STAPLETON & HAYES
[2016] FamCAFC 171
•1 September 2016
FAMILY COURT OF AUSTRALIA
| STAPLETON & HAYES | [2016] FamCAFC 171 |
| FAMILY LAW – APPEAL – CONTRAVENTION APPLICATIONS – Where the primary judge found that the appellant had contravened final parenting orders – Where the primary judge imposed a bond on the appellant pursuant to s 70NEC of the Family Law Act 1975 (Cth) – Where the appellant sought to appeal those orders – Where there was insufficient evidence for the primary judge to have found some of the contraventions to be established –Where it was open to the primary judge on the evidence to find that one contravention was established – Where the appeal is allowed in relation to four out of the five findings of contraventions – Where the bond was imposed on the basis that several contraventions were established – Where the bond cannot stand – Appeal allowed. FAMILY LAW – APPEAL – COSTS – Where the appellant sought a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) – Where the appellant was not required to prepare appeal books – Where the issuing of a costs certificate is unnecessary – No order as to costs. |
| Family Law Act 1975 (Cth) ss 65N, 70NAA, 70NAC, 70NAE, 70NCA, 70NDA, 70NEA, 70NEC, 70NFA, 94AAA(3) |
Federal Proceedings (Costs) Act 1981 (Cth)
| APPELLANT: | Ms Stapleton |
| RESPONDENT: | Mr Hayes |
| FILE NUMBER: | SYC | 2750 | of | 2007 |
| APPEAL NUMBER: | EA | 155 | of | 2015 |
| DATE DELIVERED: | 1 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 16 June 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 17 August 2015 |
| LOWER COURT MNC: | [2015] FCCA 1948 |
REPRESENTATION
| THE APPELLANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
The appeal be allowed and Orders 1, 2, 9, 11 and 16 made by Judge Scarlett on 17 August 2015 be set aside.
The Applications for contravention as referred to in Orders 1, 2, 9 and 11 be dismissed.
The balance of the Contravention Application filed on 13 May 2014, as to what if any sanction is to be imposed or further order made consequent on the contravention found to have been established, be remitted to the Federal Circuit Court of Australia for re‑hearing.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stapleton & Hayes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 155 of 2015
File Number: SYC 2750 of 2007
| Ms Stapleton |
Appellant
And
| Mr Hayes |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Stapleton (“the appellant”) and Mr Hayes (“the respondent”) have two children who were born in 2000 and 2001.
On 25 May 2009 Moore J made final parenting orders in relation to the children. The children were to live with the respondent who had sole parental responsibility for them. Orders provided for the children to spend time with the appellant.
The respondent brought four Contravention Applications, alleging that between 24 November 2012 and 2 March 2014 the appellant contravened the orders on 31 different occasions.
On 17 August 2015 Judge Scarlett found that five of those contraventions had been established and imposed a bond under s 70NEC of the Family Law Act 1975 (Cth) (“the Act”) for a period of 18 months.
The appellant appeals against these orders, submitting that the evidence before the court was not capable of establishing those contraventions, that in any event the bond was an excessive penalty and that the proper procedures for imposing a bond were not followed.
In accordance with the well-established procedure in relation to Contravention Applications, the primary judge first considered whether or not the evidence called by the respondent established a prima facie case to which the appellant was obliged to respond. The primary judge gave his reasons for finding a prima facie case in respect of many contraventions, including the ones that were ultimately found to be established, on 30 July 2014. The matter was then adjourned so as to enable the appellant to adduce such evidence as she wished before the applications were finally determined.
In considering the appeal it is necessary to have regard not only to the primary judge’s reasons made on 17 August 2015 but also to his Honour’s reasons delivered on 30 July 2014. The finding of a prima facie case is an important step that led to the orders. As the appeal is against the orders themselves it is appropriate to have regard to those reasons. Indeed, a strong plank of the appellant’s appeal, at least in relation to the first three contraventions, is that the evidence was incapable of establishing a prima facie case.
Each of the contraventions alleged by the respondent was a breach of Order 5 made by Moore J on 25 May 2009. The orders provide for the children to live with the respondent who is to have sole parental responsibility. Order 5 provides for the children to spend time with the mother. It states:
5.Upon the completion of the three month period referred to in 4 the children spend time with the mother as follows:
(A) during school terms:
(a)for two weekends each term [the 2nd and 8th unless otherwise agreed in the [H] area, the mother or her nominee to collect the children from school on Friday at the commencement of the period and to return them to school on Monday at the conclusion of the period;
(b)for one weekend [the 5th unless otherwise agreed] in the Sydney Metropolitan area, the mother or her nominee to collect the children from the father or his nominee at 9am Saturday from Central Railway Station and the mother or her nominee to return the children to the father or his nominee at 5pm on the Sunday.
(B) during school holidays:
(c)for the holidays at the end of the 1st and 3rd terms from the last day of school to the final Wednesday of those holidays, the mother or her nominee to collect the children from school at the commencement of the period and the father or his nominee to collect them from the [G Contact Centre] or other agreed venue at the conclusion of the period;
(d)for one half of the holidays at the end of the 2nd term and during the December/January school holiday period, at times to be agreed and failing agreement:
(i)for the first half in years ending in an even number, the mother or her nominee to collect the children from school at the commencement of her time with the children and the father or his nominee to collect the children from the [G Contact Centre] or other agreed venue at the conclusion of the period;
(ii)for the second half in years ending in an odd number, the mother or her nominee to collect the children from the [H Contact Centre] or other agreed venue at the commencement of the period and the father or his nominee to collect the children from the [G Contact Centre] or other agreed venue at the conclusion of the period;
(C) at other times:
(e)if the mother is in the [H] area and not otherwise spending time with the children according to these orders, for three hours with both children on each of the children’s birthday(s) at times agreed and failing agreement from after school until 7pm if it falls on a school day and from 3pm to 7pm if not on a school day;
(f) at other times agreed between the parents in writing.
(Emphasis removed)
This appeal is being heard by a single judge pursuant to a direction made by the Chief Justice under s 94AAA(3) of the Act.
Contraventions
The contravention of 24 November 2012
In his Honour’s reasons of 30 July 2014 his Honour described the allegation of the contravention and the evidence as follows:
21.The first count claims that on 24 November 2012 the Respondent “attends the [Town P] Show and sits with the children and calls them away from our group. It is not a contact period.”
22.The evidence in support of this claim is contained in paragraph 8 of the affidavit, where the Applicant deposes:
24/11/12 I observe that the Mother attends the [Town P] Show and sits with the children and calls them away from our group. It is not a contact period.
Although his Honour did not expressly say so, it is clear that his Honour found a prima facie case in respect of this allegation because he did not dismiss it as he had done with the contraventions where no prima facie case had been established.
The point of this allegation is that the appellant interfered with the time the respondent was to spend with the children. The primary judge said:
36.It appears clear that if the Respondent were to spend time with either or both the children outside the times specified by the Order, it would only constitute a contravention if that time were to hinder or prevent the children from living with or spending time with the Applicant.
No doubt in making those comments his Honour was referring to s 65N of the Act.
His Honour then said:
37.Turning now to Count 1 in the first Application, where it is claimed by the Applicant that on 24 November 2012 at the [Town P] Show the mother sat with the children and called them away from the Applicant’s group. The circumstances are such that it must follow that if the children were “called away” from the Applicant’s “group”, they were not for that period of time spending time with the Applicant. This would therefore constitute a contravention of the Order, although a relatively minor one. The Respondent has not established a reasonable excuse.
The only evidence as to this contravention was that called by the respondent and is that the appellant “sits with the children and calls them away from our group”. Whilst it may be inferred from the words “our group” that the children were with the respondent when the appellant sat with them and called them away, there is no evidence that, in fact, the children went away with the appellant and no evidence as to how far they went and for how long they were away. The answer to each of those questions is essential in order to determine whether the children were prevented or hindered from spending time with the respondent. The evidence is not capable of establishing those matters and a prima facie case ought not to have been found. The contravention should not have been found to be established.
The appeal against this finding succeeds.
The contravention of 26 November 2012
In his reasons of 30 July 2014 his Honour described the contravention and the evidence in support of it as being:
23.The second count claims that on 26 November 2012 the Respondent “attends at children’s [sports] training session at [U School Sportsgrounds] from 5.00 pm to 6.00 pm and calls the children over during breaks from playing. It is not a contact period”.
24.The evidence in support of this claim is contained in the next sub-paragraph of paragraph 8 and is in virtually identical terms, with the exception that the Applicant has added the words “I observe”.
In his reasons of 17 August 2015 his Honour said:
38.The second count in the Application relates to an incident on 26 November 2012 where the Respondent is said to have attended the children’s [sports] training at [U] School and called the children over during breaks from playing. Again, it would appear from the evidence that the Applicant was present, as he observed this incident or these incidents, and it follows that the children therefore spent time with the mother and not with him. The contravention is established. The Respondent has not established a reasonable excuse.
Again the evidence is incapable of establishing that, as a result of the calls from the appellant, the children ceased spending time with the respondent. The evidence is entirely silent as to whether they were with him when called over but also as to whether they did in fact go over to the appellant, how far they went and for how long they were away. Indeed, the obvious inference is that they were, in fact, engaged in sports training.
Again this evidence is incapable of supporting a finding of a prima facie case or a contravention and the appeal against this finding succeeds.
The contravention of 31 August 2013
In his Honour’s reasons of 30 July 2014 the contravention and evidence in support of it were described thus:
93.The twenty-first count in the Application alleges that between the hours of 9.00 am and 12.00 pm on 31 August 2013 at the [H Sportsgrounds] the Respondent contravened the Order in that:
31/8/13 […] semi-finals day and Mother attends and has contact with both [X] and [Y]. It is not a contact period as provided by the Orders.
94.The evidence in support of this claim is contained in the next two sub-paragraphs of the affidavit. The affidavit contains a description of certain events that occurred during the day, including the Respondent attending to [Y] after she had come off the field. Later, the Applicant deposed that:
We then went shopping before returning for [X] to play in [some matches] and again the Mother turned up and coaxed [Y] to sit with her while [X] was playing.
95. This is a matter for evidence and submissions.
In his Honour’s reasons of 17 August 2015 his Honour said:
58.Count 21 of the first Application refers to the Respondent attending the children’s […] semi-finals at [H Sportsgrounds] on 31 August 2013 and having contact with both children. The Applicant’s evidence, taken at its highest, is that the respondent “coaxed [Y] to sit with her while [X] was playing”. This would appear to constitute a contravention of the Order, in that the child was apparently spending time with the Respondent and not the Applicant. It is a trivial contravention, but it has been made out.
Again there is no evidence that immediately prior to the appellant having “coaxed [Y] to sit with her”, Y ceased spending time with the respondent. Indeed the word “coaxed” is itself a conclusion. Again there is no evidence as to whether the child was with the respondent prior to being “coaxed”, whether the child in fact left the respondent, or as to how far the child went away from the respondent and for how long.
Indeed this was recognised by the primary judge, who noted that the “child was apparently spending time with the respondent” (emphasis added). That, however, is not an inference that is available from the evidence.
Accordingly this contravention should not have been found to be established and the appeal against the finding succeeds.
The contravention of 23 January 2014
As to this contravention and the evidence in support of it, the primary judge said in his reasons of 30 July 2014:
116.It follows that the Application is incompetent insofar as the first and second counts are concerned, in that they do not allege a contravention of a parenting order.
117.The same criticism cannot be made of the third count in that Application, as it alleges a Contravention of Order 5 made on 25 May 2009 in that, on 23 January 2014 at [H Contact Centre] “The Mother does not return the children as agreed between the parents and has contact for more than half of the Christmas School Holidays, 2013-14”.
118.The allegation is supported by an affidavit of the Applicant in which he deposes at paragraphs [6] to [27] how the Respondent did not return the children to his care on 23 January 2013 as arranged, and did not return them to him until 27 January 2013, some four days late.
119.The Applicant has made out a case to answer in respect of this allegation.
In his reasons of 17 August 2015 his Honour said:
61.There is one surviving Count in the second Application filed on 13 February 2014 relating to the failure of the Respondent to return the children to the care of the Applicant on 23 January 2014 as agreed and thereby having contact with the children for more than half of the Christmas school holidays in 2013-2014. The Respondent claimed that there had been a separate agreement that the children would not be returned to the care of their father until 27 January, but I am not satisfied that this claim has been made out.
In respect to this contravention it is necessary to turn to the evidence in more detail. The respondent’s evidence was:
On Wednesday, 1/1/14, I dropped my daughters to their Mother at [Town D in E area] and the Mother signed a letter (Attached as Annexure “C” is a copy of this letter) agreeing to bring the children back to [H Contact Centre] at midday on 23rd January, 2014. The Mother was also given a copy of this letter. This arrangement saved the girls travelling to [H area] with me and then returning to [Town F in E area] and also allowed the Mother extra time beyond the “half holidays” provided in the Orders. …
(Respondent’s affidavit filed on 13 February 2014 paragraph 7)
The Respondent’s case was, therefore, that the parties had agreed that the children would be returned on 23 January 2014, which was a date other than the return date provided for by the orders.
The attached letter is signed by the appellant and confirms “that I will be returning the children to your care at midday on Thursday, 23 January 2014”. Of this letter the appellant said:
…I considered the document he presented to me to be irrelevant and not in accordance with the Court Orders. The current Orders state that I should have the children for the full duration of the second half of the school holidays during the December 2013 and January 2014 period. I returned them to the father before school which in any event prior to that which is required by the Orders.
(Appellant’s affidavit filed on 24 June 2014 paragraph 69)
It appears that the primary judge did not accept that evidence.
The unchallenged evidence was that the children were returned on 27 January 2014.
The difficulty here, however, is that the contravention is framed as a contravention of the written agreement. Division 13A of the Act is predicated upon the contravention of an order (see, for example, ss 70NAA(1), 70NAC, 70NAE(1), 70NCA, 70NDA, 70NEA and 70NFA(1)). Contraventions for the purpose of the Act are contraventions of orders, as indeed the primary judge recognised.
Accordingly the finding of the contravention for the breach of the agreement could not have been made and the appeal against this finding succeeds.
The contravention of 2 March 2014
In the reasons of 30 July 2014 the primary judge described this contravention thus:
128.There is only one count in the Application, alleging a contravention of Order 5 made on 25 May 2009, specifically Order 5(A)(b). The allegation is that the Respondent contravened the Order at 5.00 pm on 2 March 2014 at Central Railway station in that:
The Mother does not comply with “the mother or her nominee to return the children to the father or his nominee at 5pm on the Sunday”.
129.In his affidavit, the Applicant deposed that the Respondent had claimed that her car had broken down at [Town M in E area] and was not able to return the children to him in Sydney at the appointed time on 2 March. The Applicant deposed that the children had still not been returned to his care on 4 March 2014.
130. The Applicant has made out a case for the Respondent to answer.
In his Honour’s reasons of 17 August 2015 his Honour said:
63.This leaves the allegation in the fourth Application (the third Application having been dealt with at [42]-[51] above) that the Respondent contravened Order 5 in that she did not return the children to the Applicant at Central Railway Station in Sydney at 5:00 pm on 2 March 2014. It is the Respondent’s evidence that her car broke down at [Town M in E area] which is why she was not able to return the children on time.
64.However, it is the Applicant’s evidence, which I accept, that the children had not been returned to his care on 4 March 2014. Whilst a delay of a day or a little more may have constituted a reasonable excuse, it appears to me that the delay was too long for a reasonable excuse to be established on the balance of probabilities.
65. I find the contravention to have been made out.
The appellant’s submission was that her evidence as to her car breaking down should have been accepted and should have been found to have constituted a reasonable excuse for the contravention.
The appellant deposed that her car broke down at a town between E area and H area and that she borrowed a car when it could not be completely fixed. Her evidence did not identify when those events occurred.
That evidence was not accepted by the primary judge and thus the finding that a contravention had been established was open on the evidence. The appeal from this finding fails.
The imposition of the bond
The appellant submits that the bond was an excessive penalty, that other options should have been considered before its imposition and that in any event the bond was not explained to her as is required by s 70NEC(5) of the Act.
His Honour declined to take any action in respect of the contraventions found to have been committed on 24 and 26 November 2012 because they were “essentially trivial” and because of the delay in the respondent bringing the contravention application. His Honour then turned to a consideration of whether to require the parties to engage the assistance of post separation parenting programs, make further parenting orders or adjourn the proceedings to allow for variations to parenting orders and decided they were not appropriate steps. His Honour then said:
105.I consider that the imposition of a bond under section 70NEC of the Family Law Act 1975 would be appropriate. It would be without surety or security and last for a period of 18 months. Under s.70NEC(2) a bond is to be for a specified period of up to 2 years, so this sanction is in the upper half of the range, and is a reflection of the seriousness of the contraventions found in Orders (9) and (14).
Orders 9 and 14 referred to in that paragraph are the respective contraventions of 31 August 2013 and 2 March 2014.
However the order that his Honour made was:
(16)In respect of the contraventions found in Orders (9), (11) and (14) above, the Respondent is required to enter into a bond in accordance with section 70NEC of the Family Law Act 1975 for a period of eighteen (18) months, upon the following conditions:
(a)to be of good behaviour; and
(b)to comply with the requirements of the Orders made on 25 May 2009.
The contravention of 31 August 2013 (the contravention recorded in Order 9) would seem to be no less trivial than the contraventions of 24 and 26 November 2012. The contravention of 23 January 2014 (the contravention recorded in Order 11) was considerably more serious. It is likely that a typographical error has appeared in his Honour’s reasons and that the reference to order 9 should in fact have been a reference to Order 11. However all three contraventions are referred to in the order imposing the bond. There is therefore some doubt as to the basis on which the bond was imposed.
More importantly I have found that the contraventions of 31 August 2013 and 23 January 2014 should not to have been found to have been established. At least one was taken into account when his Honour determined that a bond for a period of 18 months was the appropriate sanction to impose. The bond was therefore imposed on an incorrect basis and the appeal against it must be allowed.
The appropriate course therefore is to set aside that order.
The matter should be remitted to the Federal Circuit Court of Australia for re‑hearing so that that court may hear such further evidence as the parties may wish to call on the issue and determine what the appropriate next step is in relation to the one contravention that remains.
Application in an appeal filed 15 February 2016
On 15 February 2016 the respondent filed an Application in an Appeal seeking the following orders:
1.That Interim Orders be made such that:
a.The Orders of the Honourable Judge Scarlett made 2nd November, 2015, be set aside.
b.The Applications Contravention of the Father be heard as a matter of urgency.
c.The Children […] are returned to the care of their Father by delivery to [the children’s school] at 9.00am on 14th March, 2016.
d.All Orders relating to contact between the Mother or any nominee of the Mother be suspended until the Appeal and the Applications Contravention are heard and concluded.
e.A warrant be issued for the arrest of the Mother so that she can be bought before the Honourable Court; such warrant to be used should the Mother fail to return the Children as per c) above.
2.A date be confirmed for the filing and service of the Appeals Books.
(As per the original)
The orders sought in paragraph one are not orders that can be made by a court exercising appellate jurisdiction. In any event they are otiose as the appeal has been determined.
The order sought in paragraph two is now also irrelevant.
The Application in an Appeal will be dismissed.
Costs
The parties acted for themselves. The appellant sought a certificate under the Federal Proceedings (Costs) Act 1981 (Cth). The steps taken by the appellant to prosecute the appeal have been the preparation and the filing of the Notice of Appeal, Amended Notice of Appeal and submissions. The appellant was not required to prepare appeal books. In those circumstances I am not satisfied that the issue of a certificate is necessary. Therefore there will be no order as to costs.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 1 September 2016.
Associate:
Date: 1 September 2016
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