Sommer & Sommer
[2022] FedCFamC1F 108
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sommer & Sommer [2022] FedCFamC1F 108
File number(s): SYC 2639 of 2016 Judgment of: CHRISTIE J Date of judgment: 7 MARCH 2022 Catchwords: FAMILY LAW – CHILDREN – CONTRAVENTION APPLICATION – Where final parenting orders were made by consent and the father alleges that the mother contravened a number of those orders. Legislation: Family Law Act 1975 (Cth), ss 70NAC, 70NAE, 112AD, 112AF and 112AE
Evidence Act 1995, s 140.
Division: Division 1 First Instance Number of paragraphs: 67 Date of hearing: 27 January 2022 Place: Sydney Solicitor for the Applicant: One Group Legal Counsel for the Respondent: Mr Blackah Solicitor for the Respondent: Marsdens Law Group ORDERS
SYC 2639 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR SOMMER
Applicant
AND: MS SOMMER
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
7 MARCH 2022
THE COURT ORDERS THAT:
1.The matter be listed for further hearing on 31 March 2022 at 2.30 pm
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sommer & Sommer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These proceedings relate to two contravention applications filed by Mr Sommer (“the father”) on 21 December 2020 and 18 March 2021, each with accompanying affidavits.
Both of these contravention applications were set down for defended hearing before me.
The determination of these two applications will finalise all proceedings before the court.
Ms Sommer (“the mother”) was ordered to file a response to the contravention applications and an affidavit, should she wish to, by 1 November 2021. No such documents were filed at that time. The mother is not obliged to give evidence but may elect to do so. She can wait until the court makes a determination as to whether there is a prima facie case. In this case the mother filed an affidavit on 19 January 2022.
Her Honour Justice Henderson made final orders in relation to parenting with the consent of the father and the mother (“the parties”) on 24 November 2020 (“the final orders”).
The father alleges that the mother contravened a number of these orders on 11 different occasions.
The matter came before the court for hearing on 27 January 2022. Both parties were represented on that occasion. The mother was asked whether or not she accepted that any of the breaches alleged had occurred and she specifically entered pleas of not guilty to all 11 counts. It therefore fell to the father to establish that there was a prima facie case to answer in respect of each of those alleged breaches.
The father read two affidavits filed in support of the two applications for contravention and gave evidence and was cross-examined. At the conclusion of his cross-examination, each of the lawyers for the parties made submissions in respect of whether or not there was a prima facie case. I indicated my preliminary view that there would be a finding of a prima facie case in respect of at least one of the alleged grounds and accordingly the matter was reserved in order to give reasons and make further orders in respect of the further conduct in the proceedings.
CONTRAVENTION APPLICATION 1: 21 DECEMBER 2020
The father contended that the mother contravened Order 5 of the final orders on 5, 12 and 19 December 2020, Order 5.1 of the final orders on 1 December 2020 and Order 5.4 of the final orders on 7 December 2020 without reasonable excuse.
Order 5 of the final orders reads:
5. The father spend time with LL for a period not less than two (2) hours each week from the date of these Orders for a period of 3 months, such time to be supervised by ZZ Contact Service or any other contact service as may be agreed to between the parties and to facilitate such time each party must;
5.1 Contact ZZ Contact Service within seven (7) days of the making of these orders to arrange an appointment for assessment for suitability for supervised contact/contact changeovers;
5.2 Attend the assessment;
5.3 Comply with any appointment made by ZZ Contact Service for supervised contact/changeovers;
5.4 Comply with all reasonable rules of the contact service; and
5.5 Comply with all reasonable requests or directions of the staff of the of [sic] ZZ Contact Service;
5.6 Such time is to be implemented by the mother delivering the child to the location nominated by the Contact Service at the start of the father’s time with the child and collecting the child from the same place at the end of the father’s time;
5.7 The father shall pay the fees nominated by the Contact Service for the provision of its service; and
5.8 If ZZ Contact Service, following its intake procedure, is unable or unwilling to provide supervision/changeover as set out in these orders, then either party (or the child’s representative) shall have liberty to restore the matter to the list on seven (7) days written notice to the other party and to the Court.
CONTRAVENTION APPLICATION 2: 18 MARCH 2021
The father contended that the mother contravened Order 5 of the final orders on 16 February 2021, 13 February 2021, 20 February 2021, 27 February 2021, 6 March 2021 and 13 March 2021.
CONTRAVENTION APPLICATIONS: THE LAW
These proceedings deal with alleged contraventions of parenting orders.
Section 70NAC of the Family Law Act 1975 (Cth) (“the Act”) provides that a party may be dealt with for contravention of an order effecting children if and only if:
(a)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.
The onus of proof is on the applicant to establish each of the components of the alleged contravention. He or she must demonstrate that the party was bound by the order, that there was non-compliance with the order and that the non-compliance was either intentional or alternatively, the party alleged to have contravened made no reasonable effort to comply.
Section 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) applies and the applicant must discharge the onus on the balance of probabilities, having regard to the gravity of the allegation.
It is open to a party who has not complied with an order to argue that he or she had a reasonable excuse for the non-compliance. Section 70NAE of the Act sets out the definition of “reasonable excuse” for alleged contravention of a parenting order. In circumstances where the respondent to a contravention application relies on “reasonable excuse” he or she bears the onus of demonstrating that reasonable excuse on the balance of probabilities.
This is not a case in which either party has previously been found (in contravention proceedings) to have contravened an order of this court.
In the case of contraventions under Division 13A of the Act, the court hearing a contravention application may vary parenting orders, require attendance at a parenting course, provide compensatory time, impose a bond, fine, community service or imprisonment.
Where the contravention is alleged but not established, the court may order that the person who brought the contravention application pay some or all of the costs of the respondent.
The sanctions which are available are listed in s 112AD(2) of the Act. They include a bond in accordance with s 112AF of the Act, community service, imprisonment or a fine. Imprisonment is only appropriate where the contravention is found to be intentional or fraudulent: s 112AD(2A) of the Act and where no other remedy is appropriate: s 112AE(2) of the Act.
CONSIDERATION
It is necessary to consider each alleged contravention separately, first to determine whether or not there has been a non-compliance and if there has been a non-compliance, whether or not the mother is able to establish that she had a reasonable excuse. In this case the hearing will be dealt with in two parts.
First Alleged Contravention
Order 5.1 required each of the parties to facilitate the time which had been ordered by consent and to do so, to “contact ZZ Contact Service within seven (7) days of the making of these orders to arrange an appointment for assessment for suitability for supervised contact/contact changeovers”.
The father alleged that the mother had failed to comply with Order 5.1 without reasonable excuse. The mother did not admit the allegation.
The effect of that order was to require each of the parties to make contact with ZZ Contact Service (“ZZ Contact Service”) on or before 1 December 2020. The father made contact with ZZ Contact Service via his solicitor on 26 November 2020. The father alleges that the mother failed to comply with that order which obliged her in furtherance of the consent order for time, to make contact with ZZ Contact Service within seven days.
In the father’s affidavit material he annexes his correspondence with ZZ Contact Service which, on its face, indicates it was copied to the mother.
ZZ Contact Service’s email in reply to the father (written by Ms UU) dated 3 December 2020 states that they (ZZ Contact Service) had not yet heard from the mother. As at 3 December 2020, more than seven days had elapsed since the final orders were made.
On behalf of the mother it was contended firstly, that the fact that Ms UU had not heard from the mother was not the same as saying that ZZ Contact Service had not heard from the mother and secondly, that the email of 3 December 2020 did not mean that the mother had not contacted ZZ Contact Service as required by Order 5.1 within 7 days of 24 November 2020.
Counsel who appeared on behalf of the mother described the email of 3 December 2020 from ZZ Contact Service to the father as the “high watermark” of the father’s case as it concerned alleged breach one.
The solicitor for the father said that in order to make a finding about alleged breach one it was necessary to have regard to a number of pieces of evidence commencing with the communication from ZZ Contact Service to the mother dated 26 November 2020 and concluding with the communication dated 18 December 2020.
I find on the basis of that evidence that the mother did not comply with Order 5.1. I make that finding on the basis that:
(a)on 26 November 2020 the lawyers for the father wrote to an email address …;
(b)the email of 26 November 2020 was also sent to …;
(c)on the same day, 26 November 2020 an email was sent to the lawyers for the father (copied to the mother) from … and signed by Ms UU;
(d)on 2 December 2020 the father answered the email from ZZ Contact Service and provided them with his intake forms and the court orders;
(e)on 3 December 2020 ZZ Contact Service sent an email to the father and said “I have yet to hear from the mother so I don’t think we will be able to get everything organized [sic] for tomorrow”;
(f)on 4 December 2020 the father wrote to the mother, copying in ZZ Contact Service, to ask the mother to contact ZZ Contact Service;
(g)on 7 December 2020 ZZ Contact Service wrote to the mother. After preliminaries, the email read:
“ZZ Contact Service has been contacted by One Legal Group as per the email below, to provide contact supervision services as per the attached Court Order dated 24/11/20.
…
Can you please complete the referral form and return in Word format by close of business 08/12/20. Please let me know if you have any questions.
I await your communication”.
The email of 7 December 2020 was signed by Ms UU and came from the same email address …. A plain reading of that email suggests that the mother has made no contact with ZZ Contact Service as required by the court orders, but that they were responding to contact made on behalf of the father;
(h)The first email communication from the mother to ZZ Contact Service contained in the material relied upon by the father is an email of 8 December 2020 copied to the lawyers for the father and addressed to Ms UU at …. The mother thanks her for the email and sets out the mothers understanding of next steps. That is the first communication between ZZ Contact Service and the mother.
In order to accept the submission made on behalf of the mother that the father has failed to prove his case, it is necessary to conclude that, the mother may have communicated with ZZ Contact Service within the seven day period but that she did so without copying the father in or, in the event that she copied the father or his lawyers in, they have chosen not to put that material before the court. The lawyer who appeared on behalf of the father indicated that in order to make the finding on the balance of probabilities that the mother had failed to comply with the order to make contact within seven days, one had to look holistically at the evidence and in particular, the correspondence with ZZ Contact Service. He further referred to the continued correspondence between ZZ Contact Service and the mother which requested that the mother complete the paperwork necessary for intake, paperwork which the father had returned to ZZ Contact Service on 2 December 2020.
On the basis of all of the above evidence, I comfortably find that the mother failed to make contact as was required.
It is plain that the mother did ultimately make contact. In those circumstances, it is sometimes necessary to be cautious about taking too strict an approach to compliance with court orders. However, in the circumstances of this case, the mother’s failure to engage in a timely fashion delayed the commencement of time in circumstances where she and the father had both consented to time occurring weekly from the making of the orders.
I find that the first contravention is proved.
Second Alleged Contravention
Order 5.4 of the final orders requires that each party “comply with all reasonable rules of the contact service”.
The father is alleging a non-compliance by the mother with a rule of the contact service. The mother did not admit the allegation. It is incumbent on the father to demonstrate both the existence of a rule and evidence of a breach.
In his application the father alleges that the mother, without reasonable excuse refused and/or failed to complete the ZZ Contact Service intake forms within a reasonable time.
In order to be successful in establishing a breach of Order 5.4, the father would need to demonstrate that one of ZZ Contact Service’s rules required a party to complete the intake forms within a reasonable time. The father has not established that this was a rule of the contact service and accordingly this alleged contravention must fail.
Third Alleged Contravention
The father alleges that the mother was required to make the child LL (“LL”) available to spend time with him at 11.00 am on 5 December 2020 at his residence in accordance with the terms of Order 5 of the final orders. The mother did not admit the allegation.
Order 5.3 specifically requires the parties to comply with any appointment made by ZZ Contact Service for supervised contact/changeover. It is to be read with the other parts of Order 5 and in particular the requirement that the father spend time with LL for a period of not less than two hours each week from the date of the orders for a period of three months.
ZZ Contact Service did not make an appointment for supervised contact between the father and LL on 5 December 2020 at 11.00 am at the applicant’s residence. That is in keeping with the fact that as at that time the mother had not completed the intake procedures. The mother cannot be found to have breached Order 5.3 if no appointment naming the date, time and location had been made by the service.
Fourth Alleged Contravention
The father alleges that the mother, without reasonable excuse, failed to facilitate time between LL and the father on 12 December 2020 at 11.00 am at Location AB in contravention of Order 5 of the final orders. The mother did not admit the allegation.
The obligation for the mother to facilitate time between LL and the father arose as a consequence of reading Order 5 which required “the father spend time with LL for a period not less than two (2) hours each week from the date of these Orders…” together with Order 5.3 that required that the mother “comply with any appointment made by ZZ Contact Service for supervised contact/changeovers” and Order 5.5 which required the mother to “comply with all reasonable requests or directions of the staff of the of [sic] ZZ Contact Service”.
Regrettably, rather than making an appointment for time between LL and the father at 11.00 am on 12 December 2020, ZZ Contact Service indicated that the visit would not be occurring (absent joint instructions). Consequently, it cannot be said that the mother failed to comply with an appointment made by ZZ Contact Service. Actually they had declined to make an appointment and accordingly that alleged contravention is not made out on the evidence.
Fifth Alleged Contravention
The father alleged that the mother had failed to facilitate time between LL and the father at 10.00 am on 19 December 2020 at ZZ Contact Service. The mother did not admit the allegation.
In the mother’s email of 16 December 2020 the mother herself proposed that the first three visits occur at ZZ Contact Service. That would cover the visit proposed for 19 December 2020. As at 16 December 2020, the evidence was that ZZ Contact Service could facilitate time on 19 December 2020 at their premises (but not at 10.00 am) and they had not, at that stage confirmed a supervisor was available.
As at 17 December 2020, ZZ Contact Service confirmed via email that they could facilitate supervised time at 2.00 pm on 19 December 2020 at their premises. The mother responded to ZZ Contact Service that the 19 December 2020 visit could occur, if the father agreed to it occurring every Saturday at the contact centre until an agreement on locations is reached. ZZ Contact Service responded by informing the mother that they could see no reason why the 19 December 2020 visit should not proceed. The Independent Children’s Lawyer’s correspondence to the parties on 17 December 2020 also lends support to the proposition that the request by ZZ Contact Service for the mother to agree to, and facilitate, the proposed contact on 19 December 2020 was reasonable. The visit did not proceed.
The mother’s refusal to permit the visit on the date and time notified by the centre at the location she agreed to, constituted a breach of the requirement under the orders that the mother facilitate the father’s time and comply with reasonable requests of ZZ Contact Service. However, that was not how the father framed his application that the mother be dealt with for contravention.
It is true that the father’s alleged breach nominated 10.00 am instead of 2.00 pm. Accordingly notwithstanding the fact that it is plain that the mother had pre-emptively indicated an intention not to present the child at the time nominated by ZZ Contact Service, she cannot be found to have contravened the order in the terms identified by the father in his application and reflected in the formal “charge” put to the mother at the commencement of the hearing. The father has not established a prima facie case in respect of this allegation.
Sixth Alleged Contravention
The father alleged that the mother, in contravention of Order 5 of the final orders failed to facilitate LL’s supervised time with him without reasonable excuse on 16 February 2021. The mother denied the allegation.
There is no evidence to support this alleged contravention and accordingly it must fail.
Seventh Alleged Contravention
The father alleged that the mother, in contravention of Order 5 of the final orders failed to facilitate LL’s supervised time with him without reasonable excuse on 13 February 2021. The mother did not admit the allegation.
The visit was cancelled by ZZ Contact Service. It was cancelled as the mother indicated LL was unwell and provided a medical certificate via email on 12 February 2021. Given the visit was cancelled the father has not established that the order was contravened.
Eighth Alleged Contravention
The father alleged that the mother, in contravention of Order 5 of the final orders failed to facilitate LL’s supervised time with him without reasonable excuse on 20 February 2021. The mother denied the allegation.
LL did not spend time with the father on 20 February 2021. Unhelpfully, ZZ Contact Service wrote to the parties at 4:51 pm on Friday 19 February 2021 stating “in the absence of a response, I have assumed the visit is not proceeding tomorrow”. Unfortunately, that amounted to ZZ Contact Service failing to confirm an appointment (effectively cancelling any appointment which may have been made). It is plain that this occurred because of action or inaction by the mother (as opposed to the father). However, absent an appointment the mother was not in breach of her obligations under the order.
Ninth Alleged Contravention
The father alleged that the mother, in contravention of Order 5 of the final orders failed to facilitate LL’s supervised time with him without reasonable excuse on 27 February 2021. The mother denied the allegation.
LL did not spend time with the father on 27 February 2021.
The father’s solicitor urged me not to view Order 5.3 in isolation. Order 5.3 provided that the parties “comply with any appointments made by ZZ Contact Service for supervised contact/changeovers”. ZZ Contact Service, it would appear on the evidence, required the parties to agree on the day, time and location of supervised time before they made or confirmed any appointments. That left the father in the unenviable situation that, absent the mother’s agreement, time would not occur. The existence of Order 5.3 did not absolve the mother of her responsibility to comply with the requirements of Order 5 in so far as the father was to spend time with LL for two hours a week.
Applications that a party be dealt with for contravention of orders are difficult and technical. It is most unfortunate that the mother failed to honour the intent of the orders but absent evidence as to the obligation on a specific date (or at a specific appointment time) it is not possible to find that she has breached the order on this occasion as alleged.
Tenth Alleged Contravention
The father alleged that the mother, in contravention of Order 5 of the final orders failed to facilitate LL’s supervised time with him without reasonable excuse on 6 March 2021. The mother denied the allegation.
LL did not spend time with the father on 6 March 2021. The father, as applicant, did not provide any evidence of there being an appointment for supervised time on this day. This allegation is not proved.
Eleventh Alleged Contravention
The father alleged that the mother, in contravention of Order 5 of the final orders failed to facilitate LL’s supervised time with him without reasonable excuse on 13 March 2021. The mother denied the allegation.
LL did not spend time with the father on 13 March 2021. The father, as applicant, did not provide any evidence of there being an appointment for supervised time on this day. This allegation is not proved.
CONCLUSIONS
Final orders were made by consent on 24 November 2020. Almost immediately, issues arose about compliance. I have found that the mother contravened the orders by failing to engage with the supervised contact centre in a prompt fashion as required by the orders.
The parties (and child) were not assisted by the supervised contact centre’s insistence that the parties agree as to date, time and location. That left the mother able to effectively prevent time from occurring. That situation is most unsatisfactory.
While I have determined that the mother does not have a case to answer in respect of the remaining charges, the mother’s failure to complete the paperwork occasioned delay and while her later actions may not have been technically matters which resulted in a finding of contravention the effect was that the child did not have the time with the father to which the mother had consented.
As I have found that there is a prima facie case to answer, the matter should be relisted to hear the respondent in respect of reasonable excuse.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 7 March 2022
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