SHILL & COVEL

[2016] FamCA 767

FAMILY COURT OF AUSTRALIA

SHILL & COVEL [2016] FamCA 767

FAMILY LAW – CONTRAVENTION – Contravention application – Where a child is under the age of 2 years – Where a paid supervisor was required for visits – Where make-up time has been offered – Where the child has been unwell.

Family Law Act 1975(Cth)

APPLICANT: Mr Shill

RESPONDENT: Ms Covel

FILE NUMBER: SYC 7141 Of 2014 2014

DATE DELIVERED: 29 February 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 10 February, 17 February 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: In person

Orders

1. The Court notes that a finding has been made that the mother contravened parenting orders on two occasions.

2. The Court notes that the father has sought not to exercise time with the child on many occasions.

3. The Court notes that the mother has been found to have a reasonable excuse for failing to comply with an operative parenting order on a number of specific occasions.

4. The court has determined it is not appropriate in the circumstances of this case to impose a penalty upon the mother in relation to the two contraventions of the parenting orders which the father has established.

5. The father’s Contravention Application filed 27 October 2015 is otherwise dismissed.

6. The Court notes that interim parenting orders were made on 17 February 2016 during the determination of the father’s Contravention Application.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shill & Covel 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 7141/2014

Mr Shill

Applicant

And

Ms Covel

Respondent

REASONS FOR JUDGMENT

Introduction

1. Before the court for hearing is a Contravention Application filed by the father on 27 October 2015. In that application he details 10 counts of alleged contravention. Two of those allegations were withdrawn at the hearing, and eight were heard by the Court.

2. The mother largely agrees that the father did not spend time with the parties’ child as he alleges (she does not concede a contravention on 3 April 2015), however, she says she has a reasonable excuse for each of the alleged contraventions.

3. Each of the parties is self-represented.

4. The mother concedes she had knowledge of the orders the father says were contravened. She concedes she has been served with the father’s contravention application and supporting affidavit.

5. The father relied upon the following documents:

   ·Contravention Application filed 27 October 2015.

   ·Affidavit in support of the contravention application sworn by the father and filed 27 October 2015.

6. The mother relies on the following documents:

   ·Affidavit sworn by the mother and filed 5 February 2016.

   ·Affidavit sworn by the mother and filed 8 February 2016.

   ·The mother tendered a copy email dated 15 September 2015.

the legal position.

1. To establish a reasonable excuse for contravening an order the mother must satisfy the court she has met the requirements of section 70NAE of the Family Law Act. That section is as follows:

FAMILY LAW ACT 1975 - SECT 70NAE

Meaning of reasonable excuse for contravening an order

(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.

(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).

(7) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:

(a) the respondent believed on reasonable grounds that the action constituting the contravention 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 that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

1. I have underlined sub-section (5) as that is the provision which has application to each of the counts of contravention brought against the mother in this case. The mother’s reasonable excuse for disobeying the relevant order has been framed to satisfy this sub-section.

Background Facts

1. The parties are the parents of a male child B (the child) who was born in 2014. The child is now almost 2 years of age.

2. The father lives at Suburb F, Sydney NSW.

3. The mother lives at Suburb H, J Region NSW.

4. There is considerable distance between the parties’ residences and the parties’ estimate the driving time (out of peak hours) is about 1.5 hours.

The Issues

1. The father alleged contraventions of parenting orders on the following dates:

   (a)14 January 2015.  Contravention of Order 2 made 19 December 2014.  Access not provided pursuant to the order.

   (b)26 January 2015.  Access not provided pursuant to Order 2 made 19 December 2014.

   (c)6 March 2015.  Access not provided pursuant to Order 2 made 19 December 2014.

   (d)18 March 2015.  Time for the child with the father not provided pursuant to Order 2 of 19 December 2014.

   (e)3 April 2015.  Time for the child with the father not provided pursuant to Order 2 made 19 December 2014.

   (f)17 July 2015.  Time for the child with the father not provided pursuant to Order 3 made 15 April 2015.

   (g)20 September 2015.  Time for the child with the father not provided pursuant to Order 2 made 14 August 2015.

   (h)26 September 2015.  Time for the child with the father not provided pursuant to Order 2 made 14 August 2015.

2. In response to those counts the mother says as follows:

Contravention – 15 January 2015

1. The mother says that on 13 January 2015, the day before the alleged contravention, she sent an email to the father requesting that he agree to vacate the scheduled time for the child to see him on 14 January 2015.  She says the father agreed to that request.  The mother offered make up time on Tuesday or Thursday.  The father declined that offer stating that he would take make up time on the following Sunday.

2. The orders of 19 December 2014 provided that the father spend time with the child each Monday, Wednesday, Friday and Saturday from 4.00 p.m. to 6.00 p.m. in the presence of a nanny approved by the mother and familiar with the child’ needs.  The mother says that Sunday was not a day where she had a nanny available, however, she was prepared to arrange supervision for the following day (15 January 2015 being a Thursday).  The father declined that offer on the basis of he being unable to free himself from work.  To that declining the mother says that it was contrary to the evidence the father provided to the Court that he was available at all times to spend time with the child.

3. The mother was cross-examined by the father about this occasion of alleged contravention.  During the cross-examination the father agreed that he had consented to the mother vacating the subject time for the child to spend with him on 14 January 2015 and that she had offered make up time on either a Tuesday or a Thursday. 

4. Given that the father consented to the vacating of the subject date for his time with the child to take place on 14 January 2015 I find that this contravention is not made out.

Contravention – 25 January 2015

1. In relation to this contravention the father alleges that he was not provided with any time pursuant to the orders on 26 January 2015.  In relation to this count the mother says that the orders of 19 December 2014 were silent as to who was to pay for the supervision of the father’s time with the child.  The mother said she paid for the nanny for two days per week until March 2015 and until April 2015 she paid for the nanny for four days per week.  26 January 2015 was Australia Day and it is a public holiday in Australia.  There is no issue between the parties that that is the case.  The mother says that on that day she had no nanny available to supervise the child.  She consequently offered the father make up time, however, given that there was an issue between the parties as to who was to pay for a nanny, the mother was unable to provide specific evidence of the offer she made.  The mother was cross-examined about her defence which was that it was not possible to comply with the order given that she was unable to obtain the services of a nanny to supervise the father’s time. 

2. The mother agreed that she had hired a nanny every Wednesday, Thursday and Friday during that period.  She agreed that she had paid for the nanny’s services, however, she acknowledged that the father had paid on a few occasions (the inference being very few occasions).

3. Neither party relied upon any email exchanges to support this ground.  Given the circumstances of the mother not being able to provide a nanny, the evidence in relation to which I accept, I find this contravention is not made out. 

Contravention – 6 March 2015

1. In relation to this date the mother concedes that she did not provide the child to the father for his time.  Annexed to the father’s affidavit and marked as “F” is an email chain which commenced with an email dated 6 March 2015 at 12.02 pm from the mother to the father.  It commences by her saying that she did not feel comfortable with access going ahead that day given “you are sick”.  The mother said she had tried to communicate with the father at earlier times about this day, such communication by four text messages to which there was no response.  This situation arose because the father had cancelled his “court ordered parenting course” on 5 March 2015, advising the course operators that he was too sick to attend.  The providers of the course had contacted the mother and advised of the cancelled attendance by the father. 

2. The mother set out her concern that if the father was still sick it would be inappropriate to expose the child to contracting such an illness if his illness was communicable.  The email refers to a text which she had received from the father saying “I will be seeing the child today”.  No detail of the illness the father had suffered was provided.  She pointed out it would be far better for the child not to be exposed to any illness which he could catch.  She pointed out that the child had suffered “hand, foot and mouth” illness twice in the past month and she had subsequently contracted the virus. 

3. In the cross-examination of the mother by the father about this incident the father informed the Court that he had seen his doctor the day before this scheduled time for him to spend with the child and the doctor had told him he concluded the father was “physically and emotionally exhausted and his immune system was very low”.  He prescribed sleeping pills and complete rest.  The father conceded he did not provide details to the mother of his illness on that occasion. 

4. The father replied to the mother’s email at 2.30 p.m. on 6 March 2015.  He commenced it by the following words:

   I don’t reply to your presumptuous texts the same way as I don’t reply to your presumptuous emails (I have indicated this many times yet you still think I am actually going to respond to them.  I don’t even read them let alone respond to them so it’s just your time you are wasting in writing that rubbish).  I do not engage or even read texts about non-essential irrelevant issues that are not regarding the care of the child.

5. I regard the content of that email as offensive and it continues on in an offensive manner, in my view.  There are further emails on this topic, the content of which I will not repeat.

6. Given the circumstances I find that the father has not made out this count.  I find that the mother had a reasonable excuse for contravening the order in that it was reasonable for her to believe that not allowing the child and the father spend time together on that day was necessary to protect the health of the child.

Contravention – 18 March 2015

1. This date, the mother says was a day when the child had an operation on his tongue. There is no issue that is the case. The child underwent a general anaesthetic.  The father attended at the hospital and saw the child and spent time with the child at the hospital.  The child was to remain in the recovery area of the hospital following the operation, however, the mother says he became very distressed.  He was discharged, apparently earlier than the hospital would otherwise have wished it to occur, into the mother’s care allowing her to take the child home.  The mother told the Court she had given the nanny the day off because she in fact had the day off work to take the child to hospital.

2. The mother was cross-examined about this occasion.  During the cross-examination there was no issue that this occasion was the time the mother said the child underwent an operation.  The mother said that she had sent an email to the father, she had offered the father make up time on the child’s birthday and further suggested that he attend a small birthday party that was being held for the child.  The mother tendered records of the correspondence between the parties relevant to this matter which marked as exhibit M3. 

3. Given the circumstances of the child undergoing a medical procedure on that day I find that the mother has made out a reasonable excuse in establishing that it was necessary to protect the health of the child to take the action she did.

Contravention – 3 April 2015

1. The father alleges that the mother cancelled his time with the child on this day because it was a public holiday.

2. The mother says that she was unable to provide time for the child to spend with the father on this occasion as it was a public holiday and she did not have a nanny available to supervise the father’s time.  The mother drew the Court’s attention to the email chain between the parties which appeared on page 29 of the father’s affidavit.

3. On 31 March 2015 the mother wrote to the father in which she said “[Ms I] (the nanny) is not working this Friday … as it is a public holiday for Good Friday.  She will be away with her family.  Please advise what you wish to do in relation to access.”  The father replied “I wish to the child [sic] as per usual in line with my normal access days and times on Friday.”  The mother then went on to say that she had emailed the father that week in relation to the child’s birthday inviting him to spend time with the child in her presence between 4.00 p.m. and 6.00 p.m. and that the father had not responded.

4. The orders operating as at 3 April 2015 did not specify who was to meet the cost of the payment of supervision by a nanny other than in relation to Saturdays where it is specifically provided the father was to meet such cost.  The order further said “The time the father is to spend with the child on the Saturday is to be suspended in the event that the mother is unable to locate and retain an appropriately qualified nanny such nanny to be approved by the mother.”

5. The father says that it is a reasonable inference to be drawn from the orders (which were consent orders) that the mother was to pay for a nanny to supervise his time with the child each Monday, Wednesday and Friday pursuant to the orders.  The mother says no such inference is reasonably available.  The orders, in any event, are no longer effective.

6. It seems reasonably clear that the father’s time on Friday 3 April 2015 was not capable of being implemented, in that the nanny who had been approved by the mother and who was familiar with the child’s needs, as required by the order at that time, was not available.  In the circumstances I find this contravention is not made out. I find the mother was not able to comply with the order on that day due to the unavailability of a suitable nanny supervisor.

Contravention – 17 July 2015

1. The father claims that on 17 July 2015, being a Saturday, he attended at the appropriate time to see the child and found there was no one at the mother’s residence to provide the child to him.  By the subject date the orders of the Court had changed and the operative orders were now dated 15 April 2015.

2. In response to this claim the mother says that on 16 July 2015 she wrote to the father by email asking if she could change the Saturday time for the child to spend with him to the next day, namely Sunday.  The father responded by agreeing that he would change the day but stating that he would collect the child and remove him from the mother’s home.  At that time it is unclear whether the order operated to require the father to exercise time with the child supervised or unsupervised.  The order had provided that supervision was to continue for a period of eight weeks from the date of the order.  That eight week period expired on 10 June 2015.  The order provided, however, that it was to cease on that day unless Ms D in her report recommends the supervision continue.  Ms D’s relevant report was signed by her and dated 6 July 2015.  There is no evidence before the Court as to when the mother had notice of the report.  The report did not recommend the continuation of supervision.  Prima facie, therefore, at a date following 6 July 2015 it should have been clear to each of the parties that the father was not required to have his time with the child, pursuant to the orders made 15 April 2015 supervised.

1. The email exchange between the mother and father on 16 and 17 July 2015 is prima facie evidence that neither of them had notice of the contents of Ms D’s report at that time.  The mother, in her email, informed the father that his proposal was “not permitted” under the current order.  The mother offered make up time on Sunday 18 July 2015 in lieu of 17 July 2015.  That was to take place at the mother’s residence.  She also offered, as an alternative, the father could exercise a time between 4.00 p.m. and 6.00 p.m. on an afternoon during the following week.  The father then rejected that proposal and said he would collect the child that day as the orders provided.

2. In relation to this contravention the father asked no questions of the mother. 

3. I am unable to find in the circumstances of this contravention that the mother has provided a reasonable excuse and therefore I find the contravention established.

Contravention – 20 September 2015

1. In relation to this contravention the father alleges the mother cancelled his time with the child, informing him that the child was sick.  There appears to be no issue that the child was sick on this occasion.  The father offered to take the child to hospital.  He offered to see the child at his home on a reduced time basis.  The father says both those offers were rejected.

2. Pages 30 through to 65 of the father’s affidavit annexe text messages passing between the parties which commence on the day before the scheduled time.  The mother informed the father that she had been “up all night and morning with [the child]”.  She said “It’s best for [the child] to stay at home today”.  It is clear that emotive text messages then crossed between the parties.  I have read all of those exchanges.  The mother says that on the subject day the child was still sick.  She offered make up time to the father.  In the circumstances I am satisfied that the mother has made a reasonable excuse for contravening the order on that occasion. I find it was reasonably necessary to cancel the father’s time with the child on this occasion in order to protect the health of the child.

Contravention – 26 September 2015

1. On this occasion the father alleged the mother did not drive the child to Suburb F from J Region as the parties had agreed in a parenting agreement signed between them.

2. The mother had sent a text message to the father on 25 September 2015 informing him that she was experiencing very bad weather in the region where she lived in J Region and that it was effectively too dangerous to drive with the child in the car.  On the next day, 26 September 2015 there were further texts about the weather, however, the mother set out to commence her travel to Sydney in order to deliver the child to the father.  There then occurred further communication by text from the father which the mother stopped the vehicle and read.  She became distressed and sent a message to the father saying that she did not feel safe to drive.  The father was due to see the child the following day, however, he cancelled prior to that day and provided no reason.

3. The mother was cross-examined about the events of 26 September 2015.  She agreed that she had said she may not come to Sydney in the text she had sent to the father the night before.  She agreed she had sent a text message on the morning of 26 September 2015 advising the father that the weather was “still bad”.  The father put to the mother that the weather was not bad enough to prevent travel on a safe basis on 26 September 2015.  The mother did not agree.  The father provided some evidence of the weather in J Region by screen shots taken on a phone.  No date appears on those screen shots.  The mother was asked whether it was ultimately the weather or what she described as abuse coming from the father that prevented her continuing on her trip to Sydney.  The mother replied “abuse”.  She said the abuse was contained in a text message that she received at 7.28 a.m.  The mother agreed that the text message (a very lengthy one) sent to the father at 8.23 a.m. was completed by her in the car. 

4. In the circumstances of this particular claim I find that the father has made out the contravention. I find the mother has failed to establish that the extent of her “upset at the abuse” she said was levelled at her by the father in his electronic messages provided on that day, made it unsafe for her to drive the child to Sydney to spend time with the father. After all, there is no suggestion from the mother that it was unsafe to drive to her home from the point where she ceased her journey to Sydney on that day.

Determination

1. Having set all those matters I find that there were two contraventions which have been established as set out above.

2. In the mother’s evidence she set out details of dates upon which the father failed to exercise time with the child.  The father appears to have taken a stand, which is not uncommon to parents who are not resident parents but spend time with their children, that if for some reason he is not available to spend time with the child then no explanation is necessary to be provided and that such occasions do not amount to contravention of the Court orders.

3. Whilst the parties were present in Court I had an opportunity to point out to the father that the Court orders providing time for the child to spend with him were not optional at his discretion.  His failure to comply with the order, without reasonable excuse, may well be a contravention of the Court orders.

4. At the conclusion of hearing the evidence in relation to the contraventions I asked the father what punishment he was seeking to be meted out to the mother should I found that the contraventions were established.  He told me that he did not require any punishment, in fact he sought that she not be punished and that what he was seeking was a variation of the Court orders so as to provide for a workable set of orders which each party could ensure were complied with.  Thereafter, I sought from each of the parties submissions in relation to how the current interim parenting orders might be varied to try and ensure future compliance.  I composed a set of draft orders having regard to those submissions and then invited each of the parties to address as to why those draft orders should not be made.  Consequently I made orders which are to operate until December of this year or until further order of the Court.

5. Turning then to consider what sanction, if any, should be imposed against the mother I conclude that no sanction should be imposed.  The orders in place at the time of the two findings of contravention provide for the father to spend time with the child who is not yet two years of age.  The child lives with his mother.  The orders provided for the father to see the child three days each week.  There have been a significant number of occasions when the father has failed to comply with the order.  No action has been taken by the mother to bring a contravention application in respect of non-compliance by the father with the order for him to spend time with the child.

6. Where there have been occasions when the mother has been unable to provide the child to the father she has, as a generality, taken reasonable steps to provide make up time for the father.

7. There are two reports which have been commissioned by the parties.  Those reports have been prepared by Ms D, a Child & Family Consultant.  An objective reading of those reports illustrates that the expert has taken a negative opinion of the mother.  The reports do, in my reading, highlight the possibility that the mother is hypervigilant in relation to the care of the child and has little confidence in the father’s capacity to care for the child with a degree of care which the mother considers as adequate. There was nothing about the mother’s evidence before me which suggested the mother was exercising a degree of protectiveness of the child which was unreasonable.

8. In my view, no penalty is warranted here.  No penalty is sought by the father.  And accordingly I do not propose to impose any penalty.

9. The parents have agreed, albeit that each regard the proposed interim orders which were addressed in Court as being disadvantageous to them in some respects, to orders which will operate until the end of the year or until further order of the Court.  The case has not yet been docketed to a trial judge but may be docketed before December this year.  In my view both the parents have taken significant steps, in particular the mother, to accommodate the other’s needs and ability to continue and promote their individual relationships with the child.

10. The orders which were made on 17 February 2016 will provide a level of certainty for each parent and for the child. The mother made it clear she was looking for employment which might fit in with her care for the child. She told the court that her employment may well see her having to travel to Sydney from J Region where she currently lives with or near her father. The mother made it clear she was seeking one day each weekend to spend with the child and her family and it is reasonable to predict that she may ask the father to move one of his days from a weekend day to a week day. The mother did endeavour to start a negotiation in relation to that in the face of the court, however, it was clear from the father’s words that he would agree to a change provided the mother did all the travel to facilitate same.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 29 February 2016.

Associate:     

Date:  29 February 2016