Sellers and Appleby (No. 2)

[2017] FamCA 1142

FAMILY COURT OF AUSTRALIA

SELLERS & APPLEBY (NO. 2) [2017] FamCA 1142

FAMILY LAW – CHILDREN – Contravention – where the mother admits she has not complied with final orders – where the mother submitted that she had a reasonable excuse for her conduct as that conduct was necessary to protect the health and safety of the children – finding that the mother does not have a reasonable excuse for contravening final orders – order that the mother enter into a bond for 12 months.

FAMILY LAW – COSTS – order that the mother pay the father’s costs – order that such costs to be as agreed between the parties and failing agreement to be taxed.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NEA, 70NEB, 70NEC, 117
Family Law Rules 2004 (Cth) r 21.08

Gaunt & Gaunt (1978) FLC 90-468

APPLICANT: Mr Sellers

RESPONDENT: Ms Appleby

FILE NUMBER: MLC 1090 of 2015

DATE DELIVERED: 18 December 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 12 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Matson

SOLICITOR FOR THE APPLICANT: Peter Baker & Associates

THE RESPONDENT: In Person

Orders

1. That upon having found the respondent mother to have contravened Order 3 of the Orders dated 18 October 2017, such contravention found to be within Subdivision E of Division 13A of the Family Law Act 1975 (Cth), within 14 days the mother enter into a bond for a period of 12 months conditional upon complying with all orders of the Court in the meantime.

2. That subject to the bond being entered into, the Application – Contravention filed 23 November 2017 is otherwise dismissed.

3. That the mother pay the father’s costs of and incidental to the Application – Contravention filed 23 November 2017, such costs to be agreed and failing agreement to be assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym  Sellers & Appleby (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: MLC 1090  of 2015

Mr Sellers

Applicant

And

Ms Appleby

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 18 October 2017 final orders (“the final Orders”) were made by Cronin J in respect of the parenting arrangements for the children C, aged 6 years, and D aged 5 years.  Those orders were made following a four-day contested hearing before Cronin J between 18 and 21 September 2017.  Both the mother and the father were represented at the final hearing and the interests of the children were represented by an Independent Children’s Lawyer.

2. At the time of the final hearing the children were living with the mother and had not spent any time with the father for a period of more than 18 months.  That this was so was as a result of allegations that he had sexually abused the children. The allegations are denied by the father. The mother also alleged that she had been subjected to family violence at the hands of the father during the course of the parties’ relationship.  The final Orders made by Cronin J provide that:-

   ·    The parents have equal shared parental responsibility for the children;

   ·    The children live with the mother;

   ·    The children spend time with the father, initially on a supervised basis and after the expiration of a 12-week period during which the father’s time with the children is supervised, as follows:-

   (a)Each alternate weekend from the conclusion of school or kindergarten on Friday to the commencement of school or kindergarten on Monday; and

   (b)From the conclusion of school or kindergarten on Tuesday until the commencement of school or kindergarten on Wednesday each alternate week.

   ·    From the commencement of Term 3 holidays in 2018 the father spend time with the children for one half of the school holiday periods at times agreed and in default, the second half.

3. Orders were also made with respect to the father spending time with the children on special days.

4. Cronin J delivered detailed and comprehensive Reasons for Judgment with respect to the final Orders.  At paragraph 211 of the Reasons for Judgment, Cronin J noted:-

   The evidence of the family consultant, which I accept, is that there is a benefit to these children having a relationship with their father and that the benefit outweighs the risk of harm, including psychological harm… On the evidence of the relationship seen by …the family consultant, I find there is benefit to the children in such a relationship provided they are safe.  I find there is no evidence to suggest there is a risk, let alone an unacceptable one.

5. Order 3 of the final Orders provided as follows:-

   Within 7 days, each parent enrol at the Family Contact Service (as identified by the Independent Children’s Lawyer) and as soon as practicable thereafter, the parents attend all such meetings and/or counselling as required by the Family Contact Service over a period of 12 weeks for a supervised program for the introduction/reintroduction of the children to the father and if necessary (and possible), with the assistance of Family Consultant [Mr E].

6. By Application – Contravention filed 23 November 2017 the father alleges that the mother has failed to comply with paragraph 3 of the final Orders as she has not completed the applications necessary to facilitate enrolment of the parties with the Family Contact Service.  The father relied upon his affidavit filed 23 November 2017 in support of his application.  

7. As a result of the alleged contravention of the final Orders by the mother, the father has not yet commenced spending supervised time with the children as ordered by Cronin J. 

8. These are my reasons for judgment with respect to that application.

The Hearing

1. The Application – Contravention was listed before me on 11 December 2017 in a Judicial Duty List.  That day there was no appearance by the mother.  Instead, her father attended Court and informed the Court that his daughter was unwell and unable to attend Court.  The mother’s father handed to the Court three documents on behalf of the mother, those documents being:-

   ·    A letter from the mother dated 9 December 2017 requesting a transfer of the proceedings to a court in B Town to reduce the burden and cost of travel to Melbourne for the purposes of the proceedings;

   ·    A letter from Ms F, Psychologist dated 5 December 2017 regarding treatment being provided to the mother; and

   ·    A letter dated 6 December 2017 from Ms G, social worker who has been providing support to the mother.

2. As to the mother’s request for a transfer of the proceedings I informed her father that even were such application made, the Family Court of Australia does not have court facilities in the B Town district.  As such it will be necessary for the mother to attend court events in the Melbourne registry of this Court which is the nearest registry to her home.

3. The mother’s father submitted that the mother was unwell and in support of that submission relied upon the letter from Ms F.  Ms F states in her letter dated 5 December 2017 that the mother is:-

   …deeply distressed about the outcome of the recent Family Court decision allowing her ex-partner…contact with their two daughters due to his alleged sexual abuse of one of the daughters.  [The mother] also alleges that [the father] sexually assaulted her when they were living together.

4. The allegations made by the mother against the father were matters that were the subject of the proceedings before Cronin J and addressed by him in his Reasons for Judgment.  Ms F’s letter also states that the mother is suffering extreme levels of anxiety about the prospect of seeing the father and attending Court. 

5. Counsel for the father indicated that absent the mother’s compliance with Cronin J’s orders it would be necessary to seek a warrant to issue for the mother to attend Court to answer the Application – Contravention.  I informed the mother’s father, Mr H Appleby, of the possibility of such order issuing in the event that the mother does not comply with the final Orders or indeed attend Court to answer the father’s application. 

6. Given the mother’s alleged difficulties, I adjourned the proceedings to 2.15pm on 12 December 2017 to enable the mother to consider her position before hearing any application as to the issue of a warrant.

7. At the adjourned hearing on 12 December 2017 the mother attended Court personally, supported by her father, to respond to the Application – Contravention.

8. Pursuant to s 70NAC of the Family Law Act1975 (Cth) (“the Act”) a person is taken to have contravened an order under the Act affecting children if and only if he or she has intentionally failed to comply with the order or has made no reasonable attempt to comply with the order. The onus is on the applicant to establish on the balance of probabilities that the order has been contravened.

9. Section 70NAE of the Act sets out the circumstances in which a person may be taken to have a reasonable excuse for contravening an order. Those circumstances include if a 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 the period during which the child did not spend time with the person was not longer than was necessary to protect the health or safety of the person.

10. Prior to the commencement of the hearing I informed the parties of the procedure for the conduct of the contravention hearing as set out in Rule 21.08 of the Family Law Rules 2004 (Cth).

11. I also provided to the mother a copy of s 70NAE of the Act and provided her time to read and consider those provisions.

12. At the commencement of the hearing I informed the mother of the allegations made by the father and asked her whether she wished to admit or deny the allegation.  The mother stated that she admitted the allegation that she had not signed the application necessary to enrol at the Family Contact Service as provided in paragraph 3 of the final Orders.  The mother submitted that she had a reasonable excuse for her conduct as that conduct was necessary to protect the health and safety of the children.  The mother gave evidence under oath as to the circumstances which she says give rise to a reasonable excuse.

The Mother’s Evidence

1. The mother’s evidence was that she maintains concerns for her daughters’ well-being after observing more sexualised behaviour in the child C, who is aged 6 years.  The mother’s evidence was that she had recorded a conversation with her daughter in which it is alleged that the child has made further disclosures regarding the father.  The mother did not state what was disclosed by C.  The mother stated that she had informed Family Services of the alleged disclosures and that a report had been made to Child Protection.  The mother stated that that notification was made prior to her receipt of the father’s Application – Contravention.  The mother also stated that her own mental health was affected as a result of the final Orders and that this was detrimental to the children’s well-being. 

2. The mother produced no evidence to the Court to support the allegation that there had been further disclosures made by the children or that such matters were the subject of any intervention or investigation by the Department of Health and Human Services (“the Department”).  The mother could not recall when she reported the alleged disclosures to the Department.

Discussion

1. It was submitted on behalf of the father that the mother has not made out a case that she has a reasonable excuse for contravening the final Orders.  Further, it was submitted that the mother’s failure to comply with the final Orders was anticipated by Cronin J.  In support of that submission I was referred to parts of his Honour’s Judgment where he expressed his concerns as to the mother’s response to orders that the father spend time with the children.  At paragraph 186 of the Reasons for Judgment Cronin J noted:-

   The family consultant acknowledged that the mother would require considerable ongoing professional and therapeutic support and how she could best support the children in any form of relationship with their father bearing in mind her belief which was unshakeable.  There is little the court can do about that other than hope that the mother reads these reasons from an objective point of view. 

2. At paragraph 232 of the Reasons for Judgment Cronin J noted:-

   …I accept that the mother will have difficulty accepting these orders so I shall provide an opportunity under a liberty to apply clause for either party to return quickly in the event of encountering any implementation difficulty. 

3. Further, at paragraph 235 his Honour noted:-

   …It is unfortunate that I cannot expect the mother to cooperate even in this situation involving the children who may be confused.  But in the event of any problem of a serious nature which might put the reintroduction at risk, I will permit a proper application to be made on short notice.

4. It is against the backdrop of those findings that this matter comes before the Court.  It is submitted on behalf of the father that in circumstances where there is no evidence of any new disclosure and where the mother cannot confirm when the alleged disclosure was made, when she reported the matters to Child Protection and where there is no evidence of any action being taken by the Department, there should be no finding as to reasonable excuse. 

5. The mother’s position throughout the hearing before me was that she would not sign the necessary applications to enable enrolment in the Family Contact Service in accordance with the Orders. 

6. The mother’s allegations of a recent disclosure of sexual abuse by C are extraordinary, particularly given that neither C nor D has spent any time with the father for a period of almost two years.  They were aged approximately four and three years respectively when they last spent time with the father.  The mother’s oral evidence that she has made recordings of those alleged disclosures is concerning, given the history of this matter as contained in Cronin J’s Judgment.  The allegations of the mother as to alleged sexual abuse of the children by the father were matters dealt with by Cronin J in his Judgment dated 18 October 2017.  It would appear that the mother simply does not accept the findings of the Trial Judge. 

7. In the decision of Gaunt & Gaunt (1978) FLC 90-468 the Full Court considered the positon of a party who does not agree with the decision of the Trial Judge. There the Court held at [77,398] that:-

   The essential question is this – can a party who does not agree with the Court’s decision about access, defy the order and then plead that in preventing access, his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child?...To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the Court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.

8. The mother in this case refuses to enrol with the Family Contact Service due to her view that permitting the father to spend time with the children, even supervised time, would be contrary to the welfare of the children. Those matters were considered and determined by Cronin J. The appropriate manner in which to challenge the Orders is by appeal; the mother has not filed an appeal. The mother’s subjective view as to the rights and wrongs of Cronin J’s decision is not a basis upon which it could be said she has a reasonable excuse for contravening the final Orders. To permit the mother to maintain that position would undermine the provisions of the Act, the trial process so recently concluded and the final Orders made following the hearing.

9. Having regard to the findings of Cronin J with respect to the allegations of sexual abuse and to the evidence of the mother given this day, I do not accept the mother’s submission that she has a reasonable excuse for contravening the order.

10. Accordingly, I am satisfied that an order has been contravened within the meaning of s 70NAC of the Act and further that the respondent mother does not have a reasonable excuse for such contravention within the meaning of s 70NAE of the Act.

11. Having been satisfied that the mother has committed a contravention of the final Orders and has not proved that she had a reasonable excuse for that contravention, the provisions of Subdivision E of Division 13A of Part VII of the Act apply. Section 70NEA(2) of the Act provides that if a Court has not previously made an order imposing a sanction or taken action in respect of a contravention then Subdivision E does apply.

12. Section 70NEA(4) of the Act provides that the relevant subdivision does not apply if when the Court is dealing with the contravention, it is satisfied that the mother has behaved in a way that shows a serious disregard for her obligations under the primary order. Arguably the mother has shown such disregard in circumstances where she readily concedes that at this time she has no intention of complying with the orders of the Court.

13. However, in circumstances where the mother is currently undertaking psychological counselling to assist and support her in coming to terms with the outcome of the final hearing and the decision made by Cronin J, I am not satisfied that it can yet be said that her behaviour is such as to show a serious disregard of her obligations under the orders.  I accept that the mother has been distressed by the outcome of the proceedings and that distress has likely influenced her conduct in refusing to comply with the final Orders that she enrol in the Family Contact Service.  Nonetheless, if such behaviour continues, notwithstanding this proceeding and the findings contained herein, it is likely that any further application would result in such finding.

14. I am asked by the father to make orders requiring the mother to enter into a bond in accordance with the provisions of s 70NEB(1)(d) of the Act.

15. Section 70NEC of the Act provides that a bond is to be for a specified period of up to two years and may be ordered with or without surety and with or without security.

16. The father sought that I require the mother to enter into a bond for a period of two years on the condition that she complies with orders of the Court.  I have informed the mother that the bond is sought as a means of ensuring her compliance with the final Orders and that if a further breach in the future was found to have occurred the consequences of such breach would provide the Court with powers far more serious, including fines and a sentence of imprisonment. 

17. The mother is on notice as to the potential future consequences of a failure to comply with the final Orders.

18. In circumstances where the mother appears before the Court without legal representation I propose to require that she enter into a bond on the condition that she complies with the final Orders, such bond to be for a period of 12 months.  I will require that the mother execute and return the bond to the Registrar within 14 days.  This will afford the mother opportunity to obtain legal advice as to the effect of the bond.  If she does not return the bond directions will be made to reconvene the Court to determine the matter further.

Costs

1. At the conclusion of the hearing the father sought an order that the mother pay the costs of and incidental to the proceedings. Section 117(1) of the Act provides that in proceedings in this Court each party shall bear their own costs. The exception to that rule is where the Court is satisfied that there are circumstances that justify a departure from that principle.

1. Further, in contravention proceedings pursuant to Divisions 13A of the Act there is a specific provision in the powers of the Court to make an order for costs if the Court is satisfied that someone has contravened the order.

2. Section 117(2A) of the Act sets out the matters to be considered in determining an application for costs. Having regard to those provisions, it is clear that the mother has been wholly unsuccessful in the proceedings; I have found that the mother has contravened the final Orders.

3. The mother submitted that she is in parlous financial circumstances and is reliant upon Centrelink payments for her support and for the support of the children.  There is no evidence before me as to the father’s current financial circumstances.  Impecuniosity is not a bar to a costs order being made.

4. Having regard to the conduct of the mother in these proceedings, I am satisfied, notwithstanding her financial circumstances, that an order for costs is appropriate.

5. The father seeks an order for costs in the sum of $4,900. Due to the non-attendance of the mother at Court on the listed hearing day the father has incurred costs of briefing counsel on two days, being 11 and 12 December 2017, albeit for summary hearings taking less than three hours. Schedule 3 of the Family Law Rules 2004 (Cth) provides at Item 203 an allowance of between $248.32 and $1,163.59 for junior counsel’s fees. In addition attendance at a conference (Item 202) can be up to $395.86. Having regard to the Schedule, it would appear that the amount sought by the father exceeds that which he would be entitled to pursuant to Schedule 3 of the Act.

6. In the circumstances I propose to make an order that the mother pay the father’s costs of the application, such costs to be as agreed between the parties and failing agreement to be assessed.

7. The order that I make is as follows:-

   1.That upon having found the respondent mother to have contravened Order 3 of the Orders dated 18 October 2017, such contravention found to be within Subdivision E of Division 13A of the Family Law Act 1975 (Cth) within 14 days the mother enter into a bond for a period of 12 months conditional upon complying with all orders of the Court in the meantime.

   2.That subject to the bond being entered into, the Application – Contravention filed 23 November 2017 is otherwise dismissed.

   3.That the mother pay the father’s costs of and incidental to the Application – Contravention filed 23 November 2017, such costs to be agreed and failing agreement to be assessed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 18 December 2017

Associate:

Date:  18 December 2017