error in the submission and on application I ordered that Count 3 of the said application be re-instated but that Count 6 be dismissed. Count 8 was amended by deleting the reference to the child K born in March 2006. Accordingly, the counts that were proceeded with are Counts 1, 2, 3, 4, 7, 8, 9, 10, 11 and 12.
Count 1 & 2
Counts 1 and 2 allegedly occurred at 3pm on 8 June 2012 at the mother’s home at C Street, Town D. These Counts allege a breach of order 4 of the Consent Orders certified by Simpson FM on 12 May 2010 and in respect of Count 2 it is alleged that there is a breach of Order 18 (b) of the said order.
The statement of the alleged contravention in relation to Count 1 is as follows:-
The respondent mother, without reasonable excuse, refused and/or neglected to make the children [J] born … May 2004 and [K] born … March 2006 available for handover and collection by the father’s nominated agent in accordance with the said order.
Order 4 of the Consent Orders provides that the said children shall live with the father during school terms from the conclusion of school Friday (or 3pm if a non-school day) until the conclusion of school Thursday (or 3pm if a non-school day) each alternate week to commence on 13 May 2011 and to recommence on the first Thursday of each new school term.
The alleged contravention in respect of Count 2 is said to be in breach of order 18 (b) of the Consent Orders. The statement of the alleged contravention is:-
The respondent mother, without reasonable excuse, refused and/or neglected to make the children [J] born … May 2004 and [K] born … March 2006 available for handover and collection by the father’s nominated agent in accordance with the said order.
Order 18 (b) of the Consent Orders provides:-
That any handover which cannot be effected by the said children being delivered or collected to and from school shall take place at the mother’s home provided that:-
(a)…
(b)Each parent is at liberty to nominate one other person to effect handover in the event of an emergency.
Counts 3 & 4
Counts 3 and 4 allegedly occurred at 6pm on 21 December 2012 at the mother’s home.
Count 3 alleges a breach of order 6 (c) (i) (ii) of the Consent Order. The statement of alleged contravention is:-
The respondent mother, without reasonable excuse, refused and/or neglected to make the children available for handover and collection by the father in accordance with the said order.
Order 6 (c) (i) (ii) provides:-
(c ) during the Christmas school holidays subject to paragraph 6 (d) hereof as follows:-
(i)With the father for one half of the holiday period on a week about basis;
(1)…
(2)In the year 2012 and each alternate year thereafter to commence at 6pm on the eighth day of the holiday period until 6pm on the fifteenth day of the holiday period and each alternate week thereafter.
Count 4 allegedly occurred at 6pm on 21 December 2012 at the mother’s home. The alleged contravention is said to be in breach of Order 16 (b) of the Consent Orders. The statement of the alleged contravention is:-
The respondent mother without reasonable excuse, abused and/or harassed and/or denigrated the applicant father during the course of handover of the children.
Order 16 (b) of the Consent Orders provides:-
16. The mother and the father are restrained and an injunction is hereby granted restraining each of them from:-
(a) …
(b) Abusing, harassing or denigrating the other parent or from consuming alcohol to excess whilst the said children are in their care and shall use their best endeavours to prevent any other person from doing so.
Count 7
Count 7 allegedly occurred at 3pm on 1 February 2013 at the E School. The alleged contravention is said to be in breach of Order 4 of the Consent Orders. The statement of the alleged contravention is:-
The respondent mother without reasonable excuse refused and/or neglected to make the children available for handover and collection by the father in accordance with the said order.
Order 4 of the Consent Order provides:-
4. That the said children shall live with the father during school terms from the conclusion of school Friday (or 3pm if a non-school day) until the conclusion of school Thursday (or 3pm if a non-school day) each alternate week to commence on 13 May 2011 and to recommence on the first Thursday of each new school term.
Count 8
Count 8 allegedly occurred at 3.45pm on 3 May 2013 at F Street, Suburb G. The alleged contravention is said to be in breach of Order 4 of the Consent Orders. The statement of the alleged contravention is:-
The respondent mother without reasonable excuse, refused and/or neglected to make the child [J] available for handover and collection by the father in accordance with the said order.
Count 9
Count 9 allegedly occurred at 3pm on 17 May 2013 at H Street, Town D. The alleged contravention is said to be in breach or Order 4 of the Consent Orders. The statement of the alleged contravention is:-
The respondent mother, without reasonable excuse, refused and/or neglected to make the child [J] available for handover and collection by the father in accordance with the said order.
Count 10
Count 10 allegedly occurred at 5.30pm 22 May 2013 at the Town A Sports Stadium, Town A. The alleged contravention is said to be in breach of Order 16 (b) of the Consent Orders. The statement of the alleged contravention is:-
The respondent mother, without reasonable excuse, abused and/or harassed and/or denigrated the applicant father including assaulting the father by slamming a door closed on the father’s hand.
Count 11
Count 11 allegedly occurred at 3pm on 31 May 2013. The alleged contravention is said to be in breach of Order 4 of the Consent Orders. The statement of the alleged contravention is:-
The respondent mother, without reasonable excuse, refused and/or neglected to make the children available for handover and collection by the father in accordance with the said order.
Count 12
Count 12 allegedly occurred on 6 June 2013 at Adelaide. The alleged contravention is said to be in breach of Order 3 (c) of the Consent Orders. The statement of alleged contravention is:-
The respondent mother, without reasonable excuse, refused and/or neglected to consult the father in relation to issues concerning the health of the children.
Order 3 (c) of the Consent Orders provides:-
3. The mother and father shall consult with each other about all major long term issues affecting the said children including but not limited to issues about:-
(a) …
(b) …
(c) The said children’s health.
The Law
It is Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) that designates the legislative pathway concerning an application for contravention of orders made under the Act. The alleged contraventions as set out arise out of parenting orders made by consent on 12 May 2011 by Federal Magistrate Simpson (as he then was).
Subdivisions C to F of Division 13A of Part VII provides the orders available to the Court that can be made in instances where:-
(a)The contravention has been alleged but not established (Subdivision C);
(b)The contravention is established but reasonable excuse for the contravention is found (Subdivision D);
(c)The contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (Subdivisions E); and
(d)The contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (Subdivision F).
At the conclusion of the evidence and as part of the submissions made by counsel for the father, I was urged to find that if one or more of the counts is proven in circumstances where I find that there was no reasonable excuse available to the mother in respect of the said breach, or breaches, the Court should find that the mother has “behaved in a way that showed a serious disregard for his or her obligation under the primary order (Subdivision F)”.
Section 70NAC Meaning of “Contravened” an Order
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.
Section 70NAE Meaning of “Reasonable Excuse for Contravening” an Order
(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 not limited to, the circumstances set out in Subsections (2), (4), (5), (6) and (7).
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:-
(a)The respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)The Court is satisfied that the respondent ought be excused in respect of the contravention.
(3)If a Court decides that a person had a reasonable excuse for contravening an order under this Act for the reasons referred to in paragraph (2) (a), it is the duty of the Court to explain to the person, in language likely to be readily understood, the obligations imposed by the order and the consequences that may follow if he or she again contravenes the order.
(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 a 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)
(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 for in the order:-
(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).
(6)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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:-
(a)The respondent believed on reasonable grounds that not allowing the child and the person to communicate 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 person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which Section 65P applies by acting contrary to Section 65P if:-
(a)The respondent believed on reasonable grounds that the action constituting the contravention 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 that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
Section 70NAF Standard of Proof
(1) Subject to Subsection (3), the standard of proof to be applied in determining matters in proceedings under this division is proof of the balance of probability.
(2) Without limiting Subsection (1), that Subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
(3) The Court may only make an order under:-
(aa) Paragraph 70NEB(1) (d) (a); or
(ab) Paragraph 70NECA (3) (a); or
(a)Paragraph 70 NEFB (2) (a), (d) or (c); or
(b)Paragraph 70 NFF (3) (a):-
If the Court is satisfied beyond reasonable doubt that the grounds for making the order exists.
Less serious or more serious contravention
Section 70NEA sets out the manner in which a Court should deal with a contravention in circumstances where it is considered “less serious”. Section 70NEB sets out the powers of the Court as follows:-
(1)If this Subdivision applies, the Court may do any or all of the following:-
(a)Make an order directing;
(i)The person who committed the current contravention; or
(ii)That person and another specified person; to attend a post-separation parenting program;
(b)If the current contravention is a contravention of a parenting order in relation to a child – make a further parenting order that compensates the person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c)Adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d)Make an order requiring the person who committed the current contravention to enter into a bond in accordance with Section 70NEC;
(da) if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by a person under paragraph (d) – impose a fine not exceeding 10 penalty units on that person;
(e)If:-
(i)The current contravention is a contravention of a parenting order in relation to a child; and
(ii)The current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii)The person referred to in Subparagraph (ii) reasonably incurs expense as a result of the contravention; make an order requiring the person who committed the current contravention to compensate the person referred to in Subparagraph (ii) for some or all of the expenses referred to in Subparagraph (iii);
(f)Make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g)If the Court makes no other orders in relation to the current contravention – order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
Section 70NEC provides for the terms and conditions of a bond if a Court requires a person to enter into a bond under Section 70NEB (1) (d).
In respect of the more serious contravention, the provisions are to be found at Section 70NFA. The orders that are available to be made by the Court in respect of a breach pursuant to Section 70NFB are to be found in Subparagraph (2) and in those circumstances a Court is empowered to make a community service order under Section 70NFC, an order requiring a person to enter into a bond under Section 70NFE, to make a parenting order that compensates a person for time not spent with the child, a fine of not more than 60 penalty points or to impose a sentence of imprisonment on a person in accordance with Section 70NFG.
Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) outline the procedure for the hearing of an application for contravention orders:-
Rule 21.08 Procedure for Hearing
At the hearing of an application mentioned in items 1A, 2, 3, 4 or 5 in Table 21.1, the Court must:-
(a)Inform the respondent of the allegations;
(b)Ask the respondent whether the respondent wishes to admit or deny the allegations;
(c)Hear any evidence supporting the allegations;
(d)Ask the respondent to state the response to the allegations;
(e)Hear any evidence of the respondent; and
(f)Determine the case.
As set out at the commencement of these reasons, the counts that were not dismissed upon the application of the applicant father and noting the amendment to Count 8, were read to the respondent mother and it was her clear response that she denied each and every allegation in support of the various counts. The mother was represented at that time.
Evidence and submissions in respect of the various Counts
The father filed an affidavit on 7 June 2013 in support of the Application for Contravention filed on the same date. The father also relies upon an affidavit of his partner Ms L filed 7 June 2013 and for the purposes of the proceedings the father also relied upon a further affidavit filed by him on 4 September 2013.
The mother did not rely upon any affidavit material but rather chose to give evidence by way of examination in chief and was then the subject of cross examination.
Reference was made to text message communication passing between the parties. A bundle of text messages dated between 11 May 2012 and 3 July 2013 were tendered on behalf of the father and are marked Exhibit 1. During the course of the proceedings there was significant reference to the tendered text communication.
Evidence and Submissions – Counts 1 and 2
The father relied upon his affidavit filed 7 June 2013 and a more recent affidavit filed 4 September 2013 but in respect of the latter affidavit the focus was by way of reference in the cross examination of the mother to Annexures NR1 to NR4 inclusive. Paragraphs 61 to 66 of the affidavit filed 7 June 2013 set out the matters relevant to the alleged contraventions. In relation to Count 1 the father alleges that he had work commitments which required his attendance. In paragraph 63 he says:-
When handover was due to take place on Friday 8 June 2012 I had work commitments which I needed to attend as a priority. I had to complete [an agricultural activity] that day which must be undertaken within certain time and weather constraints. That day I had driven a truck, filled with …, to my father’s property at [Town M] which is approximately a 50 minute drive from [Town D] in the truck. I had therefore asked [Ms L] to collect the children from school on my behalf. At around 2pm I recalled that it was a pupil free day. Accordingly, handover was to be effected at the mother’s home in [Town D].
The mother agrees that she did not make the children available to the father or Ms L on that day. The issue for the mother in respect of Count 1 and 2 is not that she puts forward a reasonable excuse for her refusal to make the children available pursuant to Order 4 of the said orders, but rather that she relies upon the provisions of Order 18 (b) namely, she was not satisfied that there was an emergency and accordingly she did not have to provide the children to Ms L. The mother also alleges that when Ms L attended and was asked by the mother where the father was she attributes a statement to Ms L that the father had “gone fishing”. The mother says that in her mind this did not constitute an emergency and accordingly she was justified in withholding the children.
Upon the father being made aware of the mother’s attitude, he later attended and the children were delivered up to him.
I am not able to take into account the intent of the parties in respect of the mischief (if any) that was intended to be addressed by Order 18 (b). Nor is it necessarily clear whether the test of “an emergency” is a subjective or objective test. I am not able to determine on the balance of probabilities whether the statement attributed to Ms L by the mother was actually said. The uncertainty that arises is such that I am not able to find that Counts 1 and 2 have been established. Before leaving the matter however it is appropriate to make the observation that the wisdom of including an alleged breach of the Consent Order that occurred on 8 June 2012 in respect of an Application for Contravention filed nearly a year later is questionable. Equally there is no suggestion that Ms L was a stranger to the mother and it seems that the mother adopted a somewhat rigorous approach to the application of the orders in circumstances where the overriding consideration should have been the benefit that would accrue to the children in spending time with their father.
I raise these matters because ultimately I will need to consider whether there should be any change to the Consent Orders pursuant to Section 70NBA of the Act.
Accordingly, Counts 1 and 2 are dismissed.
Counts 3 and 4
The mother does not admit that she contravened the orders as complained of in Counts 3 and 4. Again, the mother is not asserting that she had a reasonable excuse for not providing the children to the father on 21 December 2012. She says that the father had attended one day too early.
The difficulty arises in the manner in which Order 16c (i) and (ii) have been drafted. In 16c (i) the last day of term is described in the order as “being day one of the holiday period”. In 16c (ii) the father’s time is to commence on the “eighth day of the holiday period”. Unlike the previous Subsection there is no reference to the last day of term being the first day of the holiday period. The mother therefore alleges that by her calculation the first actual day of the school holiday period is day one rather than the last day of the school term.
Again, I am not able to look behind the order. There may have been a good reason for a difference that the orders provide for in alternate years. The mother was adamant that by her calculation the father’s time with the children was to commence on 22 December 2012.
Unfortunately whilst there may have been a dispute between the parties as to the proper interpretation of the orders, the interaction between them was not civil. The father alleges that when he and Ms L attended at the mother’s home on 21 December 2012 she was not present. She arrived some 15 minutes later and the interaction between the parties was clearly aggressive. The father asserts that the mother was verbally abusive towards him and that she physically assaulted Ms L. The mother denies those allegations but she admits that the interaction between them was clearly aggressive and unpleasant. She alleges that the father was yelling and highly excitable. She asked the father to leave her premises and she alleges that he refused to do so. A friend of the mother came out of the house and the argument continued. Ms L then became involved and there was a verbal altercation between them. The mother admits that she pushed the father off her wall with a broom. It was at that point that the father called the police and they later attended. I am not able to find on the balance of probabilities that the mother was the perpetrator of the aggressive interaction between the parties. Of more relevance however was whether the children were at any time present and either witnessed or overheard the aggressive behaviour alleged by each of the parties against the other. It appears to be common ground that upon the mother returning home, the children were sent inside. It remains a possibility that the children could have observed the interaction between their parents from a front window. I do not consider that the evidence as presented is sufficient to support a finding in respect of either Count 3 or 4.
Whilst it will be a matter for the parties, consideration may need to be given as to whether Order 6c (i) or (ii) should be the subject of amendment.
Count 7
The father was to have the children pursuant to Order 4 of the Consent Orders on 1 February 2013. The mother withheld the children by attending at the children’s school at about 11am and removed the children. The father was not able to see the children. The mother admits the contravention but asserts that she had a reasonable excuse. There is some history leading up to the alleged contravention. The mother’s sister (the children’s maternal aunt) was to be married on Saturday 2 February 2013. This was a weekend when the children would ordinarily have been in the care of the father. The children had apparently indicated to their father that they would wish to attend the wedding and as a result the parties entered into discussions wherein if agreement had been reached, the children would have been with the mother and make-up time would have been provided to the father.
Unfortunately, the parties were not able to reach agreement. I am satisfied that the father entered into a genuine discussion with the mother with a view to reaching an appropriate compromise.
The background is perhaps best exemplified by reference to the text communication between the parties as comprised in Exhibit 1.
As early as 16 January 2013 the father responded to the mother with the following communication:-
Regarding [Ms N’s] wedding I would like to swap time so that the boys can be a part of it. How about we have the kids from the end of school Tuesday January 29 until the end of school January 31 and you can have them until the start of school Monday Feb 4 and that way you can have the week before to help [Ms N] with planning and the boys won’t be missing school and we will make up the extra night by having them until the end of school Friday February 8.
A further text was sent by the father on 19 January 2013 asking for a response from the mother. On 20 January 2013 the father apparently forwarded a copy of the earlier message. The mother responded on 25 and 26 January 2013 asking that the father return her calls regarding the attendance of the children at the sister’s wedding. It appears that the mother was seeking a verbal confirmation from the father via the telephone, whereas the father was keen to have something more tangible and was therefore seeking confirmation via text message. On 26 January 2013 the mother advises by text message that she has blocked the father’s text messages with the implication that the earlier communication had not been received. He again sent further messages in response to the mother’s communication in the morning of 26 January 2013. There were several messages that then passed between the parties and eventually the mother responded by raising an issue in respect of an earlier arrangement that the mother agreed to in order that the children attend the father’s sister’s wedding in circumstances where she did not require make up time. The final communication from the father makes it clear that in circumstances where there was no agreement then he would be insisting upon compliance with the orders.
The father’s response is also against the backdrop of abusive communication from the maternal grandmother.
I am left in no doubt that by 30 January 2013 the mother clearly understood the father’s position namely, that no agreement had been reached and accordingly the children would therefore miss the sister’s wedding and spend time with the father in compliance with the orders. The mother then took steps to prevent the children from coming into the care of the father.
It is not a matter as to whether the father was or was not reasonable or indeed whether the mother was seeking an accommodation for herself not dissimilar to which she purportedly provided to the father (notwithstanding that he does not agree with the mother’s version of the events). The mother admitted the contravention and I find that she has not established a reasonable excuse on the balance of probabilities.
Count 8
The children were to come into the father’s care pursuant to the order on 3 May 2013. The mother admits the contravention but asserts that she had a reasonable excuse namely, that the child K was recovering from a tonsillectomy and that J was reluctant to leave his brother in Adelaide and was highly resistive to spending time with the father pursuant to the order.
The circumstances of K’s operation was well understood between the parties although initially the father considered that but for the medical direction recommending that K remain within one hour of his paediatrician in case of complications, there was no reason that both children could not be cared for by him. Upon receiving the advice of the paediatrician the father accepted that K should remain in Adelaide but could see no reason why J should not spend time with him.
Again, these matters were the subject of text communication between the parties. A consideration of the text messages at 11.28am and 11.44am on 3 May 2013 make it clear that the father accepted that K should remain in Adelaide but that he would require J to attend in compliance with the orders.
Notwithstanding the mother’s initial refusal to allow J to attend, ultimately the mother invited the father to attend at the Suburb G Police Station to collect J. A dispute then arose between the parties as to whether the father should have attended at 3 o’clock or whether he should attend at 3.45pm. The father says that he did not commence his trip from Town D to Adelaide until the mother confirmed that J would be made available. The mother contends that the original agreement was for a 3pm handover. This issue assumed some significance in the cross examination of the mother by the father’s counsel. It was put to the mother that she attended 40 minutes early so that J could be spoken to by a police officer for the purpose of gauging the child’s purported distress and to note the alleged reluctance of the child to go with the father. It was an unfortunate feature of the interaction between the parties that the police have been involved and have had to intervene between the parties and speak to the children.
When the father arrived the child appeared reluctant to go with the father but he alleges that the mother refused to allow J to return with the father to Town D.
Ultimately under cross examination the mother admitted that she said to J that he didn’t have to go with the father if he didn’t want to, that she would stand by the child in respect of any decision he made and that she did not think he should go. I accept that if J expressed reluctance to go with the father it was predominantly because the mother did not support J spending time with his father and took steps to create an atmosphere of distress and anxiety in which the child was not able to make any reasoned decision. I find that on the balance of probabilities the mother has not established that she had a reasonable excuse in respect of this contravention.
Count 9
The children were to return to the care of the father at the conclusion of school on 17 May 2013. There had been some discussion between the father and a CAMHS case worker Ms O. She advised the father that the mother had been in contact with her and that J was worried that he would be in trouble for not spending time with the father during the previous fortnight (the circumstances discussed in respect of Count 8). There was then some discussion about where handover would take place and whilst Ms O had recommended a comfortable environment for J and K, the father alleges that the mother required the handover to take place at the Town D Police Station. Ultimately, the father received a phone call from a police officer confirming that the handover would take place in the parking lot attached to the Town D Police Station. Upon meeting, the father observed J to be upset and crying. A police officer took on the role as a facilitator of the handover and advised the father that J was unwilling to attend with him and was distressed. The father alleges that the mother actively held onto J and made audible remarks in front of the child as to the alleged aggressive demeanour of the father at the Suburb G Police Station two weeks earlier.
Whilst it is the father’s position that the mother was the incitement for the demonstrable distress and anxiety displayed by J, nonetheless the father accepts that the child was severely distressed. The father accepts that it would have been inappropriate to attempt to force the handover due to the child’s distress and accordingly, he left with K only. I am not able to make a clear finding in respect of the assertion of the father that the mother actively intervened in preventing J from going with him or at the very least made no steps to promote the handover, or the mother’s position which is that the child was so distressed for whatever reason that there would have been nothing she could have done in the circumstances.
It is not however controversial that J was demonstrably distressed, highly stressed and clearly resistive to going with his father on this occasion. The father accepts that it would have been inappropriate to force the child’s attendance and it is likely that even if the mother had displayed clear support for J’s attendance, that it would have had the desired effect.
Accordingly, I find on the balance of probabilities that the mother has demonstrated a reasonable excuse in respect of the child J not attending with his father on this occasion.
Count 10
The alleged contravention is that at the Town A Sports Stadium the respondent mother without reasonable excuse abused, harassed or denigrated the applicant father but more particularly assaulted the father by slamming a door on the father’s hand. The background to this count is that the children were in the care of the father but that on 22 May 2013 he took the children to their soccer game at Town A in the early evening. The father was uneasy about doing so because he was aware that the mother would be attending in order to give the children their uniforms. The mother took the children from the father and took them into the men’s toilet block but in particular into a disabled bathroom. The father feared that the mother would speak to J and attempt to further alienate the child from him and followed her into the bathroom. There was then an altercation between the parties. The parties yelled at each other and there appears to have been some pushing and shoving. During the course of the dispute the father alleges that the mother deliberately slammed the bathroom door onto his hand. It is this behaviour which the father considers to have been a contravention of paragraph 16 (b) of the Consent Order. The mother alleges that she took the children into the disabled toilet to change them into their soccer uniforms. She locked the door. She alleges the father banged on the door and upon her unlocking it there was then an altercation. Unfortunately the police were again called and each of the parties made allegations of assault against the other. I am uncertain as to the extent that the children observed or witnessed the altercation and in particular the manner in which the father purportedly sustained assault to his hand. Clearly, the circumstances on this occasion were unnecessary and either or both of the parties behaved poorly. On the balance of probabilities and as the evidence was presented I am not able to find that the mother has contravened the order and accordingly I dismiss Count 10.
Count 11
The father attended the children’s school on 31 May 2013 pursuant to the Consent Order. He had received an indication from the children’s support worker earlier that day that J was resistive to spending time with the father. The father attended at the school at 3pm, saw J and whilst he presented as initially reluctant, the father alleges that J was reassured that the father was not angry with him and that J would attend. At that point the mother arrived unexpectedly. She intervened in the process and J was torn between going with the father and staying with the mother. Ultimately J returned to his classroom and whilst the father was conferring with the deputy principal the mother left the school with the children. The mother alleges that she received a phone call from the school advising that J was distressed and did not want to go with the father. She says that rather than attempt to dissuade J attending with his father she told him that he must go. It later transpired that the mother requested the assistance of the principal and the counsellor to accompany her and the children to her car.
Under cross examination the mother gave evidence that she had been in contact with the school at 8.45am and 10am earlier that day. It was put to the mother that she had clearly set up a situation wherein the children would not wish to go with their father so that she could take the children to various medical and other appointments which had about them a focus of parenting issues as between the parties. Appointments had been made and they could not have been kept if the children were in the care of the father pursuant to the Consent Order.
Annexure NR2 of the father’s Affidavit of 3 September 2013 was put to the mother, but in particular in respect of a note of Ms O outlining a care plan for J prepared on 13 May 2013.
Ms O records as follows:-
Things for [the mother] to do:-
·It will be important that [J] does not witness the level of distress that you feel about him going to his fathers’. He needs your support and approval regarding his time with [the father], in order for this to happen.
·We discussed how important it is that when [J] is at school and due to go to [the father’s] that you refrain from going to the school on that day. It was identified that if you are present, then this puts [J] in the position of having to choose a parent. We acknowledge that [J] will chose you because he knows how upset and distressed you are and he does not want to be away from you when you are feeling this way.
The mother accepted that she had been a part of and had agreed to the tenor of the care plan. It is therefore difficult to consider that there is any other likely explanation for the unexpected and unnecessary attendance of the mother at the school on the relevant day unless it was to disrupt the handover arrangements not just for the sake of it but possibly to facilitate alternate plans for the children to have medical and psychological counselling and intervention.
Accordingly, I find on the balance of probabilities that Count 11 is proven.
Count 12
By text message dated 6 June 2013 at 10.40am, the mother advised the father as follows:-
Both [J] and [K] are in Adelaide attending appointments today and tomorrow requested by the doctor.
Upon receiving the text the father immediately requested further information about the attendance. He responded that the children should be at school and that he has not given any permission for the children to be taken to any appointment that he has not been advised about. The mother responded somewhat cryptically with the remark “my doctor”. The implication is that this was not her doing or at her instigation but rather she was responding to a concern expressed by the doctor. The father responded to the effect that he did not know the name of the doctor and that pursuant to the orders he had a right to the relevant medical information. Eventually the mother responded in the following terms:-
Dr [P] at [Suburb Q] has referred us to [Mr R], southern specialist for both [J] and [K]…[J] has been diagnosed with dyslexia.
I am in no doubt that the mother did not advise the father of the identity of the children’s general practitioner namely Dr P or that they had been referred by Dr P to Mr R, psychologist.
As a result of the attendance Mr R prepared a report dated 14 June 2013 which forms Annexure NR1 to the Affidavit of the father filed 3 September 2013. The report appears directed to an assessment of the child leading to a diagnosis of dyslexia. The initial referral was in respect of “concerns about reactive anxiety due to family split up”. There is no input from the father in circumstances where his observations of the child’s functioning, the previous assessments in respect of the child’s learning disabilities and the father’s own functioning may have been of some assistance. Whilst the report appears benign, I find that the mother well knew and understood her obligations pursuant to Order 3 (c) of the Consent Orders namely, that she had a positive obligation to consult with the father about all major long term issues affecting the children including their health. I do not confuse or colour my findings by the inter-relationship between the appointments with Dr P and Mr R occurring when the children should have been with their father (Count 11). Nonetheless, I consider that the mother was provided with ample opportunity to advise the father of the circumstances of the appointment with Dr P and perhaps more importantly, the identity and purpose for which J would be attending Mr R. I find on the balance of probabilities that the information in respect to the children attending upon Dr P and Mr R was information that should have been given to the father pursuant to Order 3 (c) of the Consent Orders and that the mother has failed to establish that she had a reasonable excuse for not doing so. Accordingly, Count 12 is proven.
Consideration of Subdivision E or Subdivision F of Division 13A of Part VII of the Act
Counsel for the father urged me to consider that the contraventions should be dealt with under Subdivision F namely as a “more serious contraventions” as opposed to under Subdivision E which is reserved for “less serious contraventions”.
As far as I am aware there have been no previous contravention proceedings. Accordingly, this is the first occasion whether the mother has been found to have contravened an order without reasonable excuse. Section 70NFA (2) therefore does not apply.
The application of Section 70NFA (2) is reserved for circumstances where I am satisfied that the mother has “behaved in a way that shows a serious disregard for his or her obligations under the primary order”. There does remain a discretion to apply the provisions of Subdivision E if it would be appropriate to do so (Section 70NFA (4)). Section 70NFA (2) (b) provides:-
The Court dealing with a current contravention is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligations under the primary order.
There is little assistance as to how this section might be applied.
The thrust of the Full Court in Elsbeth & Peter; Mark & Peter; andJohn & Peter [2007] FamCA 655 is to have regard to the circumstances of the case and in particular where the court finds cases of “deliberate, pre-mediated non-compliance with the orders; and continued and protracted breach”.
There needs to be a “persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carry out an order”.
In the decision of Gravis & Major [2010] FamCAFC 239 the Full Court sighting Finn J in Clintock & Levier [2009] FamLR 245 at 258 did not consider it appropriate to apply a global approach to the contraventions in terms of attempting to show the requisite “serious disregard”. It is therefore not appropriate to stand back from the matter and consider the overall effect or consequences that have flowed from a cumulative view of the proven contraventions. Each contravention must be considered individually.
The evidence in respect of Count 7 and Count 12 is not sufficient to establish that the mother held “a serious disregard” in respect to the orders contravened. I am however of the view that the evidence in respect of Count 8 and Count 11 demonstrates deliberate behaviour by the mother designed to interfere with the father’s time and in circumstances which caused the child J to be highly anxious and seriously distressed. In respect of Count 11 the child was placed in the invidious position of having to choose to go with the father or to stay with the mother. I consider that the mother’s behaviour evinces a “serious disregard” in respect of these two counts.
Counsel for the father seeks that following a finding that the mother has behaved in a way that shows a “serious disregard” of his or her obligations under the primary order, the father seeks the imposition of a bond under Section 70NFE of the Act. A parenting order that would see the father compensated for the time that he did not spend with the child is not sought. The father does not seek community service, a fine or any sentence of imprisonment.
There are a number of options in respect of a bond to be imposed pursuant to Section NFE and taking into account that the evidence and submissions were concluded with the mother being unrepresented it may well be the case that she would wish to make further representations in respect to whether a bond should be imposed and if so, the terms and conditions of same. A further matter is in respect of the question of costs and the extent to which if any, the mother should be required to pay the father’s costs of the contravention proceedings.
Accordingly, further submissions will be received on 13th day of February 2014 at 2.15pm as to the extent (if any) of the penalty that should be imposed, whether the mother understands and is prepared to enter into a bond if I so find and the extent of any order for costs that should be made.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 22 January 2014.
Associate:
Date: 22 January 2014.
Key Legal Topics
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Commercial Law
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Civil Procedure
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Penalty
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