Roth & Roth
[2025] FedCFamC2F 452
•10 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Roth & Roth [2025] FedCFamC2F 452
File number(s): PAC 5442 of 2017 Judgment of: JUDGE BECKHOUSE Date of judgment: 10 April 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Obligation on parties under Court’s Family Violence Best Practice Principles to ensure appropriate safety arrangements.
FAMILY LAW – CONTRAVENTION – Whether the father intentionally failed to comply with the Order – Where Orders made in father’s absence – Whether the father understood obligations imposed upon him – Held that the mother failed to demonstrate the father had sufficient knowledge of the Orders – Father did not understand obligations at time of Counts 1 to 4, but did understand obligations at time of Count 6.
FAMILY LAW – CONTRAVENTION – Whether the father approached the mother in contravention of Orders by delivering letter to her home – Count proved – Reasonable excuse not established – Adjourned for penalty.
Legislation: Family Law Act 1975 (Cth) ss 70NAC, 70NAF, 70NAE(2), 70NDA
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) r 2.40(1)
Cases cited: Bradbury & Lander [2019] FamCA 22
Hatfield & Rivas [2024] FedCFamC1A 202
Ongal & Materns (2015) FLC 93-645
Roth & Roth [2019] FCCA 2071
Family Violence Best Practice Principles (5th edition, 2009)
Division: Division 2 Family Law Number of paragraphs: 101 Date of hearing: 9 December 2024 Place: Sydney Counsel for the Applicant: Mr Havenstein Solicitor for the Applicant: Caldwell Martin Cox Counsel for the Respondent: Ms Bateman Solicitor for the Respondent: Vaikom Law ORDERS
PAC 5442 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ROTH
Applicant
AND: MR ROTH
Respondent
ORDER MADE BY:
JUDGE BECKHOUSE
DATE OF ORDER:
10 APRIL 2025
THE COURT FINDS THAT:
1.The Father in January 2024 contravened Order 5(a) of the Final Orders made on 19 August 2019 by Judge Obradovic without reasonable excuse.
THE COURT ORDERS THAT:
2.Counts numbered 1 – 4 of the mother’s Amended Contravention Application filed on 28 February 2024 are dismissed.
3.The matter is adjourned for hearing in respect of the question of penalty on Count 6 to a date and time to be advised.
4.The issue of costs is reserved.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
This case is about whether the father, Mr Roth (“the father”) contravened Final Orders made on 19 August 2019 by Judge Obradovic (“the Final Orders”).
On 12 June 2024, the Court delivered a judgment in relation to the father’s application for ‘No Case to Answer’ made at the conclusion of submissions in support of the mother’s Amended Contravention Application filed on 28 February 2024 (“the Contravention Application”).
Orders were made on 12 June 2024 dismissing Count 5. The hearing in relation to the remaining breaches, Counts 1, 2, 3, 4 and 6, proceeded before me for hearing on 9 December 2024 (“the Trial”).
The father denies the alleged contraventions. In the event that the Court finds that he has contravened the Orders on any of the Counts, he argues that he had reasonable excuse to do so.
This judgment sets out the reasons for my decision.
BACKGROUND
These contravention proceedings are brought in relation to parenting orders for two children, X, born in 2006 (“X”), who is now 18 years of age; and Y, born in 2012 (“Y”) who is 12 years old (collectively referred to as “the children”). X was 17 years old at the time of the alleged breaches.
The mother was born in 1974 and is currently 50 years of age. She lives in Suburb B with X, Y and her husband Mr C.
The father was born in 1970 and is currently 54 years of age. He has re-partnered and had a child with Ms D (“Ms D”). She attended the Trial but under cross-examination the father said their relationship had come to an end. He lives in Suburb B, in the former matrimonial home.
The parties commenced cohabitation in late 1999 and separated for the final time in May 2017.
In mid-2017, the father was named as the defendant in an Apprehended Domestic Violence Order (“ADVO”) issued for the protection of the mother and the children (“the first ADVO”). The first ADVO expired in mid-2018.
On 11 September 2018, a final hearing proceeded before Judge Obradovic in the Federal Circuit Court of Australia in Parramatta. Final orders were made (“the first Orders”) and reasons for doing so given (see Roth & Roth [2019] FCCA 2071). The mother was represented. The father appeared in person.
In late 2018, an ADVO was made against the father naming the mother as the protected person for a period of two years expiring in late 2020 (“the mother’s ADVO”).
In February 2019, the mother commenced proceedings alleging that the father had committed multiple breaches of the first Orders which led her to suspend his time with the children. Then on 11 April 2019, the mother filed an Amended Initiating Application (“the variation proceedings”).
The father was placed into custody in early 2019 and remained incarcerated until his release in late 2019.
The variation proceedings were heard by Judge Obradovic on an undefended basis on 19 August 2019. Judge Obradovic discharged the first Orders finding that the children were at unacceptable risk of harm if they continued to spend time with the father. She made the following Final Orders:
…
(2)The mother shall have sole parental responsibility for the children [X] born [in] 2006 and [Y] born [in] 2012.
(3) The children shall live with the mother.
(4) The children shall spend no time with the father.
(5) Pursuant to s.68B of the Family Law Act 1975 the father is restrained by injunction from:
(a) Approaching the mother or the children in any way;
(b) Intimidating, harassing or verbally abusing the mother; and
(c) Denigrating the mother and the maternal family to the children or in front of the children or permitting or allowing any third party from doing so.
(6) The father is to pay the mother’s costs in the amount of $12,770.50 within 28 days.
…
By 2020 the father was in a relationship with Ms D. The mother was in a relationship with Mr C (“Mr C”). The mother and Mr C married in 2020. She, X and Y moved in with Mr C and his then 14-year-old son, E. They remain living together at F Street, Suburb B.
In mid-2020, an ADVO was made to protect Mr C and E from the father for a period of two years (“the Mr C ADVO”). Notably, it prohibited the father from going within 100 metres of:
(a)any place where Mr C or E live; or
(b)any place where they work; or
(c)their home at F Street, Suburb B.
A further ADVO was made in late 2022 for a period of two years which expired in late 2024. This ADVO protects the mother (and anyone she has a domestic relationship with) from the father and specifically prohibits him from:
(a)assaulting or threatening her;
(b)stalking, harassing or intimidating her; and
(c)intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in her possession.
On 21 December 2022, the mother commenced contravention proceedings by filing a Contravention Application. It was served on the father on 24 January 2023.
In early 2023, the father was placed into custody and remained there until his release in mid-2023.
On 2 June 2023, the father caused the mother to be paid $12,770.50 in accordance with the cost order made in the Final Orders.
On 28 February 2024, the Amended Contravention Application was filed and the matter set down for final hearing.
PROCEDURAL HISTORY
Throughout both stages of the hearing, both parties were represented by counsel.
The mother sets out her contentions in a Case Outline document filed on 4 December 2024. There she identifies her reliance upon the following documents:
·Amended Contravention Application filed on 28 February 2024
·Affidavit of Ms Roth sworn and filed on 28 February 2024
The father’s contentions are contained in a Case Outline document filed on the morning of the hearing. There he sets out his reliance upon his affidavit of 13 August 2024.
Counsel tendered into evidence documents which I have also had regard to.
Counsel for the father made numerous objections to the contents of the affidavit filed on behalf of the mother. These objections were determined on the first day of the hearing and rulings were made on admissibility at that time. The father elected not to cross-examine the mother.
The cross-examination of the father began, but within ten minutes, he stated that he suffered from iron deficiency and lethargy, which he claimed affected his ability to remember dates, despite his recollection of events. The matter was briefly stood down and upon resumption, counsel for the father communicated her client's instruction to proceed. Notably, following this adjournment, I observed no indication that the father was tired or in any way hindered from fully participating in the court proceedings.
The father provided non-responsive answers to many questions posed to him and often used cross-examination as a vehicle to express his hostile views to the mother and Mr C (who were initially seated in the courtroom). For example:
[FATHER]: I’ve got nothing to lie about. That’s a liar there. You’re representing a liar, destroyed my kids, and you sit there and represent those two … Disgusting … You should be in jail …
HER HONOUR: I’m just going to stop. I’m just going to stop.
[FATHER]: You should be in jail for what you did to my kids.
HER HONOUR: I’m just going to stop. [Mr Roth] ‑ ‑ ‑?‑‑‑I’m sorry. ‑ ‑ ‑ if I get another outburst like that again ‑ ‑ I will ask security to take you out of the court? …
The outburst that I just heard from you is absolutely not acceptable. Do you understand me, sir?
(Transcript 9 December 2024, p.21 lines 4-34)
He was asked on three occasions (including as set out above) to answer only the questions asked of him. Security was instructed to remove him from the courtroom at around 12.20 pm after the following exchange:
[COUNSEL FOR THE MOTHER]: ‑ ‑ ‑ tell her Honour what the charge was?
[FATHER]: Being married to some evil thing that’s not worth living.
[COUNSEL FOR THE MOTHER]: And, sir, while you say those things, you’re staring at my client and sitting behind ‑ ‑ ‑?
[FATHER]: Yes, she’s playing the victim. Got the security there.
[COUNSEL FOR THE MOTHER]: And you’re still ‑ ‑ ‑?
[FATHER]: We’re sick of the victim – seven years. They’ve walked past my house yelling at me, filming me, chasing me […] ‑ ‑ ‑
HER HONOUR: All right. Okay. All right. We’re just going to stop.
[FATHER]: There’s no victim. There’s nothing wrong with you.
HER HONOUR: We’re just going to stop there.
[FATHER]: You’re evil. Both of you are evil.
HER HONOUR: I’m just going to ask for him to be removed ‑ ‑ ‑
[FATHER]: Yes, I’m done.
(Transcript 9 December 2024, p.32 line 31 to p.33 line 3)
Subsequently, arrangements were made for the mother to observe the proceedings electronically from another room. Upon the resumption of proceedings without her physical presence, the father continued to have difficulty moderating his behaviour and aggression towards the mother. This included threats such as this exchange:
[COUNSEL FOR THE MOTHER]: So how many times – when you say heaps of breaches of the AVOs ‑ ‑ ‑?
[FATHER]: The kid used to love me. You should see them now. They’re sad – no, you don’t care about them. I know tomorrow you won’t even remember [Ms Roth]’s name. You know what? My kids have been suffering for all this time. I don’t know how she’s not in jail or with a bullet in her head … What she has done to my kids. She’s destroyed them, absolutely destroyed them.
(Transcript 9 December 2024, p.68 lines 15-22)
Even after the mother was secured in another room, during his cross-examination the father continued to direct comments towards her for example: “You hear that [Ms Roth]?”, “Dog”, “Destroyed my life”.
It became apparent that no safety planning had been undertaken for the mother's protection prior to the hearing. Furthermore, the mother's legal representatives failed to raise the mother’s reasonable safety concerns in advance. This omission is troubling, given the potential psychological distress caused by the mother's proximity to the father and his abusive conduct towards her.
Pursuant to the Court's Family Violence Best Practice Principles (5th edition, 2009), parties or their legal representatives are required to notify the Court at least five days prior to any scheduled event to ensure appropriate safety arrangements.
The lack of pre-hearing planning necessitated the unanticipated deployment of two security officers to the courtroom for the duration of the proceedings. This resulted in the diversion of limited security resources and potentially compromised the safety and procedural expectations of other court users.
ALLEGED CONTRAVENTIONS
The alleged contraventions need to be detailed in full.
Contravention 1
The mother alleges that the father contravened Order 5(a) of the Final Orders on 25 July 2022 at 3.00 pm when he approached and spoke to both children at F Street, Suburb B, as they walked from their school bus.
Contravention 2
The mother alleges that the father contravened Order 5(a) of the Final Orders by approaching X on 30 September 2022 at 8.45 pm at his place of work.
Contravention 3
The mother alleges that the father contravened Order 5(a) of the Final Orders when, on 21 October 2022 at 2.45 pm, he entered the grounds of G School and approached the children as they were getting on the school bus to go home.
Contravention 4
The mother alleges that the father contravened Order 5(a) of the Final Orders when, on 22 October 2022 “at or between” 10.00 am and 4.00 pm, he approached X at his place of employment.
Contravention 6
The mother alleges that the father contravened Order 5(a) of the Final Orders when at 2.10 pm on 11 January 2024, the father drove to the mother’s residence at F Street, Suburb B, parked at the front of the property and placed a letter in the mother’s letterbox.
THE FINAL ORDER BREACHED
All of the alleged contraventions arise from Order 5(a) which expresses that:
(5) Pursuant to s.68B of the Family Law Act 1975 the father is restrained by injunction from:
(a) Approaching the mother or the children in any way;
JURISDICTION
The applicable law in respect of failure to comply with orders that affect children is contained in Div 13A of Pt VII of the Family Law Act 1975 (Cth) (“the Act”). The purpose of Div 13A is to ensure compliance with parenting orders made by the Court.
The mother’s Amended Contravention Application was filed on 28 February 2024, prior to the amendments made to the Act which came into effect on 6 May 2024.
The question of what legislative provisions apply to these proceedings was recently settled by the Court in the decision of Hatfield & Rivas [2024] FedCFamC1A 202.
In this case, the old legislative provisions as they were prior to 6 May 2024 will apply to the historic contraventions alleged by the mother.
LEGAL PRINCIPLES
Section 70NAC of the Act sets out what must be established to satisfy a Court that a contravention has taken place:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order – he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise – he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
The mother relies on both of the limbs of s 70NAC in arguing that the father has both intentionally failed to comply with the Order and made no reasonable attempt to comply with the Order. The mother further contends that the father has not established a reasonable excuse for the contravention.
Section 70NAF of the Act sets out the requisite standard of proof to be applied in contravention proceedings. The standard of proof in determining whether a person has a reasonable excuse for contravening an order is on the balance of probabilities. As stated by the Full Court in the matter of Ongal & Materns (2015) FLC 93-645 at [26]:
Section 70NAF provides that the standard of proof to be applied (including on the question of whether there is a reasonable excuse) is ‘proof on the balance of probabilities’, except when certain harsher penalties are to be imposed, in which case the Court must be satisfied ‘beyond a reasonable doubt that the grounds for making the order exist’. The harsher penalties are available for ‘more serious’ contraventions. However, the court however retains a discretion to deal with such contraventions as ‘less serious’ if it is satisfied that course is ‘more appropriate’.
It has been noted that the father possesses a criminal record, resulting in periods of incarceration. Notwithstanding that this represents the mother's first application for contravention to proceed to a hearing, I am unable to disregard the possibility that, should one or more of the alleged contraventions be substantiated, they may be treated as more serious breaches, as envisaged by subdivision F of Div 13A of Pt VII of the Act. Consequently, more stringent sanctions, such as a custodial sentence, may fall for consideration. It is noted that the mother, in her Case Outline document, argues that the Court should treat any contravention as a serious one and consider the imposition of a term of imprisonment.
Because the it is submitted that any contravention proved should be treated as a more serious breach, pursuant to s 70NAF the mother carries the evidentiary onus of satisfying the Court “beyond reasonable doubt that the grounds for making the order exist”.
It was agreed that the findings made in relation to the father’s defence fell into two categories. Firstly, in accordance with s 70NAC(a) I must be satisfied that the father intentionally failed to comply with the Order or made no reasonable attempt to comply with the Order.
If I am satisfied of this, the father relies upon a defence of reasonable excuse as defined in s 70NAE of the Act and I move on to consider that defence. As was observed by Gill J in Bradbury & Lander [2019] FamCA 22 at [61]:
The precursor is a finding that the party did not understand the obligations under the Orders … It is an onus to show not only a lack of understanding of the obligations but that the breach was caused by that lack of understanding.
The father carries the onus of establishing, only to the balance of probabilities, that he had a reasonable excuse for the contravention.
All findings in these Reasons are therefore made to those standards.
ASSESSMENT OF DEFENCE
In relation to Counts 1 to 4, the father’s defence is that the Court cannot be satisfied that he intentionally failed to comply with the Final Orders on 25 July 2022 (Count 1), 30 September 2022 (Count 2), 21 October 2022 (Count 3) and 22 October 2022 (Count 4) because:
(a)The Final Orders were made in his absence, and on an undefended basis (an agreed fact);
(b)He was incarcerated when the Court made the Final Orders on 19 August 2019 (an agreed fact);
(c)He did not receive the Final Orders until some date after 21 December 2022 (this is not an agreed fact);
(d)At no time until some date after 21 December 2022:
(i)had he received the Final Orders;
(ii)had he read the Final Orders;
(iii)had the Final Orders been explained to him;
(iv)did he know of the obligations imposed upon him by the Final Orders; and
(v)did he understand the obligations imposed upon him by the Final Orders.
COUNTS 1 – 4
Had the father sufficient knowledge of the Final Orders?
The father chose not to participate in the 2019 proceedings. There the judge observed (see Roth & Roth [2019] FCCA 2071 at [14]) that he had not participated in the proceedings despite being given the opportunity of doing so.
The mother tendered a letter ostensibly sent by her legal representatives (by registered post) to the father in H Correctional Centre dated 20 September 2019. That letter purports to attach a copy of Judge Obradovic’s judgment and a copy of the sealed Final Orders. The mother relies upon the records produced by the NSW Department of Corrective Services to prove that at the time the letter was sent to the father, he was incarcerated in H Correctional Centre.
The mother also relies upon the following matters as evidencing his knowledge of the Final Orders at the time of the alleged Counts 1 to 4:
(a)A hand-written note purportedly written by the father to the mother and dated 16 December 2019 was tendered. In it the author referred to a legal bill of $15,000. This, it is submitted, is consistent with him having received the Final Orders as Order 6 of the Final Orders required him to pay the mother’s costs of $12,770.50 within 28 days (“the cost order”).
(b)The father admitted that he had written the note but had not dated it. He also accepted that he had delivered it to the office of Caldwell Martin Cox (the mother’s solicitor). He could not remember the date he attended there.
(c)The father offered that he had paid the ‘costs’ however when pressed by counsel for the mother, he did not accept that he was referring to the costs ordered pursuant to Order 6 of the Final Orders. It appears to be an agreed fact that the cost order was not paid by the father until 2 June 2023.
(d)In his oral evidence, the father conceded that in 2019 someone could have read the Final Orders to him. He offered:
[COUNSEL FOR THE MOTHER]: Sir, I’m putting to you that between the orders being made in August 2019 and you delivering that handwritten note
[FATHER]:‑ ‑ ‑?‑‑‑All right.‑ ‑ ‑ in ‑ ‑ ‑?‑‑‑I know where you’re going with it.
[COUNSEL FOR THE MOTHER]: ‑ ‑ ‑ to my instructing solicitors, you were aware of the orders that had been made by Judge Obradovic in August 2019? … Do you agree with that?
[FATHER]: I must have, if I wrote the letter.
[COUNSEL FOR THE MOTHER]: Yes. And just to be clear, you said, “I must have if I had written the letter”?
[FATHER]: ‑‑‑Yes, absolutely. Yes.
[COUNSEL FOR THE MOTHER]: Okay?‑‑‑
[FATHER]: Don’t know how I obtained the information, but obviously I have.
(Transcript 9 December 2024, p.49 lines 33-46)
(e)On 30 September 2022 (during the Count 2 incident) the mother deposes that the father said to X words to the effect of “I am going to court to get you back and you are old enough to make your own decisions now”.
(f)The mother also directs me to text messages exchanged between her and the father on 1 October 2022 and 4 October 2022 (after the Count 2 incident). In both messages the mother asked the father not to again approach X at his workplace. Contained in the father’s response is the reply: “You can stick you [sic] family court orders where they fit”.
(g)The mother also tendered a letter written by the father and delivered to her on 11 January 2024. In that letter he makes the following admissions about his knowledge of the Final Orders:
(i)He reflected at the time of the letter: “I am now in a position where I am supported and could return to court and apply for a variation of the 2019 Consent orders, so I can resume time with my children”.
(ii)He acknowledged receiving a text message from the mother on 1 October 2022 “stating that she has told […] about the federal court order and that I wasn’t allowed to be in contact with [X]”.
(iii)Later in his letter he refers to a meeting with X at least 12 months later (presumably in late 2023) and a discussion that took place about returning to the “Family courts” so that X could “have new orders put into place so He [sic] can see me without fear for my or his safety”. This and the rest of the contents of the letter are not pertinent to Counts 1 to 4 as they refer to events outside of the dates of the alleged contraventions.
(h)The mother also argued that the father had to have sufficient knowledge of the obligations imposed by the Final Orders, contending that the injunction under which this contravention arises, was contained in the first Orders in the same terms. She argues that the Court can assume that even if the father was unaware of the exact terms and obligations of the Final Orders, he was acting in contravention of the Final Orders because both sets of orders contained mirror restraints, that is:
Pursuant to s.68B of the Family Law Act 1975 the father is restrained by injunction from:
(a) Approaching the mother or the children in any way;
Conclusions
The onus was on the mother to satisfy me that the father received the Final Orders or had sufficient knowledge of them and thereafter made no reasonable attempt to comply with them.
I am not satisfied that the Final Orders were received by the father when he was in custody. No Affidavit of Service was filed, nor was there any other evidence before me that addressed this issue directly.
Rule 2.40(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) (“the Rules”) provides that ordinary service can be effected by sending a document to the person’s address for service. There was no evidence that the Final Orders had been sent to his address for service on the court system, being J Street, Suburb B.
It is contended that they were sent to the father at H Correctional Centre (and he conceded he was there at that time and that the letter had referred to his MIN number accurately). But there was no concession made by the father that he had received the Final Orders while at H Correctional Centre.
I am asked to draw the inference that he must have received the Final Orders or had them explained to him by around his release from custody in late 2019.
In his oral evidence the father conceded that in 2019 someone could have read the Final Orders to him. I am not satisfied that this evidence alone allows me to conclude to the requisite standard that the father had sufficient knowledge of the precise terms of the Final Orders. The father was cross-examined at length. As I have previously remarked, he gave his evidence in a hostile and belligerent manner. He took every opportunity to provide his own commentary in answering questions. He demonstrated a limited capacity to exercise restraint or follow directions of the Court or counsel. He also demonstrated limited insight. I am confident that what fell from his mouth was generally his honest perception of the events that were the subject of the charges. But notably, none of his evidence left me satisfied that he had knowledge of the restraint placed upon him under Order 5(a) at the time of the alleged Counts 1 to 4.
I am asked to draw this inference from the father’s handwritten note, on which in a different handwriting it is marked “received 16/12/19”. I cannot conclude to the required standard that the handwritten note establishes that he had received the Final Orders by 16 December 2019 because:
(a)Such a finding requires me to accept that the letter was dated correctly. When the handwritten note was tendered, I indicated that the Court would determine what weight could be placed on it in circumstances where the father’s evidence about the timeframe of the note and his attendance on his solicitor was not entirely clear. It bears repeating that the mother did not file an affidavit by her legal representative or an employee of the firm. That would have assisted, but in the circumstances before me I can only place limited weight on the handwritten note.
(b)The note only refers to a “legal bill of $15,000+” in the context of child support payments. The cost order in any event was for $12,770.50. He could just as well have been referring to legal bills associated with his criminal law matters.
The mother then argues that the father’s own conduct and admissions after his release in 2019 demonstrates that he possessed sufficient knowledge of the Order.
I make the following reflections about the other “admissions” allegedly made by the father:
(a)Whilst the father’s communication with the mother by SMS on 1 and 4 October 2022 demonstrates a complete disregard for any obligations arising under the Final Orders, it cannot be said to the requisite standard that he had sufficient knowledge of the Final Orders and particularly the Order from which the alleged contravention arises.
(b)As for the matters contained in the father’s letter of 11 January 2024, whilst they demonstrate an understanding that he could approach the Court to have the Orders varied, they do not on their own satisfy me that he had sufficient knowledge of the Final Orders and particularly the Order from which the alleged contravention arises. The letter was written after these contravention proceedings had been commenced, and he had, on his own admission, received the Final Orders by then.
On the basis of these considerations, I am left to have some reasonable doubts as to the father’s awareness and knowledge of the Final Orders.
In the event that I am wrong (and assuming that the elements of each count are made out) I have considered whether the father has established a reasonable excuse for failing to comply with the Order on the balance of probabilities.
Relevantly, s 70NAE(2) provides:
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 to be excused in respect of the contravention.
That is, a lack of understanding that the conduct constitutes a breach is a consideration in determining whether there is a reasonable excuse for a contravention, rather than in determining whether there has been a contravention.
The father dealt with this lack of understanding by arguing that he did not know or understand that he was subject to any court order restraining him from approaching the mother. Accordingly, it is submitted that he could not have formed the intention to contravene the Orders.
He deposes that on 15 January 2024, his former lawyers ceased representing him. Then on or about 27 May 2024, he engaged his current lawyers to represent him. He deposes that it was not until the “early afternoon of 3 June 2024, my Solicitor, Lisa Swadling of Vaikom Law, explained to me that I was subject to the Order. This is my first distinct memory of becoming aware of the Order and my obligations pursuant to the Order”.
It was argued that the father’s evidence is made at least plausible because over this period of time there were protection orders restricting his movements. For example:
(a)In late 2018, an ADVO was made against the father naming the mother as the protected person for a period of two years expiring in late 2020. The mother makes no allegations of the father approaching her over this period of time.
(b)In mid-2020, the Mr C ADVO was made for two years which prohibited the father from going within 100 metres of the children’s home at F Street, Suburb B.
(c)In late 2022, the ADVO which protected the mother and the children (by virtue of the wording “anyone she has a domestic relationship with”) for a period of two years from:
(i)assaulting or threatening her;
(ii)stalking, harassing or intimidating her; and
(iii)intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in her possession.
(d)His evidence was along the lines that by Count 1 on 25 July 2022 he thought that he could approach his children because “The AVO is now finished”. That statement, repeated in his cross-examination seemed to highlight the ambiguity around his understanding of his obligations under the Final Orders.
(e)Accordingly, in relation to Counts 1 to 4, even if I were to find that the father had knowledge of the Final Orders, I am satisfied on the balance of probabilities that he has established a lack of understanding of them and therefore makes out a reasonable excuse.
COUNT 6: 11 JANUARY 2024
Count 6 falls somewhat outside the considerations made for Counts 1 to 4 because by the date of the alleged contravention, the mother had commenced these proceedings by filing a Contravention Application which was served on the father on 24 January 2023.
The father accepts that he was served with the Application. An Affidavit of Service was filed on 23 March 2023. On 22 June 2023 his then legal representative filed a Notice of Address for service. They appeared on the father’s behalf at the Court events on 28 June 2023 and 13 September 2023. They were on the record when the mother filed a further Contravention Application on 17 October 2023 and, then appeared on his behalf when the matter was listed for hearing.
The father contends that his former lawyers ceased representing him in January 2024 and it wasn’t until he engaged his current lawyers that he became aware of his obligations pursuant to the Final Orders. However, in the course of the hearing he made admissions that he was aware of the Final Orders and most likely their contents from at least when he was incarcerated in early 2023.
A letter from the mother’s lawyers to the father’s lawyers dated 1 August 2023 was tendered. In that letter his lawyers say:
I note your client is concerned about [Mr Roth] approaching the children after his parole expires in 2023. He is well aware that the final orders prevent him from approaching your client or the children in any way and he has no intention of breaching the orders or facing any other further penalty in this regard.
When asked about this letter under cross-examination he conceded that:
(a)His legal representatives sent letters on his instructions.
(b)He spoke to his legal representative during the period of his incarceration in 2023.
(c)He couldn’t recall if the letter of 1 August 2023 was written on his instructions, but he admitted that it was likely that it was and that his lawyer read it to him.
(d)That from at least August 2023 he was aware of the Final Orders.
I am satisfied beyond reasonable doubt that the father was aware of the Final Orders and specifically Order 5(a) before the date of Count 6.
Has the mother established the requisite elements of the charges as alleged in Count 6?
The mother contends that Order 5(a) was contravened when the father delivered to her letterbox a typed letter addressed to her. She relies upon CCTV footage taken of the father placing the letter in her letterbox.
The father contended in his affidavit that he was “at my home at [J Street, Suburb B] in the State of New South Wales at 2:10pm on 11 January 2024”. He offered no evidence to support his contention, and it was not a submission made by closing submissions.
The mother annexed to her affidavit six still shots she took from the CCTV footage. The CCTV footage was also tendered. They are dated and time stamped. The father did not challenge her evidence.
When pressed in cross-examination the following admissions were made by the father:
(a)He prepared the letter with his partner Ms D, although she typed it and addressed it.
(b)He attended at the mother’s house to deliver the letter.
(c)He was filmed on CCTV cameras doing so.
The father again argues that his conduct did not constitute a breach of the Orders because it cannot be said that he approached the mother. He argued that the Order restrains him from approaching the mother, not her residence, her CCTV camera and/or the letterbox at her residence.
On this he argues that the Order is ambiguous and there is a common law presumption that I apply “the ordinary rules of construction”, favouring his interpretation.
The mother argues that there is no ambiguity. Order 5(a) restrained the father from approaching her or the children in any way and the Court ought to find that she was approached by the father because:
(a)The letter was addressed to “[Ms Roth]”.
(b)The letter was signed by “[Mr Roth] and [Ms D]”.
(c)The father admitted that he attended the mother’s home to deliver the letter.
(d)The envelope was addressed in handwriting to “[Ms Roth] and [Mr C]” with the additional words “more to follow…”.
(e)The CCTV footage clearly shows the father approaching the house, standing in the direction of the CCTV cameras and pointing at the letter and then having posted it, returning and again standing in the direction of the CCTV cameras before putting his arms in the air in some sort of celebratory manner.
Order 5(a) restrained the father from “[a]pproaching the mother or the children in any way”. It is a broad order and the use of the words “in any way” allow a full range of approaches to be considered including attending at her home in person, writing her a letter or communicating via a video platform (such as CCTV).
The father’s acts need to be viewed together, that is, writing a letter to the mother and her husband, addressing it personally to the mother on the envelope, attending at her home and personally delivering it to her letterbox. His action of waving at the CCTV camera when he attended at the mother’s home satisfy me beyond reasonable doubt that he deliberately intended to approach the mother. In my view, to find a breach of the Order does not require a contemporaneous event such as it being proved that the mother was at the home when he attended there. He personally entered the grounds of her property, he was aware that he was being filmed and he knowingly approached the camera and then delivered the letter. Accordingly, I am satisfied that his conduct on 11 January 2024 was in breach of Order 5(a).
Has the father established a reasonable excuse for failing to comply with the Order as alleged in Count 6?
The father dealt with this alleged lack of understanding of the Order by arguing that he did not know or understand that his behaviour was in contravention of the Order which restrained him from approaching the mother in any way. Therefore, he says that he could not have formed the intention to contravene the Orders.
As previously set out, he deposes that on 15 January 2024, his former lawyers ceased representing him and that it wasn’t until 27 May 2024 that he engaged his current lawyers to represent him. I am sceptical about this argument in circumstances where contravention proceedings had already been commenced. By then he ought to have known or checked with his legal representative as to whether, in her view, he was permitted under the Orders to attend the mother’s home in the manner in which he did.
In any event, the father carries the onus of establishing, only to the balance of probabilities, that he had not received this advice. He did not for example ask the Court to issue a subpoena of the file notes from his former lawyers. It was his excuse to prove.
Accordingly, I find that the father has failed to establish that he had a reasonable excuse for failing to comply with the Final Order as contemplated by s 70NDA of the Act.
HOW SHOULD THE CONTRAVENTION BE TREATED?
Division 13A differentiates between, on the one hand, less serious contraventions (dealt with in subdivision E) and more serious contraventions (dealt with in subdivision F).
The powers of the Court to punish or impose a sanction for contravention differ depending upon whether the contravention is a less or more serious one. As I have already noted, one of the penalties sought by the mother is the imposition of a custodial sentence, only available if there is a finding of a more serious contravention as referred to in subdivision F.
Whilst I have observed that it remains open to me to treat this as a more serious contravention as referred to in subdivision F, I am conscious that I have not heard submissions on the issue. I will therefore stand the matter over for penalty, and at that time will hear from the parties on this issue.
Without expressing any concluded view as to what orders are appropriate in the circumstances, I note that the powers of the Court are very extensive. As there are serious consequences for the father that arise from my finding that he has contravened the Final Orders, I will relist the matter to provide the parties with the opportunity of addressing me specifically on the issue of potential penalty.
Finally, I note that I also have the power to vary the Final Orders. Whilst I didn’t find that Order 5(a) had any ambiguity, given the history of the matter and the father’s belligerent conduct, I am minded to vary it to prevent future arguments about the scope of the injunction. Y is 12 years old and, in my view, should be protected to the full extent possible by orders that make clear that the father is not at liberty to approach her at any location whatsoever, nor her mother.
My understanding is that the most recent ADVO which protected the mother (and the children while they live with her) expired in late 2024. I would like to be addressed on this matter when it comes back before me in the context of considering an appropriate variation to Order 5(a).
I make the Orders as set out at the commencement of these Reasons for Judgment and adjourn the matter for hearing on sentence and any variation to the orders sought.
I certify that the preceding one hundred and one (101) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Beckhouse. Associate:
Dated: 10 April 2025
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