Spencer & Verity

[2012] FamCAFC 210

FAMILY COURT OF AUSTRALIA

SPENCER & VERITY [2012] FamCAFC 210

FAMILY LAW ─ APPEAL ─ CONTRAVENTION ─ Interpretation of orders ─ Asserted uncertainty of drug screen orders ─ Whether there was such uncertainty as to their effect that the drug screen orders were not capable of founding a successful contravention application ─ Where the Court could not discern, on balance, which of the drug screen orders was intended to prevail ─ Where on balance, the Court was not persuaded that the inter-action of the drug screen orders was sufficiently clear as to permit them to found a successful application even on the civil standard of proof ─ Where given the uncertainty in relation to the operation of the drug screen orders the appellant’s defence could not be rejected ─ Appeal allowed in part ─ Contravention findings set aside.

FAMILY LAW ─ APPEAL ─ CONTRAVENTION ─ Waiver ─ Whether the Federal Magistrate erred because his Honour did not accept that the respondent’s failure to comply with the drug screen order/s provided a reasonable excuse for the appellant failing to comply with the orders for the parties’ child to spend time with the respondent, essentially on the basis that, by subsequently allowing contact, the appellant had waived the breach of the orders because she continued for months to comply with the orders ─ Where the logic of his Honour’s reasons for rejecting the defence is unassailable in the absence of evidence from the appellant that she believed that she had no choice than to comply with the orders, despite the respondent’s alleged breach ─ Challenge unsuccessful.

FAMILY LAW ─ APPEAL ─ CONTRAVENTION ─ Where there was no error with respect to jurisdiction or power on the part of the Federal Magistrate ─ Not established that his Honour did not afford the parties procedural fairness and natural justice ─ Challenges unsuccessful.

FAMILY LAW ─ APPEAL ─ CONTRAVENTION ─ Challenge to orders for compensatory time to be spent ─ Whether the Federal Magistrate failed to follow a legislative pathway, or to find jurisdictional facts in relation to compensatory contact ─ Where there may be cases where an application for compensatory time clearly obliges a judicial officer to consider the provisions of s 60CC from equal shared parental responsibility through ss 60CC and 65DAA, but the Court did not find, either as a matter of statutory construction, or on the facts, that the Federal Magistrate erred by failing to do so in this case ─ Where the Court did not find merit in any of the challenges to the variation or compensatory time orders made by the Federal Magistrate.

Family Law Act 1975 (Cth) Part VII; ss 60CC, 65DAA, 70NBA, 70NAC, 70NAE, 70NDB

Banque Commerciale SA En Liquidation v Akhil Holdings Pty Limited (1990) 169 CLR 279
Coulton v Holcombe (1986) 162 CLR 1
Dobbs and Brayson (2007) FLC 93-346
Irvin and Carr (2007) FLC 93-322
Mead v Mead (2007) 235 ALR 197
Metwally (No 2) v University of Wollongong (1985) 60 ALR 68
Rand and Rand (2010) FLC 93-444
Sandler and Kerrington (2007) FLC 93-323
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

APPELLANT: Ms Spencer

RESPONDENT: Mr Verity

FILE NUMBER: SYC 7719 of 2007

APPEAL NUMBER: EA 96 of 2012

DATE DELIVERED: 14 December 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Coleman J

HEARING DATE: 26 November 2012

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 12 July 2012

LOWER COURT MNC: [2012] FMCAfam 729

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Anderson

SOLICITOR FOR THE APPELLANT: McLaughlin & Riordan

COUNSEL FOR THE RESPONDENT: Ms Messner

Orders

1. That the appeal be allowed in part.

2. That orders 2, 3, 4 of the orders of the Federal Magistrates Court made on 12 July 2012 be set aside.

3. That orders 6, 7 and 8 of the orders of the Federal Magistrates Court made on 12 July 2012 be varied by inserting “Order 1” in lieu of “Order 2” in order 6 thereof, “Order 3” in order 7 thereof and “Order 4” in order 8 thereof.

4. That reference to orders 13 and 15 in Declaration 12 of the Federal Magistrates Court of 12 July 2012 be set aside.

5. That costs be reserved.

6. That any party seeking an order for costs file and serve submissions in support of such application within 21 days.

7. That the party against whom such costs are sought file and serve submissions in opposition to such submissions within 21 days thereafter.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spencer & Verity has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 96 of 2012

File Number: SYC 7719 of 2007

Ms Spencer

Appellant

And

Mr Verity

Respondent

REASONS FOR JUDGMENT

introduction

1. By Notice of Appeal filed 23 July 2012 Ms Spencer (“the appellant”) appealed against orders made by Dunkley FM on 12 July 2012 in proceedings between the appellant and Mr Verity (“the respondent”) pursuant to the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. On 12 July 2012 the learned Federal Magistrate found three contraventions of parenting orders alleged by the respondent to have been proved. His Honour also made consequential orders providing that the respondent have compensatory time with the parties’ child. The compensatory time ordered was essentially in accordance with the terms of existing parenting orders.

3. The appellant sought that the learned Federal Magistrate’s contravention findings, and the orders that the respondent spend compensatory time with the parties’ child be set aside.

4. In view of the terms of the statutory provision pursuant to which his Honour granted the respondent compensatory time, successful agitation of the challenges to the orders for the spending of compensatory time is not dependent upon successfully agitating challenges to the contravention findings. It is not in doubt that, even if the contravention findings were unsound, the jurisdiction to award compensatory time remained. Challenges to the exercise of the discretion to award compensatory time thus require consideration irrespective of the fate of the challenges to the contravention findings.

5. The respondent resisted the appeal and sought to maintain the orders of the learned Federal Magistrate.

the reasons for judgment of the federal magistrate

1. Reference to the reasons for judgment of the learned Federal Magistrate provides background to the appeal, and insight into the basis upon which his Honour determined the proceedings before him.

2. The one child of the former relationship of the parties is seven years of age.

3. A complex “suite of final parenting arrangements, and final parenting orders” were made by consent on 8 March 2011. Some comparatively minor “discreet issues” were determined by the Court on 9 March 2011. Some minor variations, which do not assume significance for present purposes were then made to the orders made the previous day.

4. As the learned Federal Magistrate’s reasons for judgment, the appeal to this Court, and ongoing parenting proceedings between the parties confirm, the consent orders the parties entered into a little over 18 months ago have proved problematic.

5. The respondent filed an application on 24 January 2012 alleging that the appellant had contravened the March 2011 parenting orders on four occasions, namely 16 December 2011, 24 December 2011, 30 December 2011 and 30 January 2012. The appellant denied each of the contraventions, although she did not deny that the respondent did not spend time with the child on the four occasions relied upon by him.

6. The orders of 8 March 2011 provided:

   5.That subject to Orders 6. and 19. herein [K] spend time with the father as follows:

   ...

   b.Commencing at the conclusion of the period referred to in 5.b. herein from the conclusion of school on Friday to 5pm Saturday each alternate weekend for eight occasions. (Errors as in original)

7. The terms of order 6 assume no significance for present purposes. As will be seen, the terms of order 19 assume some significance for present purposes. Order 19 provided:

   19.      In the event that Dr [M] is unavailable or unable to accept the father as a patient for any reason then the father shall attend upon such other psychiatrist as shall be nominated by the Independent Children’s Lawyer by contacting the offices of such alternate psychiatrist, within 48 hours of being notified by the Independent Children’s Lawyer and the provision of Order 17 and 18 shall otherwise apply to such attendance. The father shall notify the Independent Children’s Lawyer within 72 hours of the date of the making of these Orders if he is unable to arrange an appointment with Dr [M].

8. Order 5(b) was varied on 15 August 2011 to read:

   1.Order 5B made on 8 March 2011 is deemed to commence from conclusion of school on Friday 26 August 2011.

   That variation assumes no significance for present purposes.

9. Under the heading “Were the parties aware of the orders and did the parties understand the orders?” the learned Federal Magistrate concluded, as was open to him on the evidence before him, that:

   7.Neither party conducted the contravention proceedings bringing into contention either of the above two facts, that is, their understanding and their awareness of the orders.

10. Neither of those findings is controversial in the appeal. As will be seen, the appeal before this Court ultimately turns on the interpretation of the terms of certain orders upon which the respondent’s contravention applications were based.

11. The learned Federal Magistrate recorded, correctly there is no doubt, the statutory provisions which governed the proceedings before him, they being ss 70NAC, and 70NAE of the Act. No part of the appeal to this Court relates to the learned Federal Magistrate’s identification of those provisions.

12. Under the heading “Consequential Orders”, the learned Federal Magistrate recorded, again correctly, the relevant statutory provisions in relation to the awarding of “compensatory time”. As will be seen, whilst there is no issue that his Honour correctly identified the legislative provisions in relation to that issue, the appellant contends that his Honour erred in his application of those provisions.

13. For reasons which he articulated, the learned Federal Magistrate dismissed the respondent’s contravention application in relation to 16 December 2011. There is no cross-appeal in relation to his Honour’s conclusion in that regard, and the reasoning in relation to that contravention is not instructive for the purposes of considering any challenge agitated on behalf of the appellant.

14. The respondent’s contravention application with respect to 24 September 2011 was found proved by the learned Federal Magistrate. Given that the appellant’s defences in relation to that, and the third and fourth alleged contraventions (which his Honour found proved) were essentially the same, the learned Federal Magistrate dealt with the defence in detail in his consideration of the second alleged contravention and, sensibly, did not revisit the defences in detail in the context of the third and fourth alleged contraventions.

15. There was no issue before the learned Federal Magistrate that the respondent had not spent the time with the child alleged by him in the second, third and fourth contravention applications. The appellant’s defences did not include any suggestion that the times referred to in the second, third and fourth contravention applications were not times when the respondent may have been entitled to spend time with the parties’ child.

16. The learned Federal Magistrate recorded, accurately, that the appellant’s defences were “multi-faceted”. The effect of the appellant’s defences was that she had on each occasion that time was not spent, provided a reasonable excuse for not doing so. Each defence was based upon the alleged failure of the respondent to comply with the terms of the March 2011 orders which were asserted to be in the nature of conditions precedent to time being spent with the child. One of the appellant’s defences related to the alleged consumption by the respondent of alcohol during a 12-hour period preceding the commencement of spending time with the child on 24 December 2011.

17. His Honour recorded, accurately there is no doubt, that the 2011 parenting orders provided (order 8(a)) that the respondent not consume alcohol at any time during the 12-hour period preceding the commencing of any period of time spent with the parties’ child pursuant to the orders.

18. The learned Federal Magistrate found that the appellant was “unable to lead any evidence that [the respondent] had consumed alcohol at any time during the 12-hour period leading up to 2pm on 24 December 2011” (par 26). His Honour recorded, undoubtedly accurately, that there was no other “restraint” in the orders about the respondent’s alcohol consumption. In reliance upon the critical finding of fact, the learned Federal Magistrate concluded:

    32.This facet of her reasonable excuse fails, because Ms [Spencer] is unable to tie Mr [Verity’s] alcohol consumption to a period of 12 hours prior to 24 December 2011.

19. The appellant challenged the learned Federal Magistrate’s conclusion with respect to that “facet” of the appellant’s defence of the second alleged contravention. The learned Federal Magistrate similarly concluded in relation to the respondent’s consumption of alcohol in each of the third and fourth contravention applications. Those conclusions have also been challenged before this Court.

20. In submissions on behalf of the appellant to this Court, it was asserted that the learned Federal Magistrate had ignored evidence supporting the conclusion that the father had consumed alcohol within twelve hours of a period of time to be spent. That evidence was a statement made by the respondent, and recorded in hospital notes made in November 2011, that the respondent’s normal consumption of alcohol was 4 to 5 standard drinks per day. The learned Federal Magistrate found, not unreasonably, that such evidence was not evidence of consumption on any particular occasion. There was no other evidence establishing that the respondent had breached the 12-hour alcohol free requirement imposed by the 2011 orders.

21. The learned Federal Magistrate found in relation to the respondent’s alleged use of medication:

    44.There is no expert evidence as to how long the medication that he was prescribed would have remained detectable in his urine. For all is known it may have been quickly purged and not detectable, or it may have lasted for some period of time. Absent any expert evidence as to how long it could have remained in his system means that it is perfectly plausible that the test would not have detected that medication because it had been purged from his system. In any event the orders were not directed towards a prohibition of taking medication. I am satisfied on the evidence the medication was taken appropriately. Even if detected it would not therefore have provided a reasonable excuse.

22. It was suggested before this Court that the learned Federal Magistrate had erroneously failed to have regard to a document produced by the testing laboratory in relation to non-detection times in general. As Counsel for the appellant almost conceded, his Honour was entitled, in the circumstances, to reject that as expert opinion evidence in relation to the respondent on the evidence before him.

23. An issue raised before the learned Federal Magistrate related to the “chain of custody” of urine samples provided by the respondent. His Honour found in that regard:

    48.There is no requirement in any of the orders of 8 March 2011 or 9 March 2011 that Ms [Spencer] be provided with the chain of custody forms. The orders just mandated the specimen be dealt with according to a chain of custody. Chain of custody is satisfied if there is supervision of the sample provision and Mr [Verity] thereafter relinquishes the specimen to a collector or laboratory employee and has no opportunity to tamper with the specimen. Mr [Verity] did all of this. This facet of her excuse therefore fails.

24. To the extent that the appellant continued to agitate issues in relation to the “chain of custody” before this Court, nothing raised on behalf of the appellant provides a basis for disturbing his Honour’s conclusion, either in relation to the construction of the relevant orders or the findings of fact made by his Honour.

25. The next “facet” of the appellant’s defence related to the respondent’s use of prescribed medications. The learned Federal Magistrate found that there was “no evidence that the respondent was “effected [sic] by a non prescribed drug nor an inappropriately consumed prescribed drug on 24 December 2011” (par 34). Similar findings were made with respect to each of the third and fourth contravention applications. Sensibly, the appellant has not challenged the learned Federal Magistrate’s findings or conclusions with respect to that “facet” of her defences.

26. An issue which assumed considerable significance before the learned Federal Magistrate, and this Court, albeit somewhat differently in this Court, related to orders 13 and 15 of the orders of 8 March 2011. The terms of those orders thus assume significance. To understand that significance, it is necessary that the orders be set out in their entirety. The orders provided:

    13.That throughout 2011 or such further period as may be provided for in Order 20. herein, the father shall undergo at his expense supervised urine testing at [Laboratory Medical Services at a Hospital in Sydney] on nine (9) separate occasions, and obtain a chain-of-custody testing of each sample together with a report of the screening of such sample. All reports shall be provided in the first six months from the date of these Orders to the Independent Child Lawyer and otherwise to the mother.

    15.Testing pursuant to 13 above

    a.shall occur within 48 hours of the mother forwarding a written request to the father by e-mail to the e-mail address provided by the father pursuant to 12. Above

    b.shall occur on one occasion each month following the making of these orders. (Errors as in original)

27. The learned Federal Magistrate concluded that “The trigger for the drug screens is by virtue of order 15, that is, ‘by request’” by the appellant (par 36). His Honour found that the appellant “only made seven requests” throughout the balance of 2011, and thus could not successfully “complain that the father has not provided nine urine tests” (par 36). That “facet” of the appellant’s defences was thus rejected.

28. The “final facet” of the appellant’s defences was identified by the learned Federal Magistrate as the respondent’s alleged failure to comply with the requirements of the 2011 orders to obtain a report from a psychiatrist, Dr M, or, if she was unavailable, “another psychiatrist nominated by the Independent Children’s Lawyer”. The appellant’s case in the Court below was that the respondent had not complied with order 19. His Honour found in that regard that the respondent “sought to engage with Dr [M] within the time required and as required by the orders”.

29. His Honour further found:

    54.It is also clear Dr [M] was not available to consult with Mr [Verity] through no fault of Mr [Verity] but rather because of the doctor’s decision.

    55.      Mr [Verity] then sought names of alternates from the independent children’s lawyer as to other appropriately qualified doctors that he might consult. The independent children’s lawyer provided alternatives. None of these alternative doctors were available to consult with Mr [Verity]. Again through no fault of Mr [Verity]. Mr [Verity] then sought to engage with another psychiatrist, Dr [H], that he chose. He did so. He engaged with Dr [H]. Dr [H] provided a report.

    56.Mr [Verity] conveyed this fact to the independent children’s lawyer. The independent children’s lawyer, from the available documentation, has accepted Dr [H] as being an appropriate doctor for Mr [Verity] to have consulted pursuant to the terms of the orders. The report of Dr [H] was made available to the independent children’s lawyer and to Ms [Spencer].

    57.Mr [Verity] has therefore complied with orders, 17, 18 and 19 of 8 March 2011.

1. As recorded earlier, essentially for the reasons articulated in considerable detail in relation to the second contravention application, the learned Federal Magistrate found that the appellant had not established a reasonable excuse with respect to the third and fourth alleged contraventions.

2. Under the heading “Consequential Orders” the learned Federal Magistrate referred to the provisions of s 70NDB, and made a series of findings in that context which do not assume significance in the appeal.

3. Under the heading “When should compensatory time orders be implemented?” the learned Federal Magistrate considered whether compensatory time should be ordered, and if so what time should be. His Honour concluded in that regard:

   87.There are no applications before the Court as a result of the contravention application that were filed to suspend or discharge the parenting orders of 8 and 9 March 2011. All that is before the Court are an Application in a Case and a Response thereto to vary the March 2011 orders and the variation of those orders that are sought are of a minor nature not much more than tinkering. The sought variations do not change in any way the pattern of time and accordingly it is therefore appropriate, and also in [K’s] best interest, that the order that she spend time with the father recommence immediately pursuant to the existing March 2011 orders. There will be an order to give effect to this.

   That conclusion is controversial in the appeal.

the grounds of appeal

1. The appellant’s challenges to the contravention findings made by the learned Federal Magistrate before this Court fall into two broad categories. The first category relates to interpretation of the orders, and does not depend upon successfully challenging any finding of fact made by the learned Federal Magistrate. The second category involves the learned Federal Magistrate’s findings of a small number of material facts. As will be seen, and unsurprisingly so, the Court does not find the latter category of challenge established.

2. The appellant expended considerable effort before this Court in seeking to establish that the learned Federal Magistrate erred in principle in determining the compensatory time issue before him on the basis that his Honour did. Those submissions will be considered later in these reasons, but it is appropriate to record at this point, that Counsel for the appellant was unable to provide the Court with a copy of the response of the appellant to which the learned Federal Magistrate referred in paragraph 87 of his reasons, and described as seeking variation of the 2011 orders “of a minor nature not much more than tinkering”.

3. In the absence of her response, the appellant cannot demonstrate that the learned Federal Magistrate’s description of the relief sought by her in that document was inaccurate. The appellant’s complaints in relation to his Honour’s approach to, and conclusions with respect to compensatory time must be determined on that basis.

4. As is apparent from their terms, a number of the grounds articulated in the appellant’s Notice of Appeal provide limited guidance as to the real issues sought to be advanced pursuant to them (see grounds 1 and 2), or refer to issues which were not, in the circumstances of the case before him, matters which the learned Federal Magistrate was required to consider. Other grounds were almost conceded to be without hope of success.

5. It is hopefully useful to address the challenges raised on behalf of the appellant by reference to the subject matter of those challenges, although doing so does not necessarily involve reference to a specific ground or grounds articulated in the appellant’s notice of appeal.

Challenges to jurisdiction and power

1. The appellant’s challenges emerge more clearly from the summary of argument and supplementary summary of argument prepared by her learned Counsel than by reference to the grounds of appeal themselves. Fortunately, Counsel for the respondent’s written submissions address the issues raised in the submissions of Counsel for the appellant.

2. It was submitted on behalf of the appellant that:

   6.His Honour it is respectfully submitted, is in error to have relied upon orders made and amended apparently on 15 April 2011 and 15 August 2011 without expressly identifying the power and jurisdiction under which such orders, which were originally final orders made in March 2011, were varied or amended. It is respectfully submitted that this was an error of law which has the effect that the whole of the proceedings miscarried.

3. With respect to Counsel for the appellant, there being no challenge to the findings of the learned Federal Magistrate in relation to the parties’ knowledge of the orders (see Mead v Mead (2007) 235 ALR 197) or their terms, or the dates upon which they were alleged to have been contravened, or that the orders had been made, and remained in force and effect, there was no error with respect to jurisdiction or power on the part of the learned Federal Magistrate. His Honour made the findings necessary to found jurisdiction. The powers thus enlivened were those which his Honour identified, and exercised. As other submissions on behalf of the appellant make clear, the challenges agitated on behalf of the appellant really related to the manner in which power was exercised.

4. Counsel for the appellant also represented her before the learned Federal Magistrate. No challenge to jurisdiction or power was then advanced on behalf of the appellant. That was obviously because, as Counsel for the appellant well knew, there was then, and remains no basis for such challenge. With respect to Counsel for the appellant, the primary submissions on behalf of the appellant unhelpfully conflate the contravention aspect of the proceedings before the learned Federal Magistrate with the compensatory time aspect of the proceedings.

Natural justice complaints

1. It was further complained on behalf of the appellant that:

   7.There was little attempt, it is respectfully submitted, to comply with the requirements of natural justice or procedural fairness, and the legal permissibility of that course of action when his Honour purportedly made those variations to the previous orders, which excuse the father’s failures more than they consider the paramount consideration of the child’s best interests.

2. With respect to Counsel for the appellant, for whom the Court has considerable and justifiable respect, that contention is so patently unmeritorious, and unable to be advanced that it ought not have been made. That is particularly so given Counsel for the appellant’s experience, and competence, and the reality that he appeared for the appellant before the learned Federal Magistrate. In what way his Honour is asserted to have erred has not been identified. Nor has any complaint of this kind at trial been referred to.

3. Whatever shortcomings may be demonstrated in relation to the learned Federal Magistrate’s decision, no part of those shortcomings could involve any compromising of natural justice or procedural fairness. In terms of natural justice and procedural fairness, the learned Federal Magistrate’s conduct of the proceedings before him was, with respect to his Honour, exemplary.

Challenge to respondent’s case being entertained

1. The complaints of the appellant under the heading: “Discretion to not hear the application for contravention where the father was in breach of various orders”, cannot be accepted.

2. As Counsel for the appellant ultimately appeared to concede, ground 9 was articulated on the erroneous basis that the conclusion there referred to could have been reached before all of the evidence was heard, and could not be made out in reliance upon the learned Federal Magistrate’s reasons for judgment delivered after the trial had concluded.

3. As the submissions in support of the complaint make clear, the success of the complaint depends upon findings of fact which could only have been made after the case had been heard by the learned Federal Magistrate. The contention that the proceedings “miscarried” proceeds on a fundamental misconception, and cannot be accepted.

Challenges in relation to reasonable excuse

1. In relation to “reasonable excuse”, a number of general propositions, the correctness of which could hardly be disputed, were advanced. A number of the propositions extracted from those authorities were not suggested to have application by Counsel for the appellant when he was her Counsel at trial. As each case turns on its own facts, the principles did not necessarily apply to this case.

2. Ground 6, which Counsel for the appellant developed in some detail in his supplementary submissions, referred to the learned Federal Magistrate’s findings with respect to the respondent’s alcohol consumption and drug use. As ultimately almost acknowledged by Counsel for the appellant, the learned Federal Magistrate’s findings of fact with respect to alcohol consumption have not been shown to have been other than reasonably open to his Honour. It was sensibly acknowledged by Counsel for the appellant that there was no direct evidence of alcohol consumption by the respondent in breach of the orders. It was almost, and sensibly, acknowledged that the hospital notes did not oblige his Honour to make the finding urged by the appellant.

Asserted uncertainty of drug screen orders

1. As the course of submissions on the hearing of the appeal confirms, the drug issue was, by virtue of the orders which the parties themselves entered into in 2011, a potentially complex issue. Order 13 of the March 2011 orders provided:

   13.That throughout 2011 or such further period as may be provided for in Order 20. herein, the father shall undergo at his expense supervised urine testing at [Laboratory Medical Services at a Hospital in Sydney] on nine (9) separate occasions, and obtain a chain-of-custody testing of each sample together with a report of the screening of such sample. All reports shall be provided in the first six months from the date of these Orders to the Independent Child Lawyer and otherwise to the mother. (Errors as in original)

2. Order 15 of the March 2011 orders provided:

   15.Testing pursuant to 13 above

   a.shall occur within 48 hours of the mother forwarding a written request to the father by e-mail to the e-mail address provided by the father pursuant to 12. Above

   b.shall occur on one occasion each month following the making of these orders.

3. Construction of the orders to which reference has been made is problematic. The appellant contends that the obligation cast upon the respondent, quite apart from any requests made by the appellant, was to provide nine separate test results. At least inferentially, the learned Federal Magistrate found that the respondent had provided only seven tests. The Court has not been referred to any other finding recorded by his Honour in that regard. It has not been suggested that the respondent provided nine drug tests. Counsel for the respondent submitted that the number of tests which the respondent was obliged to undergo was the number requested by the appellant.

4. The learned Federal Magistrate found that the “trigger” for the drug screenings was order 15 and, at least inferentially, concluded that, notwithstanding the reference to nine tests in order 13, the effect of order 15 was that the number of tests which the respondent was obliged to undertake was determined by the number of requests made by the appellant for him to do so. His Honour said in that regard:

   36.Ms [Spencer] says that Mr [Verity] did not complete nine drug screens as required by order 13. However, order 13 must be read in conjunction with order 15. The trigger for the drug screens is by virtue of order 15, that is, by request by the mother, that is Ms [Spencer]. She did not make nine requests throughout the balance of 2011. She only made seven requests. She cannot therefore complain that the father has not provided nine urine tests. This facet of her reasonable excuse therefore fails.

   37.Ms [Spencer] then says that with respect to the drug screens she did request, that she requested a test on 28 May 2011. She says the sample was not provided by Mr [Verity] until 31 May 2011, which is outside the 48 hour period mandated by order 15(a).

   38.Mr [Verity] concedes as much but says he had not read his email in time. The test result of the sample given on 31 May 2011 was nil detect.

5. The learned Federal Magistrate did not accept that the respondent’s failure to comply with order 13 provided a reasonable excuse for the appellant failing to comply with the orders for the parties’ child to spend time with the respondent, essentially on the basis that:

   39.Ms [Spencer] by her subsequent conduct waived the breach of these orders because she continued for months to comply with the orders by making [K] available to spend time with the father. It is not now reasonable for her to resile from what she did and rely on this facet of her excuse for the purposes of this count.

6. Although any breach of the orders was disputed on her behalf, it was submitted that the appellant’s subsequent compliance with court orders could not constitute waiver insofar as the appellant was obliged to comply with the court’s orders, and could not involuntarily waive compliance with them (see Vakauta v Kelly (1989) 167 CLR 568, Kennedy and Cahill (1995) FLC 92-605 and Smits v Roach (2006) 227 CLR 423). Counsel for the respondent submitted that the learned Federal Magistrate’s conclusion that the appellant had waived her rights was reasonably open to his Honour.

7. If this issue had not arisen in the context of contravention proceedings, which might be considered to be “quasi-criminal”, there could be no basis in law or logic for disputing the reasonableness of the learned Federal Magistrate’s conclusion. The question is whether the proceedings being in relation to alleged contraventions of court orders changes anything. The proceedings were clearly not criminal in nature, and fell to be determined in accordance with the civil standard of proof. The logic of his Honour’s reasons for rejecting the defence is unassailable in the absence of evidence from the appellant that she believed that she had no choice than to comply with the orders, despite the respondent’s alleged breach of order 13. The Court has not been referred to such evidence. Had there been such evidence, that would not necessarily have been conclusive of the issue in the light of the appellant’s admitted refusal of time on the four occasions referred to in the respondent’s contravention applications.

8. Counsel for the appellant also contended that, if his submission in relation to the effect of orders 13 and 15 was not accepted, there was such uncertainty as to their effect that the orders were not capable of founding a successful contravention application. Counsel for the respondent submitted that the terms of the orders were not so uncertain as to preclude a successful contravention prosecution in reliance upon them.

9. The terms of order 13 are clear, and provide for drug testing of the respondent on “nine (9) separate occasions”, “throughout 2011”. The reference to “first six months” at the conclusion of the order seems to mean that reports obtained between March and September 2011 were to be provided to the ICL, as well as to the mother. Order 13 provides for a number of tests, and reports, but is silent as to the frequency of such events.

10. The terms of order 15 are directed specifically, and solely to times and frequency of tests. Order 15(a) is in no way inconsistent with order 13. Nor is order 15(b) inconsistent with order 13. The difficulty for the respondent is that, contrary to the submissions on his behalf, orders 13, 15(a) and 15(b) are not readily able to be accepted as devoid of uncertainty.

11. In written submissions at trial, Counsel for the respondent submitted that the requirement of nine tests was not absolute, and that a balanced reading of the 2011 orders made clear that, potentially, a maximum of nine screenings at monthly intervals could be required, depending upon the number of requests made in that regard by the appellant. Order 15(a) thus qualified order 13.

12. Although the issue is less than simple or clear-cut, the Court reluctantly concludes that the terms of order 15 did not necessarily qualify the terms of order 13. The Court cannot discern, on balance, which order was intended to prevail: was it intended that there be monthly tests, irrespective of the appellant’s request, or that there only be such tests as the appellant requested, up to, but not exceeding one per month? The latter construction has the attraction of being logical, given that it was the appellant who had required the respondent to undergo testing in order to satisfy her that substance use by the respondent was not a source of possible risk to the child. Conversely, the references to nine tests (in a period of nine months) in order 13, and a test “each month” in that period, suggest that nine monthly tests were expected. That impression is straightforward by the terms of order 15(b) which provide for one test “each month”.

13. If the proceedings before the learned Federal Magistrate had involved the criminal standard of proof, the Court would have little difficulty upholding this challenge (see Rand and Rand (2010) FLC 93-444). The proceedings however involved the civil standard of proof. On balance, the Court is not persuaded that the inter-action of orders 13 and 15 was sufficiently clear as to permit them to found a successful application, even on the civil standard of proof. Given the uncertainty in relation to the operation of orders 13 and 15, the appellant’s defence could not be rejected.

14. As has already been observed, this challenge was not raised before the learned Federal Magistrate. Given however, that the challenge involves the interpretation of court orders, and that, had it been raised before the learned Federal Magistrate the respondent could not have adduced any evidence which would have impacted upon its determination, the appellant ought not be precluded from raising the challenge before this Court (see Suttor v Gundowda Pty Ltd (1950) 81 CLR 418, Metwally (No 2) v University of Wollongong (1985) 60 ALR 68, Coulton v Holcombe (1986) 162 CLR 1, Banque Commerciale SA En Liquidation v Akhil Holdings Pty Limited (1990) 169 CLR 279 and Rand (supra)).

Asserted errors in relation to respondent’s attendance upon psychiatrists

1. Counsel for the appellant further asserted that the learned Federal Magistrate could not permissibly have found that the respondent had complied with orders 17, 18 and 19. The Court has earlier recorded the findings of fact of the learned Federal Magistrate in relation to this issue. Those orders provided:

   17.      That the father shall within 48 hours of the making of these orders contact the offices of Dr [M] on [...] and attend upon Dr [M] at the first available appointment for the purposes of receiving therapeutic assessment and thereafter ongoing counselling, assessment and treatment by Dr [M] and the father shall thereafter continue to attend upon Dr [M] for such period as shall be recommended by Dr [M]. The father shall also follow all recommendations and directions of Dr [M] in relation to ongoing treatment and medication.

   18.      That the father shall obtain from Dr [M] at the conclusion of his treatment with Dr [M] and otherwise within six months from the date of these Orders a Report, at his expense in relation to any diagnosis, treatment, prognosis and medication prescribed by Dr [M]. Such Report shall be forwarded to the Independent Child Lawyer as provided for in 14 above within seven (7) days of receipt of same. The Independent Child Lawyer shall provide to the mother a copy of the report received by her upon receipt of same.

   19.      In the event that Dr [M] is unavailable or unable to accept the father as a patient for any reason then the father shall attend upon such other psychiatrist as shall be nominated by the Independent Children’s Lawyer by contacting the offices of such alternate psychiatrist, within 48 hours of being notified by the Independent Children’s Lawyer and the provision of Order 17 and 18 shall otherwise apply to such attendance. The father shall notify the Independent Children’s Lawyer within 72 hours of the date of the making of these Orders if he is unable to arrange an appointment with Dr [M].

1. Before the learned Federal Magistrate it was submitted on behalf of the appellant that:

   22.The father contacted the ICL and apparently requested the names of other psychiatrists outside the time period required by the orders. The father did not attend on any of the psychiatrists named by the ICL.

2. More was made of the issue before this Court. On behalf of the appellant, it was submitted that the respondent had failed to comply with the terms of order 17, as well as failing to comply with the terms of order 19.

3. The evidence in relation to this issue is essentially contained in letters from the Legal Aid Commission to the respondent dated 28 March 2011 and 9 May 2011. The former records that the respondent:

   ... has experienced some difficulties in communicating with Dr [M]. On that basis, we provide the following names and telephone numbers of other treating psychiatrists which may be of assistance to the father:

   ·Dr [W] – [...]

   ·Dr [S] – [...]

   ·Dr [A] – [...]

   ·Dr [B] – [...]

4. The latter letter recorded, apparently by reference to a letter written to the Legal Aid Commission by the respondent on 6 May 2011 that the respondent was experiencing “difficulties ... in relation to attending upon a psychiatrist” and suggested:

   We invite you to approach your General Practitioner and seek a referral to a psychiatrist in your area. This referral should not be premised on the existence of Court orders. Once you have the referral and attend upon a psychiatrist you can discuss with him/her your history and the provisions of the existing orders and seek a report. Once a report is prepared by the psychiatrist and released to your General Practitioner you can obtain a copy of that report and circulate as required by the orders. (Original emphasis)

5. The learned Federal Magistrate found, as was open to him on the evidence, that the ICL/Legal Aid Commission accepted Dr H for the purposes of order 19 of the court’s orders. Dr H provided a report on 26 June 2011 which, on 2 August 2011 Dr H confirmed was his expert opinion in relation to the respondent.

6. Order 17 required the respondent to “contact the offices” of Dr M within 48 hours of the making of the orders. The Court has not been referred to any evidence that the respondent failed to do that. Whether it was Dr M, or another psychiatrist, the respondent was required to produce a report in relation to the matters identified in order 18 within six months of the date of the court’s orders. Dr H’s report of 26 June 2011 clearly addressed the issues referred to in order 18, and was produced within the six month period required by order 17.

7. It is apparent that the ICL forwarded Dr H’s report to the appellant’s attorneys. There is no evidence that the ICL failed to do so within the timeframe stipulated by order 18. The requirement of order 19 was that the respondent contact the offices of alternative psychiatrists suggested by them “within 48 hours of being notified” of the identity those persons by the ICL. The Court has not been referred to any evidence that the respondent failed to comply with the requirement of that order. As noted earlier, by as early as 28 March 2011, it was known by the ICL that Dr M would not, for whatever reason, be continuing to see the respondent, and that alternate names were suggested. It is also clear, that by 6 May 2011 the respondent communicated to the ICL his difficulties with contacting the psychiatrists previously referred to by the ICL.

8. As the learned Federal Magistrate found, the ICL clearly accepted, and sensibly so given his qualifications, Dr H as an alternate to any of the four psychiatrists suggested by the ICL in lieu of Dr M. As Counsel for the respondent submitted, and the learned Federal Magistrate accepted at trial, orders 17, 18 and 19 did not impose upon the respondent the obligation to do more than attend for such purposes as Dr M or an alternate psychiatrist required.

9. The Court has not been referred to any cross-examination of the respondent at trial, or other evidence, demonstrating that it was not reasonably open to the learned Federal Magistrate to find as his Honour did in relation to the operation of orders 17, 18 and 19.

Conclusion

1. Reluctantly, and acknowledging that the issue was not agitated before the learned Federal Magistrate, the Court reluctantly concludes that his Honour was not entitled to reject that “facet” of the appellant’s defences which relied upon the obligations of the respondent pursuant to orders 13 and 15 of the 2011 orders. Accordingly, the findings of contravention will be set aside.

Challenges to orders for compensatory time to be spent

1. Setting aside the contravention findings does not however mean that the learned Federal Magistrate could not have made orders for compensatory time to be spent by the child with the father, and it is to those challenges which the Court now turns.

2. The submissions of the appellant in relation to the issue of compensatory time were squarely and vigorously agitated in reliance upon decisions of this Court in Sandler and Kerrington (2007) 93-323, Irvin and Carr (2007) FLC 93-322, and Dobbs and Brayson (2007) FLC 93-346. Counsel for the appellant submitted:

   17.Where the applicant seeks an order compensating for time lost in the event that a contravention is established, such an order can only be made if it is in the best interests of the child for the court to do so: section 70NDB(2) of the Act. Although not specified in the section, the court must also consider all the other matters it is bound to whenever a parenting order is made following the statutory pathway: see Sandler and Kerrington (2007) FLC ¶93-323; [2007] FamCA 479; Irvin and Carr (2007) FLC ¶93 322; Dobbs and Brayson [2007] FamCA 1261; (2007) FLC ¶93-346. The first matter to logically determine is the allocation of parental responsibility. This may require a determination as to abuse or family violence under section 61DA(2) and/or having regard to the primary and additional considerations under subsections 60CC(2) and (3) of the Act. Next the court should make findings concerning the relevant section 60CC of the Act factors then consider (based on the section 60CC of the Act findings) whether equal time or substantial and significant time is in the child’s best interests; and then consider whether such arrangements are reasonably practicable by addressing the matter referred to in section 65DAA(5) of the Act – which may be done by referring back to the earlier section 60CC of the Act findings: Goode & Goode [2006] FamCA 1346; (2006) FLC ¶93-286, esp. pars [44]-[48], [65], [85]; MRR v GR [2010] HCA 4; (2010) FLC ¶93-424. There should be placed before the court some relevant evidence, both expert and from others, which would be sufficient to allow the findings under section 60CC of the Act to be made.

   18.His Honour appears to address some of the section 60CC of the Act factors at Judgment [71]-[76]: [...]. It is respectfully submitted that the process undertaken by His Honour in those paragraphs is deficient both in substance and in form to be properly considered compliance with the authorities previously quoted in these submissions. (Original emphasis)

3. Before the learned Federal Magistrate, Counsel for the appellant’s submissions do not appear to have referred to the issue of compensatory time. The complaint agitated before this Court is, in effect, that the learned Federal Magistrate failed to follow a legislative pathway, or to find jurisdictional facts in relation to compensatory contact. However, had the point been taken in the Court below, it is by no means the case that the respondent could not have adduced evidence to meet it, and/or directed the learned Federal Magistrate’s attention to the issue. Allowing the challenge to now be raised appears contrary to the authorities.

4. Counsel for the respondent submitted that, in the circumstances of the case before him, the learned Federal Magistrate was not obliged to “include a complete re-hearing of the parenting orders, there already being final orders in place”, and that the learned Federal Magistrate had adequately addressed matters in s 60CC, so far as they were relevant.

5. On behalf of the respondent, reliance was placed upon a number of paragraphs of the learned Federal Magistrate’s reasons for judgment which provided:

   72.Such an order is in [K’s] best interest as it will give her make-up time with her father. Such time will give more meaning to the existing relationship that she has with her father.

   73.There is no evidence such time would be contrary to [K’s] views.

   74.There is no evidence it will affect her relationship with her mother.

   75.The father is a capable and caring and responsible parent focused on [K’s] needs. No conclusion can be drawn otherwise, having regard to the orders that were made by consent on 8 March 2011 and his compliance with those orders and there being no evidence his time with [K] since then has impacted her negatively.

   76.There are no practical difficulties which would prevent the making of such a compensatory time order.

   …

   85.To leave the parties in a vacuum as to where they are up to with respect to the time that the father should spend with [K] is neither in the parties’ interests. It is also not in [K’s] best interests, which is the paramount consideration. Nor is it in the interests of justice as it simply invites the parties to be further in dispute.

   86.It is appropriate therefore and in [K’s] best interests that it be clear when she should commence again spending time with Mr [Verity].

   87.There are no applications before the Court as a result of the contravention application that were filed to suspend or discharge the parenting orders of 8 and 9 March 2011. All that is before the Court are an Application in a Case and a Response thereto to vary the March 2011 orders and the variation of those orders that are sought are of a minor nature not much more than tinkering. The sought variations do not change in any way the pattern of time and accordingly it is therefore appropriate, and also in [K’s] best interest, that the order that she spend time with the father recommence immediately pursuant to the existing March 2011 orders. There will be an order to give effect to this.

6. No finding of fact referred to in any of those paragraphs has been shown to have been other than reasonably open to the learned Federal Magistrate. Those matters were relevant to s 60CC. What other matters were relevant to s 60CC, but not considered by the learned Federal Magistrate have not been suggested. It was also relevant to the extent of his Honour’s consideration of s 60CC factors that the appellant, by her response filed in the proceedings sought variations of the existing parenting orders which were “of a minor nature not much more than tinkering”.

7. As is apparent from the reports of them, the facts of each of the authorities relied upon by Counsel for the appellant differed materially from those in the present case.

8. Absent the clearest of authority in support of Counsel for the appellant’s proposition, and the inconsistency between that proposition, and commonsense, as suggested to Counsel during the course of the hearing, the Court would be disinclined to agree that irrelevant traversing of many of the matters referred to in the authorities upon which Counsel for the appellant relied was required of the learned Federal Magistrate in this case. There may be cases where an application for compensatory time clearly obliges a judicial officer to consider the provisions of s 60CC from equal shared parental responsibility through ss 60CC and 65DAA, but the Court does not find, either as a matter of statutory construction, or on the facts, that the learned Federal Magistrate erred by failing to do so in this case.

9. The learned Federal Magistrate made the orders for compensatory time pursuant to the provisions of s 70NDB and, to the extent that so doing involved varying the 2011 orders, did so pursuant to s 70NBA. As is clear from its terms, s 70NDB is directly constrained by “best interests” (see s 70NDB(2)). As Counsel for the appellant submitted, it is clear that s 70NBA is also constrained by “best interests”. That is so, but which “best interests” factors require consideration in any case will depend upon which of such factors are relevant and controversial.

10. It was submitted by Counsel for the appellant that the learned Federal Magistrate’s reasons for judgment were only revealed in paragraph 87 of his Honour’s reasons. His Honour there recorded that there was no application before the Court, to “suspend or discharge” the 2011 parenting orders. The absence of such application by the appellant was able to be relied upon by the learned Federal Magistrate as a concession that she regarded those orders as continuing to be in the best interests of the parties’ child. Relevantly, his Honour recorded that such pleading as the appellant had filed sought for variations of the orders of a “minor nature not much more than tinkering”.

11. As noted earlier, the Court has not been referred to any pleading filed by the appellant which did not accord with his Honour’s description of her response document. The learned Federal Magistrate further recorded that the “sought variations do not change in any way the pattern of time”, and that it was thus appropriate to immediately recommence the operation of the 2011 court orders. Nothing to which this Court has been referred reveals that statement to have been erroneous.

12. To regard paragraph 87 as representing the totality of the learned Federal Magistrate’s reasons for concluding as he did with respect to compensatory time, and variation of the primary orders is, as Counsel for the respondent submitted, to ignore the considerable discussion of best interests, in the paragraphs referred to earlier, which preceded that paragraph.

13. None of the findings of fact in the paragraphs examining best interests has been shown to have been other than reasonably open to the learned Federal Magistrate.

14. Significantly, the submissions on behalf of the appellant focus more on what was decided in other cases, on significantly different facts, than on what the learned Federal Magistrate found in this case. What further or other matter the learned Federal Magistrate should have considered has not been suggested.

15. The matters identified by the learned Federal Magistrate in paragraph 87 of his reasons for judgment limited the inquiry which his Honour was obliged to conduct in relation to best interests. His Honour was entitled to assume, the appellant having sought no substantial variation to the primary orders, that she considered the existing orders to be in the child’s best interests, provided that the respondent complied with the terms and conditions imposed by those orders. The absence of any contrary suggestion to the learned Federal Magistrate at trial is significant.

16. Whilst, as noted earlier, there may be cases where a much more comprehensive or even exhaustive consideration of “best interests” would be necessary or appropriate, each case turns upon its own facts and circumstances. The circumstances of this case rendered the learned Federal Magistrate’s consideration of “best interests” both adequate and appropriate.

17. The Court does not find merit in any of the challenges to the variation or compensatory time orders made by the learned Federal Magistrate.

conclusion

1. Whilst, for the reasons the Court has articulated, the contravention findings will be set aside, neither the variation or compensatory time orders will be disturbed.

2. Neither party seeks to have the proceedings remitted for re-hearing, they being, as Counsel for the respondent sensibly submitted, of no possible practical utility.

costs

1. The issue of costs is not simple or straightforward. Both parties seek a costs certificate in the event of the appeal being successful. The Court has reservations about the appropriateness of doing so in this case, but in any event, a pre-requisite to the granting of costs certificates is the Court’s conclusion that no order for costs inter-partes is justified in the circumstances.

2. The Court has not heard submissions in relation to that issue, and cannot deny the parties the opportunity to make such submissions. Given that each party was partially successful in the appeal, and partially unsuccessful, it is difficult to suggest how the Court would conclude that an order for costs was justified in the circumstances.

3. Given that such success as the appellant enjoyed resulted from issues which were not agitated before the learned Federal Magistrate in the way it was before this Court, reliance upon that success would be problematic.

4. The parties are apparently embroiled in litigation at first instance with respect to substantive parenting issues. Whilst the Court cannot in effect wipe its hands of costs questions, it would be far better if the parties simply moved without further ado from this unfortunate chapter in their litigation saga to matters of greater substance.

5. The Court’s orders will however provide the opportunity for costs submissions to be made.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 14 December 2012.

Associate:

Date: 14.12.2012