Sommer & Sommer (No 2)
[2022] FedCFamC1F 223
•7 April 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sommer & Sommer (No 2) [2022] FedCFamC1F 223
File number(s): SYC 2639 of 2016 Judgment of: CHRISTIE J Date of judgment: 7 April 2022 Catchwords: FAMILY LAW – CHILDREN – CONTRAVENTION APPLICATION – where the mother contravened an order which resulted in a delay to the commencement of the father’s time with the child – where parenting orders are varied Legislation: Family Law Act 1975 (Cth) ss 60CA,70NAE(2), 70NBA Cases cited: Stanford v Stanford (2012) 247 CLR 108 Division: Division 1 First Instance Number of paragraphs: 31 Date of hearing: 31 March 2022 Place: Sydney Solicitor for the Applicant: Mr Ayache, One Group Legal Counsel for the Respondent: Mr Blackah Solicitor for the Respondent: York Law Family Law Specialists 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 APRIL 2022
THE COURT NOTES THAT:
A.The parties remain bound by the Orders of 24 November 2020 as amended on 4 December 2020 (the final consent orders) except as varied below.
THE COURT ORDERS THAT:
1.In lieu of Order 5 of the final consent orders, the following order apply:
Mr Sommer (“the father”) spend time with LL (born 2013) (“LL” or “the child”) for a period of not less than two hours each week from the date of these orders, for a period of six weeks, such time to be supervised by ZZ Contact Service (or any other contact service as may be agreed between the parties) (“the contact service”) and to facilitate time, each party must:
(a)Make contact with the contact service within 48 hours of the making of these orders and thereafter respond promptly to any request by the contact service for information (all contact being via email except in an emergency).
(b)Facilitate the child’s attendance at any appointment nominated by the contact service for supervised contact.
(c)Comply with all reasonable rules of the contact service.
(d)Comply with all reasonable requests or directions of the staff of the contact service.
(e)Ms Sommer (“the mother”) will deliver LL to the location nominated by the contact service at the start of the father’s time with the child and collect the child from the same place at the end of the father’s time.
(f)The father shall pay the fees nominated by the contact service for the provision of its services.
(g)If ZZ Contact Service is unable to provide supervision and the parties fail to reach agreement, either party be at liberty to relist the matter on seven days written notice to the other party and the Federal Circuit and Family Court of Australia Division 1 (“the Court”), and upon filing an affidavit nominating an alternate supervised contact service.
2.In lieu of Order 6 of the final consent orders, the following order apply:
At the conclusion of the six week period referred to in Order 1 above, the father shall spend time with LL each alternate Saturday between 10.00 am and 2.00 pm, supervised by either Ms W or Ms X.
3.In lieu of Order 7 of the final consent orders the following order will apply:
At the conclusion of the time in Order 2 above the father shall spend time with LL each alternate weekend from 9.00 am until 2.00 pm Saturday and 9.00 am to 2.00 pm Sunday supervised by either Ms W or Ms X.
4.In lieu of Order 8 of the final consent orders, the following order apply:
At the conclusion of the time in Order 3 above the father shall spend time with LL each alternate weekend from 9.00 am until 4.00 pm Saturday and 9.00 am to 4.00 pm Sunday supervised by either Ms W or Ms X.
5.On the condition that the father has complied with Order 11 then in lieu of Order 9 of the final consent orders:
At the conclusion of the time in Order 4 above the father shall spend time with LL for a period of three months each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday.
6.In lieu of Order 10 of the final consent orders the following apply:
At the conclusion of the father’s time in Order 5 above the father shall spend time with LL each alternate weekend from after school (or 5.00 pm if a non-school day) on Friday to 5.00 pm on Sunday.
7.In lieu of the time in Order 11 of the final consent orders, the following order apply:
Commencing in Term 1 holidays in 2023 the father shall spend time with LL in the Terms 1, 2 and 3 school holiday periods for three days as agreed between the parties and failing agreement, the three days following the time the father is spending with LL in accordance with Order 10 of the final consent orders.
8.In lieu of the time in Order 12 of the final consent orders, the following order apply:
Subject to Order 15 of the final consent orders, commencing in the NSW school holiday period at the end of Term 4 2023, the father spend time with LL for two block periods of seven days as agreed between the parties and failing agreement:
(a)In odd numbered years in the first week of the Term 4 school holiday period and in the fourth week of the Term 4 school holiday period and,
(b)In even numbered years in the second week of the Term 4 school holiday period and the fifth week of the Term 4 school holiday period.
9.In lieu of Order 15 of the final consent orders the following order apply:
Commencing 2022 in respect of Christmas Eve, Christmas Day and Boxing Day:
(a)During odd numbered years from 12.00 pm on Christmas Eve until 12.00 pm on Christmas Day.
(b)During even numbered years from 12.00 noon on Christmas Day until 12.00 pm on Boxing Day.
10.Within 24 hours of these orders, the father enrol in the “Men’s Behavioural Change Program” run by AC Organisation and thereafter, attend and complete that programme in furnish a copy of a certificate of completion to the wife.
11.The father’s time pursuant to Order 5 commence upon provision of the completion certificate referred to in Order 10 above to the wife.
12.That either party be at liberty to provide these orders and the reasons for judgment to the supervised contact service.
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 are contravention proceedings. Ms Sommer (“the father”) filed an application that Ms Sommer (“the mother”) be dealt with for contravention of parenting orders that relate to his time with their son LL (born 2013) (“LL”). As at the date of hearing the father had not spent time with LL since 30 January 2021.
On 27 January 2022, I found that the mother had a prima facie case to answer in respect of a contravention of Order 5.1 of the orders of 24 November 2020 made by her Honour Justice Henderson (“the final consent orders”), in so far as she failed to comply with the order to the extent that it obliged her to contact the supervised contact service, ZZ Contact Service (“ZZ Contact Service” or “the supervised contact service”), within seven days of the making of those orders.
The matter was listed for further hearing on 31 March 2022 in so far as the question of “reasonable excuse” and variation of parenting orders were concerned.
The background facts are contained in my reasons for judgment dated 7 March 2022.
THE LAW
A party will be taken to have a reasonable excuse for contravening an order (s 70NAE(2) of the Family Law Act 1975 (Cth) (“the Act”)) where:
(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.
The matters contained in s 70NAE are not an exhaustive recitation of the matters which may be considered when making a determination as to whether a party will be taken to have a reasonable excuse for contravention of an order. A judge is entitled to take into account any and all matters which may be relevant to reach a conclusion as to whether a respondent, firstly has established an excuse and, secondly whether that excuse is reasonable. Then, the Court must also be satisfied that the respondent should be excused for the contravention.
There is no guidance in the words of the Act itself as to how the discretion to excuse should be exercised. It is a broad discretion: Stanford & Stanford (2012) 247 CLR 108.
In this case each of the parties accept that there is an application before the Court to vary the final consent parenting orders. Section 70NBA of the Act provides:
(1)A court having jurisdiction under this Act may make an order varying a primary order if:
(a)proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b)it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i)the court does not find that the person committed a contravention of the primary order; or
(ii)the court finds that the person committed a contravention of the primary order.
(2)If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a)the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program;
(b)there was no post‑separation parenting program that the person who contravened the primary order could attend;
(c)because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court’s opinion, for the person to attend a post‑separation parenting program, or a part of such a program;
(d)the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3)This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
CONSIDERATION
The mother filed an affidavit on 29 March 2022 in which she gave evidence she did not have a copy of the final consent orders until 1 December 2020 and an amended version until 4 December 2020 and since she contacted the service on 8 December 2020, she should be considered to have a reasonable excuse for her failure to comply.
The mother gave evidence and was cross-examined.
The evidence established that the mother was present at court on the day on which the final consent orders were made. The mother attended the proceedings as a litigant in person (“self-represented”). There was an Independent Children’s Lawyer (“the ICL”). The mother had agreed to the final consent orders. The mother understood those orders provided for her to contact the supervised contact agency. The mother understood that the final consent orders provided a “timeframe” within which she was required to contact that agency.
I accept that the final consent orders were amended under the slip rule pursuant to r 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) on 2 December 2020. I do not accept that this amendment is relevant to the question of the mother’s knowledge and understanding of the terms to which she consented on 24 November 2020 and which orders were made by the Court on that day.
The evidence establishes that the mother read the final consent orders dated 24 November 2020 on 1 December 2020 as it was the mother who wrote to the Court and asked for the amendment to LL’s date of birth (the error that necessitated the slip rule amendment).
The mother cannot rely on the fact that she was self-represented on the day she entered into the final consent orders to ground a finding that she had a reasonable excuse.
The Order that required her to make contact with the agency within a timeframe of seven days was an order she well understood. It was not a technical legal matter.
On 26 November 2020, the father made contact with the supervised contact agency, via an email from his lawyer. The email was copied to the email address of the mother. That email referred to the making of the final consent orders and the necessity of the parties to complete intake procedures. Even if, as the mother said, she was somewhat overwhelmed, this would have functioned as a reminder of the final consent orders to which she had agreed and the requirement that she make contact with the same agency. That email was replied to on the same day (and the reply also copied to the mother).
I do not accept that the mother had a reasonable excuse to explain her failure to make contact with ZZ Contact Service within seven days. The time frame existed to ensure that there was as little delay as possible between the making of the final consent orders and the commencement of supervised time between the father and LL. Failure to comply with the terms of the orders delayed the commencement of time. Accordingly, I find that the mother, without reasonable excuse, failed to comply with Order 5.1 of the final consent orders.
I was not informed of any prior contravention proceedings. Accordingly, I find that this is the first time that the mother has been found to have breached a parenting order without reasonable excuse.
Having found that the mother has contravened the final consent orders, this is not an appropriate case for a penalty given the application succeeded on one alleged contravention and it was a first time such a finding has been made. However, I may vary the parenting orders pursuant to s 70NBA of the Act.
An order varying a parenting order is a parenting order, so I must have regard to the best interests of LL as the paramount consideration pursuant to s 60CA of the Act.
I take into account that both the mother and the father (“the parents” or “the parties”) submitted that it was appropriate that the parenting orders be varied. Counsel who appeared on behalf of the mother in these proceedings submitted that it was necessary for the Court to take a minimalist approach and vary the orders only to the extent necessary to clarify them and ensure that they operate in the best interests of the child.
I accept that it is not open to me on the basis of limited evidence to substantially depart from the final consent orders which were made by consent with the assistance of the ICL.
I take from the parties’ consent to the final consent orders (as amended on 2 December 2020) that each of them accepted that the following orders were in the best interests of their son:
(a)Orders for time (initially supervised);
(b)Orders graduating from supervised to unsupervised time; and
(c)Orders for the father to undertake a Men’s Behavioural Change Program.
The mother sought that the father’s time with LL be each alternate week. I think it should occur each week. It will be important to ensure that the time proceeds with as few gaps as possible so that LL may have the benefits of the time the parties consented to in 2020.
The mother sought to nominate where the time between the father and LL should occur. The issue of where the time should occur is one that should be determined by the father in consultation with the supervisors.
The parties encountered problems in the past when the supervised contact agency allowed the mother to avoid her obligations under the final consent orders by dictating the location or time that contact would occur. This cannot occur going forward.
The father sought to be released from his obligation to complete the Men’s Behavioural Change Program. He sought to be released on a number of bases. Firstly, his solicitor told the Court that the course was being run at a location which was at some distance. I accept the father may have to travel to undertake the course. Given his consent to the course and given that I must consider the best interests of LL as paramount, I do not accept that travel is a legitimate reason to discharge his obligations under the order. Secondly, the father did not wish to undertake the course because it was 22 sessions long. I accept that the parties could not have been aware of the length of the course (assuming the 22 sessions are undertaken over 22 weeks) as the orders assume the course will be completed sooner than that, as completion is tied to progression of time. However, the fact that the course may take some time is not a reason to discharge the Order. Although, it may be a reason to vary the Order to provide that the course and the graduation of time take place in parallel, as was submitted by the father’s solicitor. I intend to take that approach.
I accept that the father undertook and completed a different course with AC Organisation. The mother did not raise with the father her concern that it was the wrong course until it was deposed in her affidavit filed 29 March 2022.
Both courses rely on “self-referral”. The father did this via entering into consent orders. Self-referral is an important component because behavioural change programs are most effective if their participants accept that behavioural change is necessary.
The father gave evidence on the contravention proceedings and was cross-examined. It is fair to say that he was frustrated and angry with his former spouse and the Court process in general. At one stage, following a comment made by counsel who appeared on behalf of the mother, the father left the court room. He said on oath he did not think it was necessary for him to undertake the course. I accept he is frustrated. Considerable time has passed during which he has not seen LL. However, given that each party sought a continuation of the final consent orders, I find it appropriate that the father undertake the course he consented to in 2020. It should not delay the time he spends with LL but it will hopefully give the father tools for analysing his own conduct to the benefit of LL.
Accordingly, I will vary the final consent orders to provide for the resumption of time between the father and LL, alongside the father’s participation in the Men’s Behavioural Change course referred to above.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 7 April 2022
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