SANKAR & RAI
[2020] FCCA 392
•2 March 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANKAR & RAI | [2020] FCCA 392 |
| Catchwords: FAMILY LAW – Application – contravention – reasonable excuse established – orders stayed. |
| Legislation: Family Law Act 1975 (Cth), ss.70NAE, 70NEA, 70NFA, 70NAA, 70NDA, 70NAF, 70NAC, 70NBA |
| Cases cited: Childers & Leslie (2008) FLC 93-356 |
| Applicant: | MR SANKAR |
| Respondent: | MS RAI |
| File Number: | PAC 3262 of 2013 |
| Judgment of: | Judge Obradovic |
| Hearing date: | 16 December 2019 |
| Date of Last Submission: | 16 December 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 2 March 2020 |
REPRESENTATION
| Appearing for the Applicant: | Mr Navarrete |
| Solicitors for the Applicant: | MN Lawyers & Associates Pty Ltd |
| Counsel for the Respondent: | Mr Battley |
| Solicitors for the Respondent: | Katsoolis & Co |
ORDERS
A finding be recorded that the Respondent contravened the orders of the Federal Circuit Court made on 8 March 2016 in that:
(a)On 20 April 2019 at 9am at A Street, Suburb B, the Respondent, with reasonable excuse, failed to deliver the children, X born in 2005 and Y born in 2007 to A Street, Suburb B New South Wales for the purpose of spending time with the applicant, in breach of Order 2(c) of the Court Orders dated 8 March 2016.
(b)On 2 May 2019 at 3pm at C School (D Street, Suburb C, New South Wales), the Respondent, with reasonable excuse, failed to facilitate and/or encourage the children, X born in 2005 and Y born in 2007 (“the children”) to spend time with the Applicant whereby the Respondent collected the children from the C School (“the school”) and hindered/prevented the Applicant to collect the children from the school, in breach of Order 2(b) of the Court Orders dated 8 March 2016.
(c)On 8 May 2019 at 3pm at C School (D Street, Suburb C, New South Wales) the Respondent, with reasonable excuse, failed to facilitate and/or encourage the children, X born in 2005 and Y born in 2007 (“the children”) to spend time with the Applicant whereby the Respondent collected the children from the C School (“the school”) and hindered/prevented the Applicant to collect the children from the school, in breach of Order 2(b) of the Court Orders dated 8 March 2016.
(d)On 16 May 2019 at 3pm at C School (D Street, Suburb C, New South Wales) the Respondent, with reasonable excuse, failed to facilitate and/or encourage the children, X born in 2005 and Y born in 2007 (“the children”) to spend time with the Applicant whereby the Respondent collected the children from the C School (“the school”) and hindered/prevented the Applicant to collect the children from the school, in breach of Order 2(a) of the Court Orders dated 8 March 2016.
Paragraph 2 of the final parenting orders made by consent on 8 March 2016 is stayed.
Each party pay his or her own costs of and incidental to the contravention proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Sankar & Rai is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3262 of 2013
| MR SANKAR |
Applicant
And
| MS RAI |
Respondent
REASONS FOR JUDGMENT
The parties to the proceedings are the parents of X who was born in 2005 and will be 15 soon, and Y who was born in 2007 and is now 13 years old. The father brings the Application-Contravention and the mother is the respondent to it.
On 26 August 2019, in the absence of the mother, the Court found that she had prima facie contravened orders made on 8 March 2016 on four separate occasions.
By way of her affidavit filed on 5 December 2019, the mother has admitted to such contraventions. The mother however submitted to the Court that she had a reasonable excuse on each and every occasion she contravened the orders.
The mother relied upon s.70NAE(4) of the Family Law Act 1975 (Cth) in respect of all four contraventions. This is but one of the circumstances in which a respondent to a contravention application may be found to have had a reasonable excuse for contravening an order.
The onus of proof rests with the mother to establish that she had a reasonable excuse for the contraventions.[1]
[1] ss.70NDA(c); 70NEA(1)(c); 70NFA(1)(c)
The crux of the mother’s arguments with respect to each and every contravention is that the children are frightened of the father, that they are at risk with the father and that she cannot force them to spend time with the father.
The Law dealing with Contraventions
The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A of the Family Law Act1975 (Cth).
Division 13A is organised in a progression from lesser to greater seriousness, as explained in s.70NAA. In summary it deals in turn with:
a)Preliminary matters, including definitions and a provision relating to the standard of proof (s.70NAF): subdivision A;
b)Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;
c)Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;
d)Contravention established, but a reasonable excuse - the court can make orders for compensation for time lost, and costs orders: subdivision D;
e)Less serious contraventions, and no reasonable excuse - the court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E;
f)More serious contraventions, and no reasonable excuse - the court has more punitive powers, including fines and imprisonment: subdivision F
The meaning of “contravened an order” is set out in s70NAC of the Family Law Act1975 (Cth):
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;
…
(Emphasis in original)
The meaning of “reasonable excuse” is, relevantly[2], found in s70NAE of the Act, which reads:
4. A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
[2] As noted earlier, this is the subsection the respondent relied upon at hearing
In Taikato v R[3] the High Court in a different context, considered the meaning of ‘reasonable excuse’. Their Honours said:
… what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defences of ‘reasonable excuse’ is an exception…
… Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence.
[3] (1996) 186 CLR 454 at p464-466 per Brennan CJ, Toohey, McHugh & Gummow JJ
Section 70NAE was considered by Warnick J in Childers & Leslie[4] where his Honour said:
22… s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found. While it is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse, a much more difficult question is whether, if the circumstances seem to fit within the character of those set out in a subsection, that subsection describes the limits within which reasonable excuse may be found. For example, could a respondent who genuinely believed that contravention was necessary to protect a child’s health, but who had no reasonable grounds for that belief, nonetheless be found to have had a reasonable excuse for contravention or, might a person who contravened an order to protect a child’s health be found to have had a reasonable excuse for contravention, notwithstanding that the retention was for longer than was necessary to protect the child’s health.
23.The first example might be addressed by regarding the term “reasonable excuse” in s 70NAE(1) as being an objective test, albeit one that might include “subjective” aspects. Thus, the term “reasonable excuse” in subsection (1) would match the term “on reasonable grounds” in subsection (5). If this approach was taken, the same result would be achieved whether subsection (5) was expressly relied upon or not. While this conclusion does not mean that subsection (5) must be applied whenever it can “fit” the circumstances, it certainly does not support an opposite conclusion.
24.While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “...necessary to protect the health...” and “...not longer than was necessary”, which if not met will exclude some “excuses”. I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection. So, as to the second example given in the preceding paragraph, without such an additional circumstance, it would not be open to find reasonable excuse in respect of a contravention for a period that exceeded that which was necessary to protect a child’s health.
29.… The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in In the Marriage of Lutzke (1979) 5 FamLR 553 at 559:
... However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.
30. Here, the context in which “reasonable excuse” applied tellingly included the subsections of s 70NAE. It also included that the father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the mother in this case.
[4] (2008) FLC 93-356
It is appropriate, with respect, to adopt a similar interpretation of s70NAE(4) as that adopted by Warwick J in respect of s70NAE(5).
A reasonable excuse in respect of a concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of time with a child pursuant to an order was necessary to protect the health and safety of a person. It is not a question as to whether in the view of the parent with whom a child lives, or in the view of that parent on reasonable grounds, that the carrying out of the 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.[5]
[5] In the marriage of O’Brien (1993) FLC 92-396
The Court is however not limited to the matters set out in s70NAE(4). The clear meaning of s70NAE(1) is that the various sub-sections mentioned therein are not the only circumstances in which a reasonable excuse may be found.
Chronology
It is important to understand and appreciate the history of the parenting proceedings and in the circumstances in which the Application-Contravention was filed.
The parents of X and Y have been involved in parenting proceedings since August 2013, when the father commenced proceedings seeking parenting and property orders.
According to the Initiating Application filed on 2 August 2013, the parties were married[6] in February 1995 and they separated in February 2013. At the time of separation, X was seven years and 10 months old and Y was six years old.
[6] And commenced living together
On 3 September 2013, the Court made interim orders with the consent of the parties, for the children to live with the mother and to spend time with the father each week from Friday after school to Monday before school, half of the short school holidays and otherwise as agreed between the parents. Further interim orders were made by consent on 26 November 2013 in respect of the school holidays at the conclusion of the 2013 school year.
On 4 March 2014, further interim orders were made in respect of school holidays and Mother’s Day, but the orders continued to see the children spending time with the father in a significant and substantial manner.
On 28 November 2014, the parents further agreed to arrangements for the end of year school holidays and orders were made accordingly. In May 2015, the Family Report was released and ultimately the matter was listed for final hearing.
On 8 March 2016, the parents invited the Court to make final parenting orders by consent. The Court ordered that the parents have equal shared parental responsibility, that the children live with each of the parents as follows:
a)During school term, with the father, in week 1 from after school on Thursday to before school on Monday and in week 2 from after school on Wednesday to before school on Friday;
b)With the father half of each school holiday period; and
c)In essence, with the mother at all other times.
There was provision in the orders for special days and the usual orders relating to sharing of information and similar. The orders also provided for X to continue counselling with Mr E.
By and large it appears the children lived with the parents in accordance with the March 2016 orders. In September 2018 however, a complaint was made by the mother to the police that the father slapped Y in the face. Following the report, the father was charged and the police applied for an apprehended domestic violence order (“ADVO”). A provisional ADVO was made on 25 September 2018.
The children have not spent time with the father since late September 2018.
The criminal charges and the application for an ADVO were defended by the father and ultimately, after almost two full days of hearing, where the children gave evidence, the children’s school principal gave evidence and the mother gave evidence, the Local Court dismissed the criminal charges and the application for an ADVO. This occurred in mid-March 2019.
By that stage, the father had on 5 October 2018 filed an Initiating Application[7] seeking an urgent recovery order and also final orders for the children to live with the father, spend time with the mother on alternate weekends and for the father to have sole parental responsibility for the children. The mother’s response was that the children should live with her and spend no time with the father.
[7] which was later amended
At the first return date of the October 2018 Initiating Application, the Court ordered the parties to attend a Child Inclusive Child Dispute Conference[8] and listed the matter for an interim hearing on 31 January 2019.
[8] The first available in the Court diary being on 29 January 2019
By consent the interim hearing was vacated and the matter subsequently listed for directions on 12 April 2019. The hearing was adjourned due to the criminal proceedings not yet having been concluded. On 31 January 2019, the Court appointed an Independent Children’s Lawyer.
On 12 April 2019, the Court granted the parties leave to discontinue their respective applications for final orders. Before such leave was granted the father’s solicitor asked the Court to remind the parties that they are obliged to comply with orders, which the Court did. The following background was then provided by the father’s solicitor:
If your Honour allows me to give you a background of the matter. The father was – he was a provisional AVO, and a criminal charge of common assault was placed against him. These matters were defended in the Local Court of New South Wales, in Suburb F. What happened there – since that day, 26 September 2018, the father has not seen the children as a result of the AVO. When those AVO was put in place, we filed an initiating application for a recovery order. We came to court on the first listing, and then we learned that the father subsequently had been charged with a criminal matter. So we adjourned these proceedings in order to have the local court proceedings be determined before we came back to this court.
These proceedings – the criminal charge matter and the AVO were defended. There were almost two full days of final hearing, where the children gave evidence, the principal of the school gave evidence, the mother of the school gave evidence. At the conclusion of this two day hearing, which the last day was on 25 March. The first hearing date was 25 January 2018, and it concluded on 15 March 2019, and the court dismissed the criminal matter. And at the same time, dismissed the AVO. And what – it’s what is before your Honour today. It’s where there are no AVOs, there are no charge where he was found not guilty, and we got current existing orders. And despite this, the father is yet to see the children.
So he hasn’t seen the children since 25 September. He missed the school holidays, Christmas, New Year’s. He has been dragged through the process to defend his innocence in the local court, and here we are today, where the ICL has – and with the permission of him, has put a proposal to get a report as to whether or not the children in summary, are an acceptable risk. In broad terms, and my friend can stand and correct me about that. And what we have here now is that I’ve got instructions where the father has told me, “I can’t do this anymore. I can’t afford paying an expert, because I have drawn all my money from my mortgage. I will be waiting for a year for a family report.
My eldest child is almost 14 years old. He will be 15. I can’t wait for this anymore.” So the instructions that I have, and what the difficulty of what my friend was talking about is that I can’t – I have to give up. I will just leave everything as it is, because I can’t keep fighting anymore. He has been litigating this case since 2011. Final orders were made back in 2016, by consent. A family report was prepared at that time. There was no risk issues raised when that family report was prepared. After the family report, final orders were made where the children spend six nights with the father, and eight nights with mum. No risk issues was raised during that period of time, up until 25 September.
Our case is that the children has been [c]oached by the mother, and that’s how the case was found in the local court. And here we are, this situation, if – and that’s why I’m asking your Honour to reaffirm, and I use that word because the order hasn’t been complied. And to lodge a contravention that would put into it earlier, by lodging a contravention application, we wouldn’t have been able to lodge it because the mother will have had a reasonable excuse by the fact that the father had been charged. So that’s the situation why a contravention application had not been filed, your Honour.
First Contravention Allegation
On 20 April 2019 at 9am at A Street, Suburb B the Respondent failed, without reasonable excuse to the deliver the children, X born in 2005 and Y born in 2007 to A Street, Suburb B New South Wales for the purpose of spending time with the applicant, in breach of Order 2(c) of the Court Orders dated 8 March 2016.
The mother received correspondence from the applicant’s solicitor dated 18 April 2019 which indicated that the applicant was going to attend changeover for the purposes of the children living with him during the school holidays in accordance with the orders. The mother did not make the children available. She ignored the correspondence.
Second Contravention Allegation
On 2 May 2019 at 3pm at C School (D Street, Suburb C, New South Wales), the Respondent failed, without reasonable excuse, to facilitate and/or encourage the children, X born in 2005 and Y born in 2007 (“the children”) to spend time with the Applicant whereby the Respondent collected the children from the C School (“the school”) and hindered/prevented the Applicant to collect the children from the school, in breach of Order 2(b) of the Court Orders dated 8 March 2016.
The mother had picked the children up from school and the children were not made available to spend time with the father in accordance with the orders.
The father was told by the school’s Deputy Principal that the school had made arrangements to have the children picked up earlier by the mother as per the legal advice the school received. The father was also told by the principal that “the children have explained to me that they don’t want to go with you. We have to respect the children’s wishes. We have had legal advice to place them in mother’s care after school instead.”
A text message to the mother sent by the father at about 3.34pm on 2 May, 2019 was received and again ignored. The mother considered such correspondence to be “harassment”.
Third Contravention Allegation
On 8 May 2019 at 3pm at C School (D Street, Suburb C, New South Wales) the Respondent failed, without reasonable excuse to facilitate and/or encourage the children, X born in 2005 and Y born in 2007 (“the children”) to spend time with the Applicant whereby the Respondent collected the children from the C School (“the school”) and hindered/prevented the Applicant to collect the children from the school, in breach of Order 2(b) of the Court Orders dated 8 March 2016.
Earlier in the day the father sent the mother a text message reminding her that the children were due to spend time with him pursuant to the orders. The father “suggested” to the mother that she must authorise the school to release the children to him that afternoon. The mother did not reply to the text message.
When the father arrived at school to pick up the children so they could spend time with him in accordance with the orders, the children were not there. The mother’s evidence is that she most likely picked the children up from school early.
Fourth Contravention
On 16 May 2019 at 3pm at C School (D Street, Suburb C, New South Wales) the Respondent failed, without reasonable excuse to facilitate and/or encourage the children, X born in 2005 and Y born in 2007 (“the children”) to spend time with the Applicant whereby the Respondent collected the children from the C School (“the school”) and hindered/prevented the Applicant to collect the children from the school, in breach of Order 2(a) of the Court Orders dated 8 March 2016.
On the day in question, after instructing his solicitors to write to the school on 10 May 2019, to ensure that the children were made available, the father again attended the children’s school only to again find that the children were not there.
The mother’s excuse for not complying with orders
In her oral evidence the mother said that she believed when the father withdrew his Initiating Application on 12 April 2019 she thought it was all over, and that the “children would be living with me without further harassment” from the father.
When asked whether the reason for not complying with Court orders was because the children were scared, the mother replied that it was not only because they were fearful but because they were at risk. The mother said that the father was physically violent towards the children.
The mother also gave evidence that she could not force the children to spend time with the father and that both of her sons had indicated they would not spend time with the father. The mother’s evidence further is that she has not done anything in 2019 to encourage the children to spend time with the father.
According to the mother between 8 March 2016 and 22 September 2018, she had insisted that the children spend time with the father, notwithstanding that the children had said to her things such as:
I’m afraid of Dad. He hits us. He swears at us. He calls you names…
In addition, the child X has said to the mother “I’d rather kill myself than see Dad.”
As noted earlier, the children and the parents attended a Child Inclusive Child Dispute Conference on 29 January 2019.
During that conference X said that he feels tense and anxious when he sees the father and that the muscles in his neck tighten and he starts to shake. X stated that the father is nice in public but is different at home. Amongst other things, X said that he only feels confident to speak now because of the ADVO, and he said that he had previously lied to the police because he was scared of the father.
Y told the family consultant that the father used to grab him, push him and throw him, and that he had hit him on the cheek where he had had an operation. He said that he was scared of his father but that sometimes he cried at night because he missed him.
Annexed to the affidavit of Mr E, the clinical therapist who had been providing therapy to X “for some three years” is a letter which X wrote dated 28 November 2019. In that letter X wrote:
I don’t plan to visit my dad at the moment, I don’t feel ready, or safe… I suspect my dad will try to harm me once I am behind closed doors with him. I do not wish to go back to my daily punishment which involved being slapped and sworn at.
In Mr E’s opinion X would be at risk of psychological harm if he were to spend time with his father in circumstances other than strictly supervised.
Conclusion
It is important, notwithstanding that it was not the mother’s case, that the Court is satisfied that the mother was aware of her obligations pursuant to the Orders. On 12 April 2019, when their respective applications for final orders were withdrawn, the Court reminded the parties that they are bound by existing orders. The mother was represented by experienced Counsel on the day.
Whilst the mother gave evidence that she thought “it was all over” once the Court granted the parties leave to withdraw their respective applications, the Court finds that the mother was aware of her obligations pursuant to the March 2016 orders and that those orders remained in force.
The mother has again commenced proceedings for a discharge of the March 2016 orders and for the children to spend no time with the father. That application was filed on 15 December 2019, and was referred to in her affidavit filed 6 December 2019.
While the father has been acquitted in respect of the criminal matter and the Local Court did not make an order for an ADVO, this Court is charged with different obligations to those with which the Local Court is charged.
The father is and has been well and truly alive to the issues which the mother raises in her evidence. While he does not accept that the children are in any way frightened of him, and while he considers that the children have been coached by the mother, the Child Inclusive Conference memorandum supports the view that the children are very reluctant to spend time with the father and that they have real concerns. The basis of those concerns is not a matter upon which the Court considers is appropriate to make any findings about at this stage, however, the Court notes the children’s ages and their stated reluctance about spending time with the father to which significant weight is attached. The Court also has before it evidence of Mr E and his opinion about the likely risks to X if he was to spend time with the father.
Taking into consideration all of the evidence before it, the Court finds that the mother has established, on the balance of probabilities, a reasonable excuse for the contraventions.
The Court has the power to vary the parenting orders pursuant to s70NBA. The Court finds that it is in the children’s best interest for there to be an immediate stay of the order requiring them to live with the father. The children have not been spending time with the father since September 2018 in complex circumstances. This contravention application only highlights the complexities of the children’s circumstances and the difficulties they and the parents are facing.
The Court therefore makes orders as set out at the forefront of these Reasons.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Judge Obradovic
Date: 2 March 2020
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