Sales and Sales
[2010] FMCAfam 1153
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SALES & SALES | [2010] FMCAfam 1153 |
| FAMILY LAW – Parenting – contravention application – bond imposed – application in a case my mother to allow eldest child to travel to the United States of America for a holiday with paternal aunt. |
| Family Law Act 1975, ss.60CA, 60CC, 64B, 65DA, 65N, 70NAC, 70NAD, 70NAE, 70NAF, 70NBA, 70NDB, 70NEB, 70NEC, 70NFB, 70NFE. Evidence Act 1995, s.140 |
| Fooks & Clark (2004) 32 Fam LR 149, (2004) FLC 93-183, [2004] FamCA 212 Goode & Goode (2006) FLC 93-286 In the Marriage of O’Brien (1992) 16 Fam LR 723, (1993) FLC 92-396 Stavros & Stavros (1984) 9 Fam LR 1025 FLC 91-562 TVT & TLM (2006) FMCAfam 20 |
| Applicant: | MR SALES |
| Respondent: | MS SALES |
| File Number: | SYC 7129 of 2009 |
| Judgment of: | Monahan FM |
| Hearing date: | 13 August 2010 |
| Date of Last Submission: | 3 September 2010 |
| Delivered at: | Sydney |
| Delivered on: | 3 September 2010 |
REPRESENTATION
| Counsel for the Applicant: | None |
| Solicitors for the Applicant: | Moylan Family Lawyers |
| Counsel for the Respondent: | Self Represented Litigant |
| Solicitors for the Respondent: | Self Represented Litigant |
ORDERS
AND UPON:
(a)the Court being satisfied that the Respondent, MS SALES (also known as MS SALES) has committed a contravention of an Order under the Family Law Act1975 (“the Act”) affecting children (being a contravention of paragraphs 2(a) of the Orders made by this Court, by consent, on 20 April 2010);
(b)the Respondent not having proved that she had a reasonable excuse for the contravention referred to in (a) above;
(c)no Court having jurisdiction under the Act having previously determined that the Respondent has, without reasonable excuse, contravened the Order referred to in (a) above; and
(d)the Court being satisfied that Subdivision E of Division 13A of Part VII of the Act applies to the contravention referred to in (a) above.
THE COURT ORDERS THAT:
Pursuant to ss.70NEB(1)(d) and 70NEC of the Act the Respondent
Ms Sales (also known as MS SALES) enter into a bond in the amount of $500.00, without surety or security, for a period of 6 months from today to:(a)Be of good behaviour; and
(b)Obey all orders of the Federal Magistrates Court of Australia made in the above mentioned case.
The Respondent pay the Applicants costs fixed in the amount of $1,117.50 with full payment to take place within 3 months of today’s date.
Both parties forthwith attend and complete a post-separation parenting course at their own expense as recommended by the Family Relationships Centre at [C] in order to facilitate improved communication between the parties.
The amended contravention application filed 5 August 2010 be otherwise dismissed.
All extant applications be adjourned to this Court on 9 November 2010 at 9:30am for mention (“the mention hearing”).
Pursuant to s.68L(2) of the Family Law Act1975 (“the Act”), [X] born [in] 1997 and [Y] born [in] 1999 (“the children”) be independently represented AND IT IS REQUESTED that Legal Aid Commission of New South Wales, PO Box K847 HAYMARKET, arrange such separate representation and:
(a)Upon appointment, the Independent Children’s Lawyer file a Notice of Address for Service;
(b)Within 48 hours of notification of such appointment the solicitors for the respective parties provide to the Independent Children’s Lawyer copies of all documents thus far filed in these proceedings by the party together with all existing orders and copies of any relevant reports; and
(c)The Independent Children’s Lawyer fulfil the requirements set out in ‘Guidelines for the Child’s Representative’ as published on the website of the Family Court of Australia, and in particular carry out the tasks set out in clauses 5, 6.2, 6.3, 6.5 and 6.7.
Paragraph 2 of the Orders made by consent by this Court on 20 April 2010 be discharged.
THE COURT ORDERS UNTIL FURTHER ORDER THAT:
The Applicant spend time with the children as follows:
(a)From 7:00pm Friday until 6:00pm Sunday on the following dates:
(i) 3 to 5 September 2010;
(ii) 10 to 12 September 2010;
(iii) 8 to 10 October 2010;
(iv) 15 to 17 October 2010 29 to 31 October 2010;
(v) 12 to 14 November 2010;
(vi) 19 to 21 November 2010;
(vii) 3 to 5 December 2010;
(viii) 17 to 19 December 2010;
(b)
One further weekend as nominated by the Applicant between
17 September 2010 until 12 December 2010 (but not the weekend commencing 24 September 2010) from 7:00pm Friday until 6:00pm Sunday such further weekend to be advised in writing by the Applicant to the Respondent with fourteen (14) days;
(c)From 7:00pm 23 December 2010 until 3:00pm 25 December 2010;
(d)From 7:00pm 12 January 2011 until 7:00pm 26 January 2011;
(e)Each alternate weekend commencing 4 February 2011 from 7:00pm Friday until 6:00pm Sunday; and
(f)At such other times as the parties may agree in writing.
[X] born [in] 1997 (“[X]”) is permitted to travel to the United States of America from 26 December 2010 until 11 January 2011.
Paragraph 5 of the Orders made by this Court by consent on 20 April 2010 be suspended for the period 26 December 2010 until 11 January 2011 in respect of [X] for the sole purpose of allowing her to travel to the United States of America with the paternal aunt, namely Ms S.
The Respondent have leave to uplift [X]’s passport held in the Registry of the Federal Magistrates Court, Sydney from 20 December 2010 until 24 January 2011 in order to facilitate [X] travelling to the United States pursuant to paragraph 8 and 9 herein.
All changeovers occur at McDonalds Family Restaurant, [suburb omitted] or such other place as agreed between the parties.
AND THE COURT FURTHER ORDERS THAT:
The application in a case filed by the Respondent on 2 June 2010 be otherwise dismissed.
The parties have liberty to apply on seven (7) days notice in respect of enforcement of these Orders.
AND THE COURT NOTES THAT:
(A)Prior to the making of this Order the Court discharged its obligations pursuant to s.70NEC(5) of the Act.
(B)Paragraph 8 herein includes make-up time pursuant to s.70NEB(1)(b) of the Act.
(C)On 24 September 2010 the Respondent proposes that the children travel to Queensland to visit the paternal grandmother for a period of seven (7) days.
(D)
The purpose of the mention hearing is to consider whether the matter may benefit from child inclusive family therapy on a reportable basis and whether the matter should remain fixed for final hearing on
31 January 2011 with an estimate of two (2) days.
(E)Pursuant to ss.65DA(2) and 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Sales & Sales is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC7129 of 2009
| MR SALES |
Applicant
and
| MS SALES |
Respondent
REASONS FOR JUDGMENT
The reasons for judgment are in two parts. The first part deals with the Amended Contravention Application filed 5 August 2010 by the Applicant. The second part deals with the Application in a Case filed
2 June 2010 by the Respondent.
PART 1: AMENDED CONTRAVENTION APPLICATION
Introduction
The amended contravention application was filed on 5 August 2010 by MR SALES (“the father”) alleging contravention of the current parenting orders by the mother, MS SALES (“the mother”). The relevant children of the relationship are [X], born [in] 1997 and [Y], born [in] 1999 (“[X]”, “[Y]” or collectively “the children”).
The parenting arrangements for the children are relatively typical as seen by this Court on a regular basis. Pursuant to consent orders made by Kemp FM on 20 April 2010 the children live with the mother and spend alternate weekend time with the father, from 7:00pm Friday until 6:00pm Sunday, and at such other times as the parties agree (“the Consent Orders”).
The father’s amended contravention application alleges that the mother has, on more than one occasion, failed to comply with the Consent Orders. The father’s application is supported by his affidavits sworn on 4 June 2010 and filed on 8 June 2010 (“the father’s first affidavit”) and his affidavit sworn and filed on 5 August 2010 (“the father’s second affidavit”).
The mother is alleged to have contravened paragraph 2(a) of the Consent Orders. The relevant dates and times of the contraventions are as follows:
a)Friday, 30 April 2010, 7:00pm;
b)Saturday, 15 May 2010, 11:30am;
c)Friday, 28 May 2010, 7:00pm;
d)Friday, 11 June 2010, 7:00pm;
e)Friday, 25 June 2010, 7:00pm;
f)Friday, 9 July 2010, 7:00pm;
g)Saturday, 24 July 2010, 11:30am.
Overall, it appears that the father has spent little time with the children since the Consent Orders were made.
In response, the mother argues there was no contravention of the Consent Orders as alleged by the father. In the event that the Court finds that there was a contravention of the Consent Orders as alleged by the father, then such contravention or contraventions were reasonably excusable. The mother relies on her affidavit sworn and filed on 5 August 2010 in relation to these proceedings.
At the hearing of the application the father was legally represented by Ms Menkes. The mother was self represented. The mother was offered the opportunity to speak to the duty solicitor prior to the commencement of the hearing, but declined to do so.
Both parties were cross-examined in Court, at the hearing on 13 August 2010.
Background
It would appear the parties commenced cohabitation in 1994 and were married in 1996. They separated in 2000 and were divorced on 15 September 2001.
In November 2009, the father commenced proceedings against the mother, seeking various parenting orders in relation to the children to the following effect:
·firstly, equal shared parental responsibility for the children; and
·secondly, an equal-time parenting arrangement.
These substantive parenting proceedings are opposed, in part, by the mother. Although she seeks an order for equal shared parental responsibility, she also seeks orders that the children live with her and spend alternate weekend time, from Saturday morning, after netball, until 6:00pm Sunday with the father.
When the matter came before Kemp FM on 3 February 2010, his Honour made various orders, including an order for the parties to attend a child dispute conference. That conference took place on 9 March 2010 before Ms T, Family Consultant. On that occasion, the parties agreed to effectively implement the proposal of the mother until the matter returned to Court.
As stated, the Consent Orders made by Kemp FM provide that the children spend alternate weekends with the father from 7:00pm Friday until 6:00pm Sunday. The father is to collect and deliver the children from the mother’s residence at the commencement and conclusion of those times.
Apart from the current contravention proceedings before the Court, the mother has also filed an application in the case, which was heard following the conclusion of the contravention hearing on 13 August 2010. In that application the mother seeks the suspension of paragraph 5 of the Consent Orders, to enable the eldest child, [X], to travel with the paternal aunt to the United States of America during late 2010 and early 2011. As stated, the reasons for judgment of that application are contained in Part 2 of this decision.
The substantive proceedings are listed for final hearing in February 2011.
The law
By way of preliminary comment, the Court notes s.65DA of the Family Law Act 1975 (“the Act”) provides that there is a duty on the Court to include in parenting orders particulars of:
a)the obligations the orders create; and
b)the consequences that may follow if a person contravenes the order.
The duty upon the Court is to ensure that persons affected by parenting orders, other than child maintenance orders, must be firstly provided with information about the obligations that the orders create and the consequences that may follow if a person contravenes the orders. The information ought to be explained in language that is likely to be readily understood by the person to whom the orders are directed and also inform that person of the availability of programs to help them understand their responsibilities under the orders. Such particulars are set out in the standard form and annexed to Court orders. The Court also has a brochure setting these out. Furthermore a legal practitioner representing a party can be requested to fulfil the Court’s duty, to provide particulars and explanations.
It is certainly clear from the file that s.65DA was complied with and the parties were given the prescribed information when they received the Consent made on 20 April 2010.
Section 70NAD of the Act deals with the requirements to be included in certain orders. Under s.70NAD(b) the relevant order to a contravention must be a parenting order and this includes a parenting order relating to the time a child spends with a parent in accordance with s.65N of the Act.
In respect to the applicable law, Part VII Division 13A of the Act deals with the consequence of failure to comply with orders and obligations that effect children. Prior to considering the relevant provisions under Division 13A, the Court notes that pursuant to s.64B(1)(a) of the Act a parenting order is:
“…an order under this Part (including an order, until further order) dealing with the matter mentioned in subsection (2)”
and under s.64B(2)(b) a parenting order may deal with:
“The time a child is to spend with another person or other persons”
In other words, an interim order relating to how much time and the circumstances by which the applicant spends time with his children is a parenting order for the purposes of Part VII Division 13A of the Act.
Meaning of contravened an order
Section 70NAC of the Act deals with meaning of contravened an order and states:
“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.”
In other words, in relation to non-compliance with a Court order it is clear that the provision requires the Court to be satisfied the respondent has either intentionally failed to comply or has made no reasonable attempt to comply with the relevant orders.
The applicant to a contravention application, that is the father, bears the onus of proving the contravention of the respondent on the balance of probabilities. Section 140 of the Evidence Act 1995 refers to the standard of proof and provides for the Court to take into account the nature of the proceedings in determining whether it is satisfied as to the requisite standard and states:
“(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.”
Meaning of reasonable attempt to comply with the order
The issue of whether the respondent has made a reasonable attempt to comply with the order has been considered in a number of cases. It is clear that a parenting order in relation to children spending time with the other parent is not a mere declaration but casts an obligation upon the relevant parent such as the respondent
“to take reasonable steps to deliver the child to the other parent at the commencement of the access period.”[1]
[1] Stavros &Stavros (1984) 9 FLR 1025 at 1030.
Whether the steps that were taken by the relevant parent were a reasonable attempt to comply with the relevant parenting order will ultimately depend upon the facts and circumstances of each case. As Riethmuller FM stated in the case of TVT & TLM (2006) FMCAfam 20 (“TVT & TLM”):
“It is accepted that the resident’s parent has a duty to ensure that the child not only attends, but does so in a positive manner.”[2]
[2] TVT & TLM (2006) FMCAfam 20 at [33]
In TVT v TLM Riethmuller FM noted that the way that the applicable obligation has been described in different cases provides considerable guidance as to the extent of the obligation. His Honour states:
“(a)The residence parent must actively encourage the child to attend contact as ordered.
(b)‘The Courts have been careful to consider whether in reality, not just on the face of things, the [residence] person has taken reasonable steps to deliver the child for [contact]’: see O'Brien & O’Brien (1993) FLC ¶92-396 at [13].
(c)‘It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it’: Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [25].
(d)Similarly, a mere request that the child telephone, or come to the telephone is insufficient.
(e)Once an order for contact has been made, it is ‘no longer a case of saying to the child: you go if you want to, if you wish to go you go, or you make up your own mind’: see O'Brien & O’Brien (1993) FLC ¶92-396 at [11].
(f)A residence parent ought to make ‘the child understand that it was the [residence parent’s] attitude that the child had to go on [contact]’: see O'Brien & O’Brien (1993) FLC ¶92-396 at [8].
(g)The residence parent is expected to bring to bear all the authority that they have over a child, just as they would to ensure the child attends school: See P & P [2002] FMCAfam 315 (Unrep.) at [14].
(h)It must be noted that ‘an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or in a manner which of its own suggests that this is your obligation under the order but mummy really does not mind if you say no.’ Such an invitation is insufficient: see Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [26].
(i)‘[I]t is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation’: see Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [6].
(j)‘It is not a sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter’: Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [6].
(k)The residence parent is ‘not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance’: Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [8].”
Meaning of reasonable excuse for contravening an order
Section 70NAE of the Act deals with the meaning of a reasonable excuse for contravening an order. Under s.70NAE(2):
“A person (the respondent) is taken to have a reasonable excuse for contravening an order under the 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 Court on the person bound by it; and
b)the Court is satisfied that the respondent ought to be excused of the contravention.”
This may be a relevant issue in the proceedings in respect of the children not spending time with the father in early July 2010.
Section 70NAE(5) deals with contravening an order with whom a child is to spend time with. It states:
“A person (the respondent ) is taken to have a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) 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 necessary to protect the health of the person referred to in paragraph (a).”
As to the defence available under s.70NAE of the Act, in similar words to that available under s.112AC of the Act at the time, Smithers J in the case of In the Marriage ofO’Brien (1992) 16 Fam LR at 723 stated:
“It seems to me that the passing of section 112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of a child is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to the order was necessary to protect the health or safety of a person. It is not a question as to whether, in the view of the custodial parent or in the view of the custodial parent on reasonable grounds that carrying out the access order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person, including the child.”[3]
[3] In the marriage ofO’Brien (1992) 16 Fam LR 723 at 727
Of course, there may be situations where a child is so resistant and distressed that a refusal to spend time or communicate with the other parent will be excused. The case of Fooks v Clark (2004) 32 Fam LR 149 is one example. However such situations “are rare in the absence of precipitating contact by the contact parent, or otherwise changed circumstances”.[4] The circumstances often, but not always, demonstrate that the primary carer parent has not taken the appropriate steps to ensure that the child spend time with the other parent.
[4] TVT & TLM at paragraph 40.
Section 70NAF of the Act deals with the necessary “standard of proof”. Subsection (1) states that:
“subject to subsection (3) the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.”
Section 140 of the Evidence Act similarly applies as has already been discussed.
To summarise, the Court must be satisfied, firstly, that there has been a contravention of the relevant order and, if so, secondly the Court must be satisfied on the balance of probabilities that the contravention was without reasonable excuse. If the contravention is established, then regardless of whether the contravention was reasonably excused, the Court has powers under s.70NBA to vary a parenting order and the powers under s.70NDB to make an order compensating a parent for time lost. More specifically, s.70NDB(1)(c) states that the Court :
“…may make a further parenting order that compensates the person for time the person did not spend with the child, or the time the child did not live with the person, as a result of the current contravention;…”
Indeed, the provision is clear that the Court is required to consider what will be described as a ‘time lost order’ providing such is in the best interests of the child.
Contravention without a reasonable excuse
Part VII Division 13A Subdivisions E and F of the Act, when read together, deal with a contravention or contraventions without reasonable excuse. Subdivision F deals with the “more serious contraventions”.
Apart from a time lost order, the Court has a range of powers to deal with an inexcusable contravention that includes:
a)In the most serious cases under s.70NFB(2):
a)a community services order;
b)a bond under section 70NFE;
c)a fine of not more than 60 penalty units;
d)a sentence of imprisonment;
e)a costs order; and
b)In less serious cases under s.70NEB(1):
a)an order to attend a “post‑separation parenting program” to better understand and appreciate the obligations created by parenting orders;
b)a bond under section 70NEC; and
c)a costs order.
So to summarise once more, the Court must be satisfied, firstly, that there has been a contravention of the relevant parenting order. If so, secondly, the Court must be satisfied, on the balance of probabilities that the contravention was without reasonable excuse. Thirdly, if there is no reasonable excuse, the Court must consider the imposition of an appropriate penalty and/or a time lost order that is in the best interests of the child. The type of penalty depends on whether the contravention is less serious, as under Subdivision E, or more serious, as under Subdivision F.
Lastly, if the Court is satisfied there is a reasonable excuse, then the Court is still under an obligation to consider whether a time lost order should be made and, if so, can only do so if it is in the child’s best interests.
Evidence and the parties’ submissions
As previously indicated, the father relied on his first and second affidavits and the respondent similarly relied, in part, on her affidavit filed 5 August 2010.
The father outlines his seven breaches of the orders in the father’s first affidavit.
30 April 2010
On this occasion the father asserts that he attended the mother’s residence at 7:00pm and the children indicated that they did not wish to go with the father. The father also asserts that the mother used words to the effect that:
“If they do not want to go, then they do not have to go”
and otherwise did not encourage the children to go with the father.
In her oral evidence, the mother asserted that she had complied with the orders, by being home at 7:00pm with the children. She also asserted that it was the children’s wish not to spend time with the father on that occasion. Indeed, the mother asserted that:
“The children don’t love their father.”
15 May 2010
The father asserts that while he collected the children without incident on Friday, 14 May 2010, the children refused to go home with him after the conclusion of their netball game at 11:30am on Saturday, 15 May 2010. It appears the two children play netball every Saturday for much of the year and that the mother is involved in coaching or otherwise is associated with their sports team. On this occasion, the father again asserts that the mother made no attempt to encourage the children to go home with the father and said words to the effect:
“I don’t care what the orders say, the girls can do as they wish and they told me that they want to come home with me.”
The mother denies this and gave evidence that the children simply opted to go home with her without any influence from her.
28 May 2010
The father asserts that the mother again refused to encourage the children going to spend time with the father. The father also submitted that on this occasion when the children refused to go with him the mother said words to the effect:
“None of this has anything to do with me and I’m not getting involved.”
The father conceded, under cross-examination, that he had received a telephone call on the Monday preceding this occasion from [Y], requesting that she be allowed to attend a sleepover at a friend’s house. He also asserted that he had told [Y] that that wasn’t possible, because he had not spent time, or not spent very much time, with her and [X] in the month previous.
The mother’s evidence was that this incident was yet another example of the father’s inflexibility and inability to earn the respect of the children and that, in any event, she was of the view that [Y]’s sleepover was more beneficial to the child than spending time with the father on that occasion.
11 June 2010
The father asserts that he was unable to collect the children from the mother on Friday, 11 June 2010. Indeed, the father asserts that the mother and children did not appear to have been at home at that time and that his calls to the mother went unanswered.
The mother conceded that the children were not at home that evening. Indeed, the children were spending that weekend, which was the Queen’s Birthday long weekend, with their maternal grandparents on the New South Wales south coast. The mother cannot recall receiving any telephone messages on that evening. She also conceded that she had not advised the father that the children would not be spending time with the father that weekend, because they were “all going away” for [X]’s thirteenth birthday party. She asserted that she did not believe that the father wanted to spend time with the children that weekend.
25 June 2010
The father alleges that on Friday, 25 June 2010, he attended the mother’s home at 7:00pm and the children stated that they did not want to spend time with him. On that occasion, he asserts that the mother was accompanied by her partner, a Mr C, and did not say or do anything to encourage the children to go with him.
The mother did not dispute that the children did not go with the father on this occasion, but again asserted that it was their preference. She stated that the children were “bored” when spending time with the father and that they “get on better” with Mr C than with their own father.
9 July 2010
The father asserts that on Friday, 9 July 2010, he attended the mother’s home at 7:00pm and was advised by the mother that the children were away on holidays and that the Court orders allowed him to spend time at the end of the school holidays with the children.
The mother agreed that this had occurred and stated her belief that the existing orders provided for the father to spend time with the children in the second half of the school holidays. Under cross-examination the mother conceded that the current interim orders do not state this. She did state that she said to the father words to the effect:
“Come back next weekend.”
The mother suggested that this was an offer for make-up time. This was denied by the father.
It would appear that the children were again holidaying with the maternal grandparents at that time on the New South Wales south coast.
24 July 2010
The father asserts a similar situation to that which occurred on 15 May 2010 also occurred on Saturday, 24 July 2010, following the children’s netball game.
The mother asserted the children did not want to return to the father’s home because “they hate going there” and that they get disturbed by “the crying baby.”
The Court was subsequently advised that the father and his partner had recently had a son called [Z].
Discussion
It is clear that on all the occasions raised by the father, the children did not in fact spend time with the father, or did not spend all of the time provided for in the Consent Orders with the father.
30 April 2010
The mother argued that she had complied with the orders on that occasion because she had made the children available. Her evidence was that it was the children themselves that did not wish to go to spend time with the father.
The Court does not accept this argument. The Court is satisfied that she did not take reasonable steps to comply with or facilitate the spend time order. There was no active encouragement by the mother.
Given this finding, the Court needs to consider whether the mother’s breach of the orders was excusable. It is difficult to see how the mother’s explanation falls within the scope of s.70NAE of the Act. Applying an objective test, the Court is not satisfied that the mother’s excuse for this particular contravention is reasonable in light of the evidence. While the Court is not suggesting that the mother should forcefully coerce the children into spending time with the father, she is under a positive obligation to facilitate the orders that she and the father considered were in the best interests of the children when they were consented to in April 2010.
This contravention occurred on the very first weekend that these interim orders were to take effect.
15 May 2010
The mother argued that she had complied with the Consent Orders on that occasion and, indeed, the evidence is clear that the children were collected from the mother at 7:00pm on 14 May 2010. It was also clear from the evidence that the children did not spend time with the father following their netball match on the following day. The issue is whether a contravention arises by virtue of the mother taking the children home after their netball match.
The Court is satisfied that such an act does represent a contravention of the orders. The issue that then arises is whether the mother’s action were reasonably excusable.
The excuse, again, centres on the reasonableness of allowing the children to determine whether they should spend time or not with the father. Again, the Court notes that this breach comes within four weeks after the interim orders were made. Applying an objective test, the Court is not satisfied that the mother’s excuse for this contravention is reasonable in light of the evidence.
28 May 2010
For the reasons previously mentioned, the Court is satisfied that the children did not spend time with the father on this particular weekend and the mother did not actively facilitate them spending that time. The question that arises again is whether her actions were reasonably excusable.
In her evidence, the mother argues that she did not comply with the orders on this occasion because the children did not wish to spend time with the father. But also because the youngest child, [Y], 10 years at the time of the contravention, was going to stay at a friend’s house on that weekend for what was described as a “sleepover party”.
Applying an objective test, the Court is not satisfied that the mother’s excuse for this particular contravention is reasonable in light of the evidence. The father’s evidence was, of course, that he had declined [Y]’s request to attend the sleepover on the basis that he had not been able to spend any meaningful time with the children, apart from the evening of 14 May 2010, and very little time overall in the period leading up to the making of the Consent Orders.
That said, in relation to [Y], it is again reiterated that while it is not suggested that the mother should forcibly coerce this child into spending time with the father, the mother is under a positive obligation to facilitate the orders that she and the father considered were in the best interests of the children.
Again, it is noteworthy that this breach comes a mere five weeks after the orders were made and following contraventions in every relevant weekend since the orders were made.
11 June 2010
The mother’s explanation for her non-compliance with the orders on the June holiday long weekend that the children were away on the south coast celebrating [X]’s birthday is somewhat disturbing. To suggest that such a flagrant breach of the orders should be excused because she didn’t believe the father wanted to spend time with the children that weekend defies logic. The mother had clearly planned for the children to be away that weekend and there is no evidence before the Court that she either alerted the father to this, or offered any other time as make-up time.
Accordingly, the Court is not satisfied that the mother’s excuse for this contravention is reasonable.
25 June 2010
This incident is evidentially similar to the incident on 30 April 2010, except that the father asserts that the mother said nothing to encourage the children to go and spend time with him.
Again, it is difficult to see how the mother’s explanation that the children do not want to go with the father and find it boring to spend time at the father’s place falls within the scope of a reasonable excuse.
Accordingly, the Court is not satisfied that the mother’s excuse for this contravention is reasonable, particularly when the evidence is clear that since the orders were made the children had spent just one night with the father over a nine week period.
9 July 2010
The mother argued that there was no breach of the Consent Orders because they provided for her to spend time with the children in the first half of the school holidays. When it was pointed out to the mother the orders made no such provision, she asked the Court to be excused because that had been her understanding. In addition, she gave evidence that she had offered the father the next weekend as make‑up time.
The Court finds the mother’s evidence difficult to accept. The Consent Orders are quite clear and not capable of any interpretation that would support the mother’s evidence that they enabled her to spend time in the first weekend or, indeed, the first half of the school holiday period with the children.
Given the circumstances of the children spending just one night with the father since the orders were made, this makes the mother’s assertion that she offered make-up time either a convenient statement or mere fiction.
24 July 2010
The mother’s explanation for what occurred on Saturday, 24 July 2010 is similar to that given for Saturday, 15 May 2010. For the same reasons expressed for that contravention, the Court not only finds that the contravention is established but also that the excuse given was not reasonable.
It is also noteworthy that this occurred on the weekend following the parties appearing before this Court on 19 July 2010 for the first return date of the father’s amended contravention application.
Formal finding
The Court therefore makes formal findings that the mother did contravene the Consent Orders, as alleged, on the following dates and times, without a reasonable excuse for doing so:
a)Friday, 30 April 2010 at 7:00pm;
b)Saturday, 15 May 2010 at 11:30am;
c)Friday, 28 May 2010 at 7:00pm;
d)Friday, 11 June 2010 at 7:00pm;
e)Friday, 25 June 2010 at 7:00pm;
f)Friday, 9 July 2010 at 7:00pm; and
g)Saturday, 24 July 2010 at 11:30 am.
Consequential orders
Given this formal finding that the mother has failed to establish a reasonable excuse for the contraventions of the Consent Orders as asserted, the question of what orders should be made now arises. These are serious breaches by the mother. As previously stated, the Court must decide whether the contraventions fall within the less serious or more serious categories in Division 13A.
Given that this is the first time that the mother has been found to have contravened Court orders without reasonable excuse, the Court formed the preliminary view that the matter should be dealt with under the provisions of Subdivision E that is the less serious contraventions provisions. That said, the Court may have been more inclined to treat her contraventions under the more serious provisions had the mother been previously found in breach.
The Court therefore considered the parties submissions as to penalty. After consideration of these submissions in light of the evidence and the legislative framework, the Court will make orders to the following effect:
a)Firstly, the Court is satisfied that it would be appropriate to deal with the mother’s breach by way of a bond. The bond will be in the sum of $500 and it will require the mother to be of good behaviour for a period of six months from today’s date;
b)Secondly, the Court is satisfied that it is appropriate for the mother to pay the father’s costs fixed in the sum of $1170.50, with full payment to be made within three months of today’s date;
c)Thirdly, the Court is satisfied that a time lost order should be made, as proposed by the father, with the exception of the weekend of 24 to 26 September 2010. That will enable the children to facilitate some time with the paternal grandmother. Consequently, the father will be at liberty to nominate one further weekend, within the next seven days, for a period between now and the weekend commencing 10 to 12 December 2010. Clearly, that weekend will not include the weekend of 24 to 26 September 2010; and
d)Fourthly, both parties will be required to undertake, at their expense, such post‑separation parenting course as nominated by the Family Relationship Centre at [C]. In particular, one of the purposes of that course should be the issue of facilitating better communication between the parents in respect of parenting matters.
There will also be an order today seeking the appointment of an Independent Children’s Lawyer (“ICL”) in relation to the substantive proceedings and the listing of the matter for mention following the appointment of the ICL.
At the mention hearing the Court will consider two issues:
a)firstly, whether the matter might benefit from an order for child inclusive family therapeutic counselling on a reportable basis prior to the final hearing of the matter; and
b)secondly, whether the matter should remain fixed for final hearing in late January 2011.
There will now be orders of the Court to reflect this decision.
The right to settle the reasons for this decision is reserved.
PART 2: REASONS FOR JUDGMENT: APPLICATION IN A CASE
Introduction
This is an application in a case filed on 2 June 2010 by the mother against the father seeking interim parenting orders (“the mother’s application”). Although awkwardly drafted the mother seeks an order suspending paragraph five the Consent Orders to enable [X] to travel to and from the United States of America (“USA”) with the paternal aunt, MS S (“the paternal aunt”) for the period 27 December 2010 to 18 January 2011.
The mother’s application is supported by her affidavit sworn and filed 2 June 2010 and the affidavit of the paternal aunt sworn 3 June 2010 and filed 29 June 2010. The mother is self-represented today and was also self-represented at the interim hearing on the 13 August 2010 (“the interim hearing”).
The father, in his response to the mother’s application filed 18 August 2010, opposes the orders sought and seeks for it to be dismissed with costs. The father relies on his affidavit sworn and filed 10 August 2010 and was legally represented by Ms Menkes today as he was at the interim hearing.
Background
Refer to paragraphs ten to fourteen and sixteen herein for the relevant background.
The mother’s application was heard following the conclusion of the father’s amended contravention application filed 5 August 2010 regarding alleged breaches of the Consent Orders.
The substantive parenting proceedings before me are listed for hearing before this Court in February 2011.
Agreed and disagreed facts
The relevant paragraphs of the Consent Orders are as follows:
“3. That within seven (7) days both parties shall do all such acts and things necessary to cause a passport to be issued for the child [X].”
4. That upon issue of a passport for the child [X] the mother shall within fourteen (14) days deliver [X]’s passport to the Registry of the Federal Magistrates Court, Sydney, 97-99 Goulburn Street, Sydney to be held by the Court pending further order of the Court.”
5. That pending further order of the Court each party be restrained from removing or causing the removal of the children from the Commonwealth of Australia.”
The orders also included the following notation:
“A. The mother intends filing an application in a case seeking orders permitting the child [X] to travel with the paternal aunt, Ms S, to the United States of America.”
The father does not presently have a relationship with either his sister, being the paternal aunt, or his mother (“the paternal grandmother”).
The parties also indicated they were in disagreement today, or at the time of the interim hearing, over whether [X] would be in any risk of harm in being able to travel to the USA with the paternal aunt at the end of 2010.
Parties’ submissions
In her submissions the mother asked the Court to accept her evidence that [X] would not be in at significant risk if she were allowed to travel to the USA with the paternal aunt for three weeks commencing
27 December 2010 and concluding 18 January 2011.
The mother then submitted that the proposed trip would indeed benefit [X] as it was “An opportunity of a lifetime.” By that statement she asserted that the trip was being fully funded by the paternal aunt as a thirteenth birthday present for [X]. It would appear that the paternal aunt is [X]’s “Godmother”. The mother asserted that she was not in a financial position to travel with [X], or to pay for [Y] to go as well. That said, the mother asserted that [Y] may be given a similar opportunity for her thirteenth birthday down the track.
The mother asserted that, despite her strained relationship with the father, the children had a close and continuing relationship with the paternal aunt and the paternal grandmother, who are both estranged from the father. She submitted that the flight details had been provided to the father and that the paternal aunt’s affidavit gave particulars of who they would be staying with.
The mother conceded she does not know the paternal aunt’s friend,
Ms C, with whom [X] will stay with in Tennessee, USA for much of the proposed trip. She also conceded she had not spoken to, or otherwise contacted, Ms C about the proposed trip.
Ms Menkes submitted that the father had fears for [X]’s safety if the proposed trip was permitted. She submitted the following reasons existed to explain the risk to [X]:
a)The paternal aunt did not have children herself and had no experience in caring for children;
b)As the mother was not proposing to travel with [X] and the paternal aunt, the paternal aunt would be the only carer in a foreign environment;
c)The father had concerns about whether the paternal aunt would set “appropriate limits for a thirteen year old child”;
d)The father did not know Ms C and the mother also conceded she did not know Ms C and, more disturbingly, had not contacted or spoken to Ms C about it;
e)The father had, through his solicitors, made numerous requests, dating back to February 2010, for further and better particulars about the trip which were not responded to, including a request for a detailed itinerary, details of who [X] would be spending time with and the like;
f)The impact that the length of such a trip would have on the father’s time to be spent with the children, particularly given that this time would take place in the annual summer school holidays just prior to the final hearing of the substantive dispute; and
g)The father’s necessity to bring contravention proceedings against the mother is indicative and supportive of his fear that the mother will not abide by whatever orders are made by the Court in any event.
In her reply the mother disputed that she does not comply with Court orders and that the father’s refusal to allow [X] to travel would only serve to further strain the relationship between [X] and the father. The mother also asserted that the paternal aunt is a regular traveller to the USA and [X] would be safe in her care. She also asserted [X] can spend block time with the father upon her return to Australia.
The Law
The Full Court of the Family Court decision of Goode & Goode (2006) FLC 93-286 (“Goode”) guides the Court approach when making interim decisions and interim orders in relation to parenting disputes. At paragraph 81 the Full Court states:
“In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence, and disputes between parents as to what constitutes the best interest of the child.”
Clearly this dispute is such a case. More specifically it raises the reality that the Court cannot fully determine issues of credit at an interim hearing as the evidence being presented by the parties has not been tested by cross-examination. That said, again in paragraph 81 of Goode the Full Court made it clear that the legislative pathway must be followed. In other words the relevant provisions of the Act post the 2006 shared parenting amendments must be followed in an interim hearing.
There is considerable disagreement, indeed animosity, it would appear, between the parties in this case and no doubt the history of the matter will be the subject of evidence and cross-examination at a final hearing should such be needed.
There is no dispute of equal shared parental responsibility to determine as part of this application. The dispute is simply limited to the issue of whether the existing orders preventing travel overseas should be lifted or suspended to enable [X]’s proposed trip to the USA to take effect from 27 December 2010 until 18 January 2011.
The Goode decision also reminds Courts, such as this, that before deciding these matters the Court is required to identify:
·the competing proposals of the parties;
·the issues in dispute; and
·any agreed or uncontested relevant facts.
These have already been outlined.
At this point it is noted that s.60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.”
To determine a child’s best interests the Court must consider the primary considerations or factors set out in s.60CC(2) of the Act and the additional considerations referred to in s.60CC(3) where relevant.
Primary Considerations: s.60CC(2)
The Court is firstly required under s.60CC(2)(a) to consider the benefit of a child having a meaningful relationship with both of his or her parents. It is noted that “meaningful’ does not mean “equal” however it clearly signifies that both parties should be involved with the children and, consequently, signifies an expectation of time to be spent.
The right of a child to spend time with each parent and extended family is clearly a right of the child’s. Consequently the Court will, in all likelihood, give some considerable weight to this factor at the final hearing should such be needed. There is a huge question mark hanging over the mother as to whether she has been facilitating and encouraging a meaningful relationship between the children and the father given the recent decision in respect of the contravention proceedings.
The Court is also required under s.60CC(2)(b) to consider the need to protect a child, such as [X] in this case, from physical or psychological harm and being subjected to abuse, neglect or family violence. There is no doubt that it would be in [X]’s best interest to develop a meaningful relationship, not just with the mother but also with the father. That needs to balanced, however, with protecting children from any harm.
It is clear that [X] would be travelling to the USA with a relative, ironically, the paternal aunt. However, the father acknowledges the strained relationship with his sister which is unfortunate given these circumstances.
Additional considerations: s.60CC(3)
As to the “views of the child” under s.60CC(3)(a) the Court needs to carefully balance [X]’s view that she would wish to travel with the paternal aunt and, for whatever reason, is reluctant to spend time with the father.
Clearly, the counselling process in respect of the family report will be beneficial in unlocking why this view has become so entrenched. In relation to the willingness and ability of each parent to facilitate a close and continuing relationship between the children and the other parent the Court is satisfied that the family report process, and perhaps family therapy, if needed, will assist in determining the parties’ future relationships with the children.
In relation to the “likely effect and change on the child’s circumstances” including the likely effect of any separation from either parent and the like, the proposed holiday will occur during the annual summer school holiday periods.
Lastly, in relation to any other facts or circumstances, the Court notes that the proposed travel is to be undertaken with the paternal aunt.
Conclusion
Having considered the parties submissions, and in light of the evidence and the structured discretion within the Act, the Court is satisfied that [X] should be permitted to travel with the paternal aunt to the USA.
While the Court considers that the proposed period is too long, and in more “normal’ circumstances where one might expect the children to spend at least half their holidays with each of their parents this is not currently a feature of the parenting orders that exist between the parties.
However the Court does consider that a period of two consecutive weeks, or fourteen days, is needed for [X] to spend meaningful time with the father prior to her returning to school in 2011. The Court notes that term one of the 2011 school year commences Friday, 28 January 2011.
Consequently, this will only enable [X] to travel between the periods of 26 December 2010 until 11 January 2011, a period of 16 days, with the paternal aunt in the USA.
As a result of today’s order, the children will also spend defined periods with the father from 7:00pm 23 December 2010 until 3:00pm 25 December 2010 and again from 7:00pm 12 January 2011 until 7:00pm 26 January 2011.
The right to settle the reasons for this decision is reserved.
I certify that the preceding one-hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of Monahan FM
Date: 3 November 2010
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