Seaward & MacDuff
[2011] FamCA 1041
•20 December 2011
FAMILY COURT OF AUSTRALIA
| SEAWARD & MACDUFF | [2011] FamCA 1041 |
| FAMILY LAW - CHILDREN – Contravention Application – Father asserted three contraventions by the mother where it was alleged the mother did not facilitate telephone communication between the father and the children in line with orders of the Court – Where orders were initially delivered orally – Where first asserted contravention occurred before perfected orders were received by the parties – Where the actions taken by the mother in relation to the second and third asserted contraventions were sufficient and reasonable – Application dismissed. |
| Family Law Act 1975 (Cth) ss 70NAE, 70NAF |
| Childers & Leslie (2008) FLC 93-356 Jets & Maker [2010] FamCAFC 55 Taikato v R (1996) 186 CLR 454 The Marriage of Lutzke (1979) Fam LR 553 |
| APPLICANT: | Mr Seaward |
| RESPONDENT: | Ms MacDuff |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Samuels |
| FILE NUMBER: | SYC | 2177 | of | 2011 |
| DATE DELIVERED: | 20 December 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 20 December 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | David H Cohen & Co |
| COUNSEL FOR THE RESPONDENT: | Ms Messner |
| SOLICITOR FOR THE RESPONDENT: | Abrams Turner Whelan |
Orders
That the applications in a case filed by Mr Seaward (“the father”) on 10 April 2011, 22 July 2011 and 24 August 2011 are withdrawn and dismissed.
The contravention application filed by Mr Seaward on 29 August 2011 is dismissed.
In relation to the contravention application filed by Mr Seaward on 12 October 2011 to the extent that it is alleged Ms MacDuff (“the mother”) failed to comply with Order 7 dated 31 August 2011 on 14 September 2011, 21 September 2011, 25 September 2011, 28 September 2011, 2 October 2011, 5 October 2011 and 9 October 2011 the application is withdrawn and dismissed.
I give leave to Mr Seaward to orally amend his contravention application filed 12 October 2011 to include particulars of two alleged breaches of Order 7 dated 31 August 2011 on 11 September 2011 and 18 September 2011 as set out below.
a.Ms MacDuff it is alleged that in contravention of Order 7 dated 31 August 2011 you failed to facilitate telephone communication between the children B and J and the father on 4 September 2011 without reasonable excuse.
b.Ms MacDuff it is alleged that in contravention of Order 7 dated 31 August 2011 you failed to facilitate telephone communication between the children B and Z and the father on 11 September 2011 without reasonable excuse.
c.Ms MacDuff it is alleged that in contravention of Order 7 dated 31 August 2011 you failed to facilitate telephone communication between the children B and J and the father on 18 September 2011 without reasonable excuse.
That the contravention application filed by Mr Seaward on 12 October 2011 is dismissed.
That the mother’s costs of the abovementioned contravention applications are reserved.
These proceedings are docketed to Justice Ryan.
On the applicant father’s application the final proceedings are expedited.
The final application is listed before me at 10.00 am on 21 May 2012 for four days.
I DIRECT that the applicant pays the hearing fee or obtains a waiver of it by 3 February 2012.
I DIRECT that both parties file and serve all affidavits upon which they rely by 6 April 2012.
The Court Notes the parties may rely upon one affidavit per witness.
Within seven days if reasonably practicable the Independent Children’s Lawyer shall apply to Legal Aid NSW for funding for a single expert child and adult psychiatrist to be appointed to investigate and report on matters in relation to the parties and the children.
That the father’s application for interim orders filed 29 November 2011 is listed for interim hearing before Dawe J on 2 February 2012 for half a day.
That the respondent file and serve a Response to the application in a case referred to above within 21 days.
That the father file and serve any updating affidavit and/or other affidavits relied upon in the interim hearing by 20 January 2012.
The final applications are listed for further directions at 9.30am on 2 February 2012.
Liberty to the parties and their lawyers to apply for further directions on seven days notice.
IT IS NOTED that publication of this judgment under the pseudonym Seaward & MacDuff has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2177 of 2011
| Mr Seaward |
Applicant
And
| Ms MacDuff |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons were delivered orally.
These proceedings concern a contravention application filed by Mr Seaward (“the applicant”) on 12 October 2011 in which it is sought that Ms MacDuff (“the respondent”) be dealt with for a contravention without reasonable excuse of parenting orders.
The subject orders were made on 31 August 2011 in the Federal Magistrates Court. They relate to the parties’ three children, B born in December 1998, J born in February 2004, and Z born in September 2005. The orders of particular relevance to this application are Orders 6 and 7.
The orders address the children’s living arrangements on an interim basis. The effect of the orders dated 31 August 2011 is that the children reside with the respondent and are able to communicate with the applicant only in accordance with Order 7; that is by telephone as therein described.
The parties relied upon their affidavit evidence and in relation to the respondent, she was also cross-examined.
The applicable law – Contravention Applications
The consequences of a failure to comply with orders that affect children are set out in Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).
For contravention applications, the Court may find that a contravention is alleged to have occurred but is not established (Subdivision C); or that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).
The meaning of “contravened an order” is found in s 70NAC of the Act which is set out below:
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.
It is subparagraph (a) with which we are concerned in this case.
The onus of proof rests on the applicant to prove that the respondent contravened an order affecting children. The standard of proof is on the balance of probabilities (other than when the Court is considering sanctions for serious contraventions) having regard to the gravity of the allegation. The contravention must be shown to be intentional though not requiring proof of contumacious behaviour. See s 70NAF of the Act and also Jets & Maker [2010] FamCAFC 55 per O’Ryan J at par 83.
If the contravention is proved, the onus shifts to the respondent to establish on the balance of probabilities a reasonable excuse for non compliance.
The meaning of “reasonable excuse” is found in s 70NAE of the Act which is set out below:
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
I pause to observe in relation to the contravention alleged on 4 September 2011, the respondent says she had not yet received a copy of the orders made by the Federal Magistrate on 31 August 2011 and says that she did not understand the obligations imposed by those orders. To a lesser degree, she also relies on her lack of understanding in relation to the two counts alleged to have occurred on 11 September and 18 September 2011, even though they occurred after a sealed copy of the orders was issued.
Returning to section 70NAE:
(3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a)the respondent believed on reasonable grounds that the actions constituting 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).
(5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order 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 was necessary to protect the health or safety of the person referred to in paragraph (a).
(6)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
…
Section 70NAE was considered by Warnick J in Childers & Leslie (2008) FLC 93-356. At par 22, Warnick J said:
As earlier seen, 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...
With these remarks, I agree. They are a statement of the law which applies in this case.
Warnick J in Childers & Leslie went on to explain that the test of reasonableness is not simply whether viewed from some ill-defined concept of fairness or reasonableness, a person’s actions can be excused. The position, as his Honour explained, with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is similar to that of terms of like generality, for example “any just cause” used elsewhere in the Act. See for example in The Marriage of Lutzke (1979) Fam LR 553.
In Taikato v R (1996) 186 CLR 454, the High Court (per Brennan CJ, Toohey, McHugh and Gummow JJ), in a different context, considered the meaning of reasonable excuse in relation to which their Honours said:
The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception… (page 464, footnotes omitted)
…
However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence. That being so, the courts must give effect to the will of parliament and give effect to their own ideas of what is a “reasonable excuse”… (p 466)
The Alleged Contraventions
The relevant order is Order 7 made 31 August 2011, which provides that:
The children initiate and have such telephone communication with the Applicant pursuant to paragraph six (6) herein as they desire and otherwise on two occasions each week, with one such occasion to be on Sundays and the other on a midweek day AND FURTHER the Respondent facilitate the children communicating by telephone with the Applicant and she may monitor, but not participate in, such communication.
Perhaps in the interests of clarity, it is useful to also record Order 6 which is as follows:
Subject to paragraph seven (7) herein the children [B], born […] December 1998, and [J], born […] February 2004, and [Z], born […] September 2005, (“the children”) communicate with the Applicant by telephone only (and not by text message, email, or otherwise in writing or by any other electronic means).
It would appear that the orders made on 31 August 2011 were pronounced orally. They were produced in writing on 5 September 2011 (see Exhibit A), at which time, they were forwarded by the Federal Magistrate’s chambers to the parties.
The evidence in this case establishes that the day after the orders were made, that is, on 1 September 2011, the applicant sent B a text message. I pause to observe this would appear to be in contravention of Order 6 made 31 August 2011, but nothing turns on that at this point.
On 1 September 2011, a conversation then took place between B and the respondent. It is set out in full at paragraph 161 of the respondent’s affidavit sworn 20 December 2011. In the conversation, B told her mother that she would not be telephoning the applicant because “He sent me a text telling me to have a good life without him, so I will”. Upon enquiry from the respondent, she learned that B had received the text message at about 9.10 am that day. B showed the respondent the text message and said to her, “I want nothing to do with him and no Court in the country can make me.”
The respondent read the message and the evidence is that it was to the following effect:
I’m not allowed to see u any more [B] because everyone thinks I made it all up. They want me in jail. You and I know the truth. Have a great life without your dad.
This is, for a child B’s age, a perplexing message and it is not unreasonable that B interpreted the message in the manner described in paragraph 161 of the respondent’s affidavit. It would have done nothing positive to advance the notion that the applicant planned to maintain contact with B. The point being, the words “Have a great life without your dad” appear to have been interpreted by B as him telling her there would be no further contact between them. Her emphatic response is as recorded in paragraph 161 of the respondent’s affidavit.
The applicant’s evidence in relation to the first breach alleged on 4 September 2011 is “that only [Z] spoke to him”. Z told the applicant “daddy [B] and [J] won’t speak to you”.
The respondent’s evidence is found at paragraphs 180 and 181 of her affidavit. She agrees that Z alone spoke with the applicant on 4 September 2011.
At paragraph 179 of her affidavit, the respondent said that she believed the effect of the orders made on 31 August 2011 was that the children would have telephone communication with the applicant, should they desire it, not less than twice a week; mid-week and on Sunday. On its face, the order is perhaps to the lay person a little confusing and would require careful consideration to fully appreciate its gravamen. For the parties to have the oral recitation but not the written version of the orders, it is reasonable, having regard to their terms, for each of them to have a degree of uncertainty about the obligations respectively imposed upon them.
No criticism is made by the Court of the applicant, after the orders were orally expressed on 31 August 2011, then sending a text message to B. I infer he did so because he was confused about the nature of the orders and it is probably only upon receiving the perfected order that he was able to fully appreciate the gravamen of those orders.
I make similar findings in relation to the respondent’s understanding of the orders prior to the perfected orders being received by her.
Nonetheless in her oral evidence the respondent explained that on 4 September 2011 she attempted to establish the children’s views in relation to telephone contact with the applicant. She made suggestions to them about what they might discuss with him. She made the telephone available and timed these conversations to coincide with them not being distracted and more likely to be amenable to telephone contact on the relevant day. She did this even though she believed that she was only required to facilitate telephone communication if this is what the children wanted.
I am satisfied that as at 4 September 2011 the respondent did not understand the obligations imposed upon her by Order 7 dated 31 August 2011 and that alleged contravention will be dismissed.
The next incident occurred on 11 September 2011. The applicant’s evidence on this matter is as follows:
On Sunday 11th September I received a brief phone call. [J] spoke to me and told me that [Z] and [B] would not speak to me. This was the second clear breach of order 7 of 31/08/2011. There has been no positive action on behalf of the mother to facilitate any of the courts [sic] wishes despite lengthy discussion in these matters when they were made.
By then, the respondent had received the perfected order. The order shows on its face that she was legally represented. Exhibit A was tendered to show the date upon which the order was received. It also shows that the respondent’s solicitor forwarded the sealed copy of the order to her. Attached to the order is an annexure which sets out the obligations attached to the various orders made on 31 August 2011. These include a part headed, “Legal Obligations”.
The respondent says that she did not read that document. Submissions were made to the effect that this would come as no surprise to the Court and that the Court would accept that people rarely read those documents. I do not accept this submission and I do not accept that the respondent’s actions in failing to read a document attached to Court orders were reasonable. It was reasonable for her to not only read the documents, but also to take advice, if she was uncertain about the effect of the orders, from those representing her. Anything less would be unreasonable.
Lest it be thought that the order is so complex that without legal advice a lay person would be unlikely to understand its import, I reject that probability. The respondent has paid employment in a responsible position. Had she turned her mind to the ordinary meaning of the words and given adequate consideration to Order 7, I am satisfied she was quite capable of accurately interpreting and understanding the order made by his Honour.
Turning then to what the respondent did in relation to facilitating the two children who did not speak with the applicant to speak with him.
Firstly in relation to B, the reasonableness of the respondent’s actions need to be interpreted in the context of the applicant’s text message to B on 1 September 2011 and the child’s response to it.
The respondent (and I do not need to repeat this in full) spoke to B, asked her whether she would like to speak to her father. She did this at a time when B was not distracted by other matters, and was more likely to be in a positive frame of mind about speaking to him. The respondent suggested topics of discussion that B might use in her discussion with her father. The telephone was made available and the respondent did not interfere when, on 11 September 2011, J spoke with his father. B simply refused to speak to the applicant.
In the context of the 1 September 2011 text message and the child’s age, the actions taken by the respondent were reasonable and sufficient to fulfil her obligations under the orders. I make similar observations in relation to the contravention alleged insofar as it applies to B on 18 September 2011.
Neither J on 18 September, nor Z on 11 September, appears to have been privy to the text message that B received from the applicant. It follows that the text message is irrelevant to the reasonable excuse claimed by the respondent for those children on those dates. But we see, in relation to these two children on the respective dates, a similar approach adopted by her. Namely, she asked the children whether they want to speak to the applicant, ensured that they were in a positive frame of mind, ensured that they were not distracted by other things that they might want to do, suggested topics for discussion, made the telephone available and did not interfere when the child, who did agree to speak to the applicant, spoke to him. Nonetheless the children refused.
It is not the law, as was intimated during cross-examination, that a respondent, in these circumstances, is to force a reluctant child to do what is required by the orders. One expects a reasonable attempt. In this case, persuasion and gentle guidance in the hope the children would be more amenable in the face of known reluctance to make, in this case, the telephone calls is the approach adopted by the respondent.
Whilst, with the benefit of hindsight, a view might be expressed that a different strategy could have been taken or perhaps a greater degree of coercion used, the test here is one of reasonableness and in the circumstances of this case, the actions taken by the respondent in relation to the two remaining accounts on 11 September 2011 and 18 September 2011 were sufficient and reasonable, and those counts will also be dismissed.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 20 December 2011.
Associate:
Date: 1 February 2012
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