Stokes and Stokes (No 3)

[2011] FamCA 946

FAMILY COURT OF AUSTRALIA

STOKES & STOKES (NO 3) [2011] FamCA 946

FAMILY LAW – CONTEMPT – Contravention of Court order – Whether the father has contravened Court orders – Where the mother alleges the father of five counts of contraventions, three of which the father conceded to, but asserts that he had reasonable excuse for the other two – Whether forgetting constitutes reasonable excuse – Court finds that it does not – Order that the parents complete a post separation parenting program  

Family Law Act 1975 (Cth) s 70EB(1)(a)(ii), s 65LB, s 70NAE, s 70NB, s 11(1)(f)

Elspeth v Peter, Mike v Peter and John v Peter [2007] FamCA 655

APPLICANT: Ms Stokes

RESPONDENT: Mr Stokes

FILE NUMBER: BRC 9391 of 2007

DATE DELIVERED: 13 July 2011

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 13 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wright

SOLICITOR FOR THE APPLICANT: Rada Milovanovic Solicitor

FOR THE RESPONDENT: Mr Stokes in person

Orders

1. That pursuant to the provisions of section 70NEB(1)(a)(ii), the mother and the father shall each separately attend and complete a post separation parenting orders program conducted by a section 65LB provider of such programs;

2. that each of the mother and the father shall be personally responsible to access details of such programs through a Family Relationship Centre in their residential proximity and for making contact with the provider of such programs enrolling in, attending and completing such a program;

3. that each of the mother and the father shall complete such a post separation parenting orders program within six months of the date hereof and provide evidence in writing of the completion of such a program to the other parties.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9391 of 2007

Ms Stokes

Applicant

And

Mr Stokes

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I have before me for determination today an application alleging contraventions of parenting orders, in the matter between Ms Stokes, the mother, and Mr Stokes, the father, of B, born in 2001, now aged 10. 

2. By way of some relevant background, these two parents have been in dispute in respect of the parenting of their daughter, B, for some seven years.  On 8 April 2011, after a hearing that took place on 9, 10, 11, 24 March 2011 and 1 April 2011, before Bell J of this court, Bell J made lengthy orders in the parenting dispute as between the parties.

3. I shall incorporate in these reasons those orders: 

   1)The child [B] born … 2001 live with the mother [MS STOKES].

   2)The mother have sole parental responsibility for decisions concerning the long term care, welfare and development of the child.

   Child’s time with the father

   3)(a)       The father spend time with the child during school term at such times as may be agreed and failing agreement not less than as follows:

   (i)the last weekend in each calendar month commencing on Friday 23rd day of April 2011 and each first Friday thereafter from the conclusion of school until 4.00pm the following Sunday.

   (ii)The father is to do all things reasonably necessary to ensure that if the child is not certified by a medical general practitioner as being too ill to attend school that day that the child arrives at school -

   A        not late for the school day;

   Bin the full uniform required by the school for that day; and

   Cwith provision made for the child to obtain lunch from the school tuck shop in accordance with the school requirements.

   (b)the father notifies the mother if the child is ill or if the child is going to be dropped off early.

   (c) the father shall spend further time with the child of four weeks per year or limited to the number of weeks the father has recreational leave or whatever is the lesser on the basis that another adult is the adult responsible for the child’s care.

   (d)      The four weeks should be taken as follows:

   (i)       1 week in the Easter school holidays;

   (ii)      2 weeks in the September school holidays;

   (iii)In odd years the child spend Christmas with the mother and spend the last week of the summer school holidays with the father; and

   (iv)In even years the child spend Christmas with the father from 23 to 30 December.

   4)That the child be at liberty to telephone either parent at all reasonable times and the parent who has the care of the child at that time will do all acts and things necessary to facilitate the child telephoning the other parent;

   (a)by letter and email at all reasonable times and on special events;

   (b)the father shall spend time with and communicate with the child at all such times that may be agreed upon by the parties from time to time, and failing agreement:

   (c)The mother and father shall share equally the cost of the flights or transport for each parent paying each alternative ticket on an alternate basis.

   5)That this order shall stand as an Authority for the child’s school/s to provide information to the father as to the progress of the child and as to any events to the father of all notices, letters, school reports, invitations to attend all functions, parent/teacher interviews and all other activities to which the parent of the child attending the school are invited from time to time.

   Medical and Health

   6)This order shall stand an Authority for the treating medical practitioner/s of the child (as the case may be from time to time) to provide any medical information which the father may require concerning the treatment given to the child.  This Authority should be reciprocal in the event that the child attends upon a different treating medical practitioner/s when living with the father than when living with the mother.

   7)The parties shall inform each other immediately (or as soon as practicable) of any hospitalisation or other medical emergency suffered by the child as soon as practicable of any illness or injury suffered by the child requiring prescribed medication.

   8)Each parent shall ensure that the child is on their Medicare card if they have not already done so to help decrease any medical costs.

   9)That to remove any doubt, the parties shall notify each other of any medical situations prior to any decisions being made to assist in the healthcare of the child and in payment of any expense.

   10)The mother inform the father promptly of any upcoming specialist meetings regarding any proposed operations including dental and optical work.

   11)That when the child is in the father’s care the father administers the child’s prescribed medication and treatment.

   Contact Numbers and Addresses

   12)That the parties shall immediately advise each other of their current respective landline and telephone numbers and addresses and at least seven (7) days prior written notice of any change to those details (even if the change is temporary rather than permanent) must be given.

   13)     That the parents communicate only by post and telephone calls.

4. In that hearing Bell J had the assistance of counsel representing the mother, counsel representing the Independent Children’s Lawyer and a solicitor, an experienced solicitor, Ms Barber of Tony Black’s firm, appearing for the respondent father.  His Honour gave considered reasons for his orders, which I have read.

5. On 13 May 2011, the mother filed her contravention application, only just a month after the making of those orders.  In her contravention application she alleged six counts of contravention against the father.  Essentially, they related to time that the child was ordered to spend with the father on the last weekend in April of 2011, just not even three weeks after the making of the orders by Bell J.  To some extent I find that what happened on that weekend and the consequent making of this application are symptomatic of the poor state of co‑parenting that has clearly existed between these parties for years and, notwithstanding Bell J’s decision and the reasons he gave for his orders, apparently continues to exist.

6. The mother, in her application for contravention, alleged that on 29 April 2011 the father contravened paragraph 3(a)(i) of Bell Js orders, by not arriving at 6 o’clock on the Friday evening at the PCYC after school care facility in M Street, Suburb N, to collect the child pursuant to his obligation under the order. The father conceded that he contravened that order, but asserted that he had reasonable excuse, within the meaning of that term, as set out in section 70NAE of the Act.

7. In respect of the second count the mother alleged that the father, at 7 am on Monday, 2 May 2011, contravened paragraph 11 of Bell J’s orders, by not administering the child’s, medication that she was prescribed for the treatment of her O disease, which is a thyroid disorder. The father answered the allegation by conceding that he had contravened the requisite order but again asserting that he had reasonable excuse. 

8. In respect of the third count, the mother alleged that the father contravened paragraph 3(a)(i) of Bell J’s orders, at 4 pm, on Sunday, 1 May 2011, when he did not return the child to the mother at that time.  In answer to the allegation the father conceded that he contravened that part of the order, but said that he had reasonable excuse for so doing.  

9. The fourth count that the mother alleged was that on Sunday, 1 May 2011, the father contravened paragraph 4 of Bell J’s order that provided that the child be at liberty to telephone either parent at all reasonable times, and the parent who has the care of the child at that time will do all acts and things necessary to facilitate the child telephoning the other parent, when he did not permit the child to contact the mother.

10. The fifth count, as alleged by the mother, was that on Saturday, 30 April 2011, the father contravened paragraph 13 of Bell J’s orders, by communicating with the mother via SMS or text on her mobile phone.  The father answered that allegation by denying that he had contravened the order. 

11. There was a sixth count alleged by the mother, which I determined after considering the particulars alleged and the evidence that the mother presented in support of those particulars, that the mother did not, on a prima facie basis, make out, and I did not call on the father to answer that alleged contravention.  Accordingly, I ended up determining to deal with five counts of alleged contravention, three of which the father admitted that he contravened, but asserted he had reasonable excuse for so doing, the last two, which the father said that he did not contravene.

12. The father did not cross-examine the mother and then relied on some affidavit evidence that he filed two days ago in support of his defence of the five counts, as well as giving some oral evidence in-chief in the witness box.  He was cross-examined by Ms Wright, of counsel, for the mother.  At the conclusion of the evidence, I heard submissions from both counsel for the mother and Mr Stokes.  Now, in respect of count 1, the father admitted that he contravened but said that he had reasonable excuse. 

13. The father conceded that he had not picked the child up on the Friday evening, 29 April, at 6 o’clock as he was obliged to by the order.  He submitted that he had reasonable excuse for not doing so.  The father’s evidence was that he simply forgot that he was entitled to have the child spend that weekend with him and therefore obliged to pick her up on the Friday night to spend the weekend with him.  He submits that he had time with her the week before, pursuant to the order, which was over the Easter and Anzac Day holidays and simply got caught up with that and just forgot that it was his weekend.  He says that I should find that forgetting constitutes reasonable excuse for not picking her up, as he was obliged to by the order.

14. Effectively, just now, the father made a further submission, as I understand it, by reference to some things that he asserts Mr Bucknell, the ICL, said to him in some discussions outside court.  The father’s submission is, effectively, that you cannot be held to contravene a parenting order that actually gives you time with the child, when you do not actually take advantage of that and pick the child up.  I am not satisfied that is correct.  I find, where there is an order that provides for a child to spend time with a parent and obliges that parent to pick up the child at a particular place and time in order to facilitate that child spending the ordered time with the parent, that an obligation is placed by the order on that parent to actually go and comply with the order and pick the child up.  If the parent does not do that, then the parent, I find, has contravened the order, even though that parent, in effect, has deprived themself of the benefit of having the child spend time with them.

15. It is, though, to be remembered that parenting orders providing for children to spend time with parents are not made for the benefit of the parents but are made pursuant to determinations of what is in the best interests of the subject children or child.  These orders were made after a hearing at which the father was seeking parenting orders, providing for the child to be with him.  The orders placed an obligation on him to collect the child at the start of his weekends which, on this particular case, he says he did not do on the particularised occasion.  The father accepts that he contravened his obligation.  The question for determination is whether simply forgetting that it was his weekend is a reasonable excuse for contravening the order of picking the child up at 6 o’clock.

16. Section 70NAE of the Family Law Act sets out the meaning of “reasonable excuse” for contravening an order.  Subparagraph (1) of that says this:

    The circumstances in which a person may be taken to have had, for the purposes of this division –

    that is, division 13A –

    a reasonable excuse for contravening an order under this Act affecting children, include but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

17. Subsections (2), (4), (5), (6) and (7) set out specific circumstances or specific prerequisites, the satisfaction of which creates reasonable excuse. The father does not rely on any of those. He does not say that he did not understand the obligations imposed upon him as is available under section 70NAE(2). He does not say that he did not turn up because of some health and safety issue in respect of the child. He does not raise any factual circumstances that bring him within any of those other subsections. That leaves the question of determining his defence of reasonable excuse for contravening the order at large.

18. S 70NAE(1), says, I repeat:

    The circumstances in which a person may be taken to have had, for the purposes of this division, a reasonable excuse for contravening an order under this Act include, but are not limited, to those circumstances set out in subsections (2), (4), (5), (6) and (7). (my emphasis)

19. I find that this means that ‘other circumstances, other than those set out in subsections (2), (4), (6) and (7)’ can be held to amount to reasonable excuse.  The question is, is simply forgetting, in these circumstances, a reasonable excuse.  With all due respect to the father, I find that it does not, particularly in circumstances where (a) the father himself asserts that the parties have been in significant dispute before this Court in respect of the child for the last seven years;  and (b) where the father asserts in his evidence, and in his submissions, that the mother has acted unreasonably for all of those years in respect of their co-parenting of the child such that one would expect Mr Stokes to be well and truly on top of all of the obligations created or imposed upon him by the orders, both the obligations and rights that the orders create;  and (c) where the orders were only made a matter of less than three weeks before. 

20. As I raised with the father, one might very well have expected Mr Stokes to have, as soon as the orders of Bell J were made, sat down and marked on a calendar for many months in advance those weekends that he was required to, or obliged to, go and collect the child.  I reject his defence of reasonable excuse for contravening the order in respect of count 1 and find that he contravened without reasonable excuse.

21. Count 2 was about the medication.  Again, in this regard, Mr Stokes, in support of his defence that he had reasonable excuse for contravening, said that, ultimately, not giving the child the medication had no serious consequence.  That said, I go back to the order, paragraph 11 of Justice Bell’s order that the father admits he contravened which says:-

    that when the child is in the father’s care, the father administers the child’s prescribed medication and treatment.

22. During his evidence, Mr Stokes conceded that he knew that this child had a medication prescription regime for the drug that she was taking to treat her thyroid disorder, O disease. He knew that required her to have her medication before breakfast each day.  I asked him, consequently, when he was under cross‑examination by the mother’s counsel, when he determined that he was going to hold the child over on the Sunday night and have her with him in the morning the next morning for breakfast what arrangements he made to ensure that she had the medication, and he said, “None.”

23. Ultimately, I consider the father’s defence to be not one of reasonable excuse but simply an argument as to why his contravention of the order, for which I find he had no reasonable excuse, does not really matter.  As such, it is a matter that goes more to mitigation of penalty rather than providing a defence. 

24. Count 3 was that he did not drop the child back to the mother at 4 o’clock on the Sunday as required by the order.  The father concedes that he contravened that part of the order.  His evidence was that he simply determined that he was going to hold the child over, take her to P Town and spend the extra night with her because it was his weekend and the mother had not delivered the child to him until the Sunday morning when he had actually contacted her on Saturday morning telling her that he had remembered it was his weekend, asking could she be delivered, and that, therefore, she should have been delivered to him and was not.

25. The father’s case is, as I perceive it, effectively, “Well, the mother did not act honourably in accordance with the obligations imposed upon her, and therefore, in a tit for tat fashion, I did not have to, and so I just simply determined that I was going to spend my time with the child, notwithstanding the obligation imposed on me by the order that she was to go back at 4 o’clock on the Sunday.”  Interestingly, the evidence suggests that when they spoke it was understood between the two of them that the child would come to him the next morning on the Sunday, but that she would nevertheless be returned at 4 o’clock on the Sunday afternoon.  Notwithstanding that, after she was delivered, whether or not he had already decided to do it, the father just unilaterally decided that he was just going to hold onto her overnight, regardless of what the child thought about it and regardless of what her mother thought about it.

26. In the circumstances, I do not accept, and I say that I cannot imagine a circumstance where I would accept such a submission, that it is reasonable not to comply with an order simply because one believes that the other party has not complied with some obligation imposed upon them in respect of the order.  Whilst I do not completely rule out the possibility that such a prospect might be available in appropriate circumstances, in this particular case, I do not find that it was reasonable for the father to contravene the order as he did that required him to return the child at 4 o’clock on the Sunday simply because of the circumstances upon which the child came into his care that weekend, particularly when her failure to be with him for that weekend was principally his fault in the first instance by forgetting to go and collect her on the Friday night. Again, I find that he has contravened that part of the order without reasonable excuse.

1. Count 4 was the allegation that he did not permit the child to contact the mother.  The mother’s evidence in respect of this count is to be found in her affidavit filed on 13 May 2011, paragraph 15, second last sentence. I will read the entire relevant part:

   I then waited for [the child] at 4 pm at Q Street, Suburb R Queensland.  [The child] did not arrive.  I later received a phone call from the child that evening while Skyping to my father in Europe.  [The child] was in significant distress and cried, stating she wanted to come home but could not, as the respondent stated she had to stay in [P Town] until the next day in the afternoon.  She also complained of sore ribs and said no one had given her anything for the pains.  She confirmed that she had no medication at that time.  [The] child did not have her medication because it was not agreed that she would be staying overnight in [P Town] and it was not, of course, part of the court order to do so.  [The child] also stated she was -

   it says “no” which I read to be “not” –

   permitted to speak to me, and that she would somehow try to phone me in the morning.  She said she was scared.

2. What that evidence clearly establishes is that the child was talking to her mother on the phone.  Now, in his evidence the father said that he did not contravene this part of the order that was to let the child call her mother when she was with him because she always had the mobile phone with her, she had her mobile phone with her on that day, and she was able to call the mother as and when she wanted on the phone that day.  Certainly, the mother’s evidence suggests that the child did call her that evening and she had contacted her a few times during the course of that day, as I understand her evidence.  The father’s evidence about that was not seriously challenged in cross‑examination by counsel for the mother, and ultimately, I must say, on the balance of probabilities, I am not satisfied that the father contravened the order as alleged.

3. I am not satisfied that the father did not permit the child to call her mother on that phone and I do not find that the father has contravened that order as alleged.

4. Count 5, is the allegation that the father breached paragraph 13 of the order that says that the parents communicate only by post and telephone calls.  In his defence, the father said that he did contravene that order.  There were two aspects to that.  The first one was that he said that he had not sent her a text, which suggests in the first instance he held a belief certainly when he was making that point, a belief that (a) he had not sent her a text, and that (b) sending her a text might indeed be in contravention of that paragraph.  In any event, he said that he had not sent her a text on the day she alleged that he did.

5. The mother’s evidence was, that on the morning of Saturday, 30 April, the father sent her a text saying that he had forgotten to pick the child up and wanting to have her spend time with him.  He said that he had not and that he actually called her and told her that.  Now, in cross-examination by the mother’s counsel, the mother’s phone, mobile phone, was put to the father. Still stored in the phone were text messages received by the mother from the father on Saturday, 30 April and Sunday, 1 May.  They were shown to the father and he conceded and accepted that they were text messages that he had actually sent to the mother on those days.  Ultimately, the father just said that the inconsistency and differences in his sworn testimony could simply be explained by him saying, “How could I be expected to remember everything that happened some seven weeks ago or so, or so many weeks ago?”

6. I find that his evidence that he had called her and not sent her a text was wrong and that the evidence categorically proves that he did send her texts.  When confronted with that reality, ultimately, the father made a different submission, not that he had not contravened by not texting and calling, but by making the submission that sending a text, as he had been proven to have done, was not in contravention of the order.  He kept referring to an Oxford Dictionary definition that he and some legal friend had determined proved that sending text messages was not in breach of an order that the parents communicate only by “post and telephone calls”.

7. He went on to say that he had also run that definition by the Queensland Police in respect of domestic violence matters between him and the mother in this case and that they had, on his assertion, accepted that.  Well may it be that his friend thought that. Well may it be that some police officer thought that, but ultimately it is my responsibility, as the judge hearing and determining this case, to determine whether or not, in my judgment, the father has contravened the order.  He might refer to Oxford Dictionary definitions, but I have not had any of them put before me in evidence.

8. As I read the order, it says that the parents communicate only “by post and telephone calls”.  Relevantly, it says “telephone calls”.  I interpret that to mean when you ring on a telephone, you make a call on a telephone, and you speak to the person at the other end.  So I determine that the order, paragraph 13, obliged the husband, the father, only to communicate with the mother by means of post and only by means of telephoning her on a telephone and speaking to her.  I do not interpret the use of the term “telephone calls” to include sending a digital text message from one mobile telephone transmitting device to another.  I, therefore, find that the father, contrary to his own asserted defence, did in fact contravene that part of the order without reasonable excuse.  So I have found that the father contravened in respect of four of the counts without reasonable excuse but that he did not contravene in respect of the other.

9. I now have to determine whether, in fact, the contraventions that I have found occurred without reasonable excuse fall within subdivision E of Part VII of division 13A of the Family Law Act, that is, contravention without reasonable excuse constituting a less serious contravention, or whether they fall within subdivision F, contravention without reasonable excuse constituting a more serious contravention.

10. The mother’s counsel submits that I should, notwithstanding the fact that it is the first occasion that Mr Stokes has been found to have contravened an order, find that his contravention should be treated as a more serious contravention and dealt with under subdivision (F) of Part VII of division 13A. She submits, ultimately, I should make orders varying the existing orders of Bell J as I have power to do in an appropriate case. The father makes a submission that his contraventions ought not be treated as more serious and should be dealt with in accordance with subdivision (E) of division 13A.

11. The Full Court has discussed the issue of what might be seen as constituting a serious disregard of obligations under an order.  It did so in its decision in Elspeth v Peter, Mike v Peter and John v Peter [2007] FamCA 655. In that decision, the Full Court discussed a number of first instance decisions in which the question had been considered. At paragraph 66, the Full Court said:

    What seems to be the common thread is that the more serious sanctions should only be invoked if there is a persistent disregard of an obligation or a clearly willful and deliberate attempt to resist carrying out an order.  Mere passivity on a first breach does not appear to be sufficient to attract the more stringent sanctions set out under subdivision (F).

12. This is the first time the father has been found to have contravened the order.  There is no evidence before me that there has been a history of contravention or non‑compliance by the father, although I am mindful of all the things that Bell J said in his decision about the father.  I am mindful of the submission made by the father that had the mother not been there on the Friday night and not aware that he had not turned up, then most likely, the after hours childcare centre would have contacted him by phone and he would have been reminded of his obligation and gone and picked up the child. He submits that it is unlikely that he would have been breached by the mother for not turning up in those circumstances because he would have turned up, and the other contraventions that ultimately I found he has committed, would not have occurred.

13. I accept there is possibly something in that submission, but it does not completely, of course, excuse the fact that, as I have said, he acted in a ‘tit for tat’ fashion by not returning the child at 4 o’clock on a Sunday and simply chose to keep her overnight.  He says that he did that because when he asked the mother for delivery of the child on the Saturday morning, it was refused.  That seems to be correct and I am not satisfied, on the evidence, that the mother, indeed, had good reason for not delivering the child to him on the Saturday when the evidence establishes that she did agree and did deliver the child to him on the Sunday morning. 

14. In all the circumstances of this case, I do not find that the father’s contraventions reflect persistent disregard of an obligation or clearly wilful and deliberate attempt to resist carrying out the orders in such circumstances that require him to be dealt with under the provisions of subdivision (F).

15. So I am going to deal with the matter under subdivision (E), that is, for contravention without reasonable excuse in circumstances where the contraventions were of a less serious kind.  Now, as I pointed out to the father, one of the consequences of him having been found to have contravened today, is that it is the last time that the provisions of subdivision (E) will be available to him in respect of contraventions of Bell J’s orders.  Any future contraventions will have to be dealt with under the provisions of subdivision (F). 

16. Now, under subdivision (E), section 70NB, the Court is given certain powers in order to deal with the person who has contravened. In particular, under subsection (1) of that section, subparagraph (a), the Court may make an order directing the person who has committed the current contravention – that is, the father – or that person and another specified person – that could be the mother – to attend a post separation parenting program.  The next subsection is about compensating a person for time that they did not spend with a child.  That does not apply here because it was the father who actually was deprived of time by his own contravention of not picking the child up on the Friday night, albeit assisted by the mother’s decision on the Saturday morning not to let the child go to him till the Sunday. 

17. I can adjourn the proceedings to allow either or both of the parties to apply for a parenting order that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order.  I determine not to do that.  I do not consider that ordering a person to enter into a bond is appropriate.  There are other subparagraphs that deal with questions of costs.  I determine that in these circumstances, notwithstanding the fact that parties have both attended post separation parenting programs before and that the father says it is a waste of time, I intend to order that they do.

18. I intend to utilise the power available to me to direct both the mother and the father to attend a post separation parenting program.  I am required, when considering this, pursuant to section 11E(1)(f) of the Act, to consider whether I should seek the advice of a family consultant as to the services appropriate to the needs of the mother and the father and the most appropriate provider of those services.  I am satisfied that the parties, utilising the assistance of their nearest Family Relationship Centre, can indeed find appropriate providers and programs.  And accordingly, I do not consider that I need to seek the advice of a family consultant before making the order. 

19. I make the following orders.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 13 July 2011.

Associate: 

Date:  30 November 2011