STUBBS & STUBBS
[2013] FamCA 427
•11 June 2013
FAMILY COURT OF AUSTRALIA
| STUBBS & STUBBS | [2013] FamCA 427 |
| FAMILY LAW – ORDERS – contravention – where the father’s two applications for contravention orders contained a total of four counts – where the primary order concerns the time the two children are to spend with the father – where the wife admits all four counts – consideration of whether the wife had a reasonable excuse for contravention – where the wife claims she has a reasonable excuse pursuant to s 70NAE(5) of the Family Law Act 1975 (Cth) – no reasonable excuse for contravention established – consideration as to the orders to be made consequent upon these findings adjourned to a date to be advised by the Docket Registrar upon receiving notification that the criminal proceedings against the father have been finalised. |
| Family Law Act 1975 (Cth) s 70NAA, 70NAC, 70NAE, 70NAF, 70NBA, 70NFA Family Law Rules 2004 (Cth) r 21.08 |
| Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 (5 July 2007) Elspeth & Peter; Mark & Peter and John & Peter (Penalty and Costs) [2007] FamCA 1072 (13 September 2007) Childers v Leslie (2008) 39 Fam LR 379 McClintock & Levier (2009) 41 Fam LR 245 at 283 |
| APPLICANT: | Mr Stubbs |
| RESPONDENT: | Ms Stubbs |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 1974 | of | 2009 |
| DATE DELIVERED: | 11 June 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 9 and 10 May 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr McQuade |
| SOLICITOR FOR THE APPLICANT: | Helen McCance |
| COUNSEL FOR THE RESPONDENT: | Ms Lee |
| SOLICITOR FOR THE RESPONDENT: | Georgina Parker Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Stephen |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
The issue of what, if any, orders should be made as a consequence of these findings is adjourned to a date to be advised by the Docket Registrar upon receiving notification that the criminal proceedings against the father have been finalised.
The question of the costs of the contravention applications is to be heard before me on the adjourned date yet to be advised.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stubbs & Stubbs 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 ADELAIDE |
FILE NUMBER: ADC 1974 of 2009
| Mr Stubbs |
Applicant
And
| Ms Stubbs |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment concerns two applications for contravention orders filed by Mr Stubbs (“the father”) alleging a total of four counts of contravention on the part of Ms Stubbs (“the mother”). The first application was filed on 13 December 2011. The second was filed on 20 December 2011.
These applications for contravention orders assert various breaches of parenting orders made by O’Reilly J on 9 May 2011 concerning the two children of the marriage, namely, D born in September 2002 (aged 10 at the date of hearing) and N born in April 2007 (aged 6 at the date of hearing) (collectively referred to hereafter as “the children”).
There were two other applications for contravention orders extant at the date of the hearing. One was filed by the father on 20 December 2011. The other was filed by the father on 06 February 2013. The application filed on 20 December 2011 was withdrawn by the father at the commencement of the hearing. The application filed on 06 February 2013 was adjourned to a date to be advised by the Docket Registrar upon notification that certain criminal proceedings against the father have concluded.
The father was represented at the hearing by Mr McQuade on instructions from Helen McCance. The mother was represented by Ms Lee on instructions from Georgina Parker Lawyers.
The Independent Children’s Lawyer, Mr Stephen, on instructions from the Legal Services Commission of South Australia, was excused from attendance at the hearing of the applications. Mr Stephen returned at the conclusion of the hearing to make submissions concerning what orders I should make consequent upon the findings I make in relation to the applications.
The first application for contravention orders
The first application for contravention orders was filed by the father on 13 December 2011. It lists two counts of alleged contravention.
The first count allegedly occurred at 2.45 pm on Friday 9 December 2011 at Location 1 at Suburb F in Adelaide. The alleged contravention is said to be in breach of orders 10a and 20 of the parenting orders made by O’Reilly J on 9 May 2011. The statement of the alleged contravention is:
[The mother] didn’t not [sic] turn up with [N] for Handover without any excuse.
Orders 10a and 20 of the parenting orders made by O’Reilly J on 9 May 2011 provide:
10.The children spend time with the father:
a.on alternate weekends from after school Friday until 5.00pm Sunday, the first such weekend to coincide with that Friday upon which pursuant to the current week about arrangement the children would have commenced a week with the father.
…
20.All changeovers occur inside [Location 1 at Suburb F], unless pursuant to these orders time with either parent is to commence after school or conclude before school in relation to which changeovers be at the children’s school/s.
The second count allegedly occurred at 3.15pm on Friday 9 December 2011 at Suburb X School. The alleged contravention is said to be in breach of order 10a of the parenting orders made by O’Reilly J on 9 May 2011. The statement of the alleged contravention is:
The respondent without excuse didn’t allow [D] to attend school for collection.
Order 10a of the parenting orders made by O’Reilly J on 9 May 2011 is provided previously in this judgment.
The second application for contravention orders
The second application for contravention orders was filed by the father on 20 December 2011. It lists two counts of alleged contravention.
The first count allegedly occurred at 2.45 pm on Friday 16 December 2011 at Location 1 at Suburb F in Adelaide. The alleged contravention is said to be in breach of order 10c of the parenting orders made by O’Reilly J on 9 May 2011. The statement of the alleged contravention is:
The respondent without reasonable excuse refused to allow the applicant to spend time with the child [N].
Order 10c of the parenting orders made by O’Reilly J on 9 May 2011 provides:
10.The children spend time with the father:
c.half of the children’s school holidays period, being the first half in or commencing in the odd years and the second half in or commencing in the even years.
The second count allegedly occurred at 3.15 pm on Friday 16 December 2011 at Suburb X School. The alleged contravention is said to be in breach of order 10c of the parenting orders made by O’Reilly J on 9 May 2011. The statement of the alleged contravention is
[D] was not at school, therefore was not able to be collected. The respondent without reasonable excuse refused to allow the applicant to spend time with the child [D].
The Law
Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) contains provisions concerning applications for contravention orders. The following are the most relevant to these proceedings:
70NACMeaning of contravened an order
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order;
70NAEMeaning of reasonable excuse for contravening an order
(1) 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 affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b) the Court is satisfied that the respondent ought to be excused in respect of the contravention.
(3) If a Court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the Court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(4) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
70NAFStandard of proof
(1) Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
(2) Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.
(3) The Court may only make an order under:
(aa) paragraph 70NEB(1)(da); or
(ab) paragraph 70NECA(3)(a); or
(a) paragraph 70NFB(2)(a), (d) or (e); or
(b) paragraph 70NFF(3)(a);
if the Court is satisfied beyond reasonable doubt that the grounds for making the order exist.
70NBAVariation of parenting order
(1)A Court having jurisdiction under this Act may make an order varying a primary order if:
(a)proceedings in relation to the primary order are brought before a Court having jurisdiction under this Act; and
(b)it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i)the Court does not find that the person committed a contravention of the primary order; or
(ii)the Court finds that the person committed a contravention of the primary order.
(2)If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the Court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a)the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program;
(b)there was no post‑separation parenting program that the person who contravened the primary order could attend;
(c)because of the behaviour of the person who contravened the primary order, it was not appropriate, in the Court’s opinion, for the person to attend a post‑separation parenting program, or a part of such a program;
(d)the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3)This section does not limit the circumstances in which a Court having jurisdiction under this Act may vary a primary order.
Subdivisions C to E of Division 13A of the Act provide the orders available to the Court that can be made:
a)Where the contravention has been alleged but not established (Subdivision C);
b)Where the contravention is established but reasonable excuse for the contravention is found (Subdivision D); and
c)Where the contravention is found to have occurred without reasonable excuse, and the convention is “less serious” (Subdivisions E) or “more serious” (Subdivision F).
Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) outlines the procedure for the hearing of an application for contravention orders:
21.08 Procedure for hearing
At the hearing of an application mentioned in item 1A, 2, 3, 4, or 5 in Table 21.1, the Court must:
(a)“inform the respondent of the allegation;
(b)ask the respondent whether the respondent wishes to admit or deny the allegation;
(c)hear any evidence supporting the allegation;
(d)ask the respondent to state the response to the allegation;
(e)hear any evidence for the respondent; and
(f)determine the case.”
Previous applications for contravention orders filed in these proceedings
This is the first application for contravention orders filed in the proceedings between the parties.
Evidence and submissions of the parties concerning the father’s applications for contravention orders
The father filed an affidavit in support of the first application for contravention orders. It is a brief document. In total, it provides:
1.[The mother] did not turn up to [Location 1 at Suburb F], to handover [N] at 2.45 pm which had been agreed upon.
2.[D] was not at school for collection at 3.15pm, the school principal contacted the Father, [Mr Stubbs] and informed him that [D] had not been in school all week.
The father also filed an affidavit in support of the second application for contravention orders. It is a brief document. In total, it provides:
1.The mother didn’t turn up with [N] to [Location 1] at 2.45pm on the 16/12/11.
2.[D] was not at school for collection, father contacted mother via email to make handover at [Location 1], mother did not turn up with [D] for handover.
At the outset of the hearing, the mother’s counsel informed me that the mother was relying on an affidavit she filed on 15 December 2011 in support of an unrelated application to the Court.
The father’s affidavit filed on 31 January 2012, part of which is a response to the mother’s affidavit filed on 15 December 2011, was also referred to throughout the hearing.
The mother admitted both counts of this application at the outset of the hearing. The issue was therefore whether the mother had a reasonable excuse for the contraventions.
Both the father and the mother were examined and cross-examined at the hearing. The father’s evidence in chief was used primarily as a vehicle for the father to deny the mother’s version of the events during and after the children spent time with the father on the weekends of 12 November and 25 November 2011.
Counsel for the mother’s cross examination of the father considered, amongst other issues, the events of the weekend of 25 November 2011 during which the children spent time with the father as outlined in the mother’s affidavit filed 15 November 2011.
The mother was briefly examined by her counsel. The examination sought to establish the following:
a)That the father did not ask why the mother would not allow the children to spend time with him following her email dated 12 November 2011 (see paragraph [98] of the mother’s affidavit filed 15 December 2011).
b)The mother did not refer to the allegations against the father made by the children following the time they spent with the father on the weekend of 25 November 2011 as she did not want the father to “take it out” on the children (see Annexure B of the father’s affidavit filed 31 January 2013).
c)That her means of explaining to the father the reason she had stopped the children spending time with him from the 12 December 2011 was the filing of an Initiating Application on the 15 December 2011.
Counsel for the father’s cross examination of the mother concerned, inter alia, whether the mother had any medical evidence for her assertions that the child D’s behaviour conditions had been “exacerbated” upon spending time with the father.
The father’s final submissions were delivered first. Mr McQuade for the father argued that the mother has failed to establish a reasonable excuse for the admitted contraventions on the balance of probabilities. Mr McQuade noted that it was not sufficient that the mother had a genuine belief that her contraventions were necessary to protect the health or safety of the children. Rather, such a belief must also be held “on reasonable grounds”.
Counsel claimed that, given the child D’s myriad health issues, including a diagnosed attachment disorder, post-traumatic stress disorder and Asperger syndrome, the mother could not be satisfied on reasonable grounds that the father was the cause of the child’s problems.
Counsel drew attention to the fact that the mother attributed the child D’s diarrhoea to food poisoning when the child was not spending time with the father, but attributed the same to the father’s behaviour towards the child when the diarrhoea occurred when the child was spending time with the father. Mr McQuade noted that no medical evidence had been advanced to support the latter connection.
Counsel also rejected the mother’s contention that D was calmer when he was not seeing the father. He contended that there is no objective way of measuring this before the Court, as the mother has provided no objective evidence to that end. Counsel suggested the mother could have called the child’s general practitioner or specialists to provide such evidence, or called someone from the child’s school to provide comment.
Mr McQuade then noted that the child D was experiencing the issues that the mother alleges resulted from him spending time with the father on the weekend of 25 November 2011 sometime before this date. He referred to the letter from Mr BC dated 12 December 2011 (See Annexure NS4 filed by the mother on 15 December 2011). The letter provides:
[D] was referred by his mother, [Ms Stubbs], on 16 November 2011 for assessment and intervention for challenging and aggressive behaviours at home and school, difficulties with sleep and emotional regulation, bedwetting and general learning difficulties.
Counsel then referred to the email sent by the mother to the father on 29 November 2011 (see Annexure B of the affidavit filed by the father on 31 January 2012). Mr McQuade noted that the mother did not refer to the issues D was having with soiling himself nor to the appointments the child was to have with his general practitioner or any mental health experts. The mother also does not state that she will not be allowing the children to spend time with him on the 09 December 2011. The father did not discover this until he sought to confirm the handover time and place in his email sent on the day of the contravention (see Annexure B of the affidavit filed by the father on 31 January 2012).
In summary, Mr McQuade suggested that, whilst the mother has informed the Court of her subjective beliefs concerning the contraventions being necessary to protect the health or safety of the children, she had done nothing to show this belief was on reasonable grounds by proffering any objective evidence from health professionals to that end. Mr McQuade concluded that the mother had failed to establish a reasonable excuse.
Counsel for the father also suggested that the mother may not have even had a genuine belief that contravening the orders was necessary to protect the health or safety of the children. This suggestion was propagated with reference to the dispute concerning the payment of child support by the father raised by the mother in her email to the father dated 27 November 2011 (see Annexure B of the affidavit filed by the father on 31 January 2012). Counsel suggested that this non-payment may have been the motivating factor behind the mother’s admitted contraventions.
Ms Lee then delivered final submissions on behalf of the mother. Counsel commenced by asking that I place the contraventions in the broader context of the history of these proceedings.
Counsel then referred to the allegations made by the children as referred to in paragraph [79] of the mother’s affidavit filed 15 December 2011. Specifically, the allegations that the father was verbally and physically abusive towards the children when they were spending time with him on the 25 November 2011. Counsel stated that the mother believed her children when they made these allegations, and that it was not put to the mother that the children have a propensity to lie.
Counsel for the mother then referred to a history of non-compliance with the orders of this Court following orders in May 2011. She claimed that the father spent very little time with the children between July and November 2011. The mother’s claim is that, whilst D was experiencing various issues, these issues became “exacerbated” from early December 2011 after the children had been spending time with the father in November of that year.
Counsel for the mother concluded that although D has significant behavioural issues that have been demonstrated frequently, his behaviour has “settled” through the period of May 2011 to November 2011, prior to spending time with the father, and has subsequently been “exacerbated” following the time spent with the father. As such, counsel for the mother claimed that the mother had a reasonable excuse for the admitted contraventions.
Consideration of the father’s applications for contravention orders
The mother admits the four counts of contravention that form the substance of these two applications for contravention orders. She claims to have a reasonable excuse for these contraventions. The mother must prove on the balance of probabilities that she had a reasonable excuse for this contravention (Section 70NAF(1)–(2)).
Section 70NAE of the Act provides a list of circumstances in which a person may be taken to have had a reasonable excuse for contravening an order. This is not an exhaustive list.
Subsection 70NAE(5) provides that that a person is taken to have had a reasonable excuse for contravening an order which concerns the time a child is to spend with a person if the “respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child.)” In addition, the period during which the child and the person did not spend time together must not be “longer than was necessary to protect the health or safety” of the child.
There are multiple considerations, both subjective and objective, involved in applying subsection 70NAE(5) to the facts of these applications for contravention orders.
Firstly, there is the issue of whether the mother believed on reasonable grounds that not allowing the children and the father to spend time together was necessary to protect the health and safety of the children. This issue has a subjective element (consideration of whether the mother actually believed that not allowing the children and the father to spend time together was necessary to protect the health and safety of the children) and an objective element (consideration of whether this belief of the respondent was held on reasonable grounds).
Secondly, there is the consideration of whether the period during which the children and the father did not spend time together was “longer than was necessary to protect the health or safety” of the children pursuant to s 70NAE(5)(b) of the Act.
The submissions as to reasonable excuse of the mother in relation to the counts that make up the two sets of applications for contravention orders were not dealt with separately. I deal with the four counts across the two applications together.
I agree with the comments of counsel for the father made at the commencement of the hearing that, given the mother allowed the children to spend time with the father on the weekend of the 25 November 2011, the reasonable excuse for the admitted contraventions must have arisen following this date.
I turn first to the issue of whether the mother genuinely believed that not allowing the children to spend time with the father on the dates of the admitted contraventions was necessary to protect the health or safety of the children.
I accept that the evidence supports a finding that the mother did genuinely hold such a belief. I reject the submission of counsel for the father that the mother’s reason for contravention was in response to the father’s failure to pay child support. This was not an issue about which I had the benefit of the mother’s evidence.
The fact that the mother filed a Further Initiating Application and supporting affidavit seeking to discharge the existing parenting orders days after the first date of contravention further supports this conclusion that the mother’s belief was genuine.
However, I am not satisfied on the balance of probabilities that the mother’s belief was held on reasonable grounds.
D has numerous significant behavioural difficulties. The letter from Mr BC dated 12 December 2011 (See Annexure NS4 filed by the mother on 15 December 2011) confirms that D’s behavioural issues were occurring at least from 16 November 2011 onwards. This is further confirmed upon consideration of the notices of suspension from school concerning D dated 9 November 2011 and 18 November 2011 (See Annexure NS3 filed by the mother on 15 December 2011).
Given the burden of proof in establishing a reasonable excuse for the contraventions on the balance of probabilities is with the mother (s 70NAF of the Act), the mother needed to advance some sort of objective evidence of the worsening of D’s behavioural issues upon his commencing to spend time with the father. It was not enough for the mother to seek to differentiate between the behavioural issues of D being caused by his Asperger syndrome and other mental health issue, and the behaviour issues she alleged were caused by the time the child spent with his father without providing some independent or objective evidence.
I am also not satisfied that the allegations made by the children following their time with the father on 25 November 2011 (see generally paragraph [79] of the mother’s affidavit filed on 15 December 2011) provide the requisite reasonable grounds for the mother’s belief. Given the history of these proceedings, and the fact that the children were aged eight and four at the time the allegations were made, these allegations do not in themselves substantiate a reasonable excuse for contravening orders of this Court.
Given my finding that the mother’s belief that contravening the orders was necessary to protect the health or safety was not held on reasonable grounds, I do not need to consider whether the period the children and the father did not spend time together was “longer than was necessary to protect the health or safety” of the children per s 70NAE(5)(b) of the Act.
The list of potential reasonable excuses for contravention in section 70NAE is not exhaustive. I must also find that the mother did not have a reasonable excuse for her contraventions that is not within this list.
Counsel for the mother did not advance any submissions concerning reasonable excuse that were separate from the concerns that the mother had about the health and safety of the children in the presence of the father.
I refer to the comments of Warnick J sitting as a single judge of the Full Court of the Family Court of Australia in Childers v Leslie (2008) 39 Fam LR 379 at 384:
[22]As earlier seen, s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found. While it is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse, a much more difficult question is whether, if the circumstances seem to fit within the character of those set out in a subsection, that subsection describes the limits within which reasonable excuse may be found. For example, could a respondent who genuinely believed that contravention was necessary to protect a child’s health, but who had no reasonable grounds for that belief, nonetheless be found to have had a reasonable excuse for contravention or, might a person who contravened an order to protect a child’s health be found to have had a reasonable excuse for contravention, notwithstanding that the retention was for longer than was necessary to protect the child’s health.
[23]The first example might be addressed by regarding the term “reasonable excuse” in s 70NAE(1) as being an objective test, albeit one that might include “subjective” aspects. Thus, the term “reasonable excuse” in subsection (1) would match the term “on reasonable grounds” in subsection (5). If this approach was taken, the same result would be achieved whether subsection (5) was expressly relied upon or not. While this conclusion does not mean that subsection (5) must be applied whenever it can “fit” the circumstances, it certainly does not support an opposite conclusion.
[24]While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “…necessary to protect the health…” and “…not longer than was necessary”, which if not met will exclude some “excuses”. I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection. So, as to the second example given in the preceding paragraph, without such an additional circumstance, it would not be open to find reasonable excuse in respect of a contravention for a period that exceeded that which was necessary to protect a child’s health.
In reliance on the abovementioned comments of Warnick J, I find that the mother did not have a reasonable excuse for the admitted contraventions for any reason that is not provided for in the non-exhaustive list at s 70NAE of the Act.
Submissions of parties concerning the orders to be made consequent upon my findings in relation to the two applications for contravention orders
I heard submissions from the parties as to the orders I should make consequent upon my findings in relation to said applications at the conclusion of the hearing on 10 May 2013.
The father seeks a variation of the parenting orders that would give him more time with the children on weekends. He also seeks “makeup time” for the weekend and half of the long school holiday period during which the children did not spend time with him as a result of the contraventions by the mother in the first and second applications. The father’s counsel suggested that the latter period of “makeup time” could be arranged by giving the father an additional week in the next three school holiday periods. The father also sought that the mother be placed on a two year good behaviour bond, a condition of which would be that the mother is not to contravene any orders of this Court during the period of the bond.
The Independent Children’s Lawyer contended that the contraventions should be dealt with under Subdivision E of Division 13A of the Act as “less serious contraventions” if the mother fails to establish a reasonable excuse for her contraventions. The Independent Children’s Lawyer further suggested that no orders should be made consequent upon my findings relating to the first two applications for contravention orders until the remaining application for contravention orders (filed by the father on 6 February 2013) is dealt with.
The mother largely adopted the submissions of the Independent Children’s Lawyer with regard to no action being taken until the remaining application for contravention orders is finalised. The mother was opposed to any makeup time being ordered between the children and the father as the father was currently on bail relating to criminal charges. A provision of the bail bond is that the father is prevented from communicating with the child D or the mother.
In reply, the father disagreed that an adjournment was necessary to allow the final application for contravention orders to be dealt with. The father’s counsel suggested that the mother could amend her recently filed Initiating Application to include seeking a variation of any orders made by myself in response to these applications for contravention orders.
Consideration of the orders to be made consequent upon my findings in relation to the two applications for contravention orders
Consideration of whether to apply Subdivision E or Subdivision F of Division 13A of Part VII of the Act
The first issue is whether these contraventions should be dealt with under Subdivision E of Division 13A of Part VII of the Act as “less serious contraventions” or under Subdivision F of the same as “more serious contraventions.”
Subdivision F will only apply if either of the conditions in s 70NFA(2) or s 70NFA(3) of the Act are satisfied. Subsection 70NFA(3) is inapplicable as this is the first occasion on which the mother has been found to have contravened an order of this Court without reasonable excuse.
Subsection 70NFA(2) of the Act does not require the mother to have previously been convicted of contravening an order of this Court without reasonable excuse. Rather, it requires me to be satisfied that the mother has “behaved in a way that showed a serious disregard of his or her obligations under the primary order.”
However, I retain a discretion to apply the provisions of Subdivision E if I am satisfied that “it is more appropriate for that contravention to be dealt with under Subdivision E” (s 70NFA (4)).
Counsel for the father made no submissions concerning s 70NFA(2) of the Act. The orders sought by the father, being “makeup time”, a bond, and a variation of the existing parenting orders, are all available under Subdivision E. The Independent Children’s Lawyer contended that I should apply Subdivision E. For these reasons, I am not satisfied that the mother has “behaved in a way that showed a serious disregard of his or her obligations under the primary order.”
This conclusion is confirmed upon considering the case law in relation to the meaning of “serious disregard” in the context of s 70NFA(2). The following comments of the Full Court of the Family Court (comprised of Faulks DCJ, Kay, and Penny JJ) in Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 (5 July 2007) are instructive:
[53]Even though the various degrees of culpability for contravening children’s orders involving the concept of “serious disregard” were first introduced into the Act in 2000, there is as yet surprisingly little jurisprudence on what might be seen as constituting such circumstances.
[54]The Further Revised Explanatory Memorandum that accompanied the Family Law Amendment Bill 2000 (Cth) stated:
43What amounts to a serious disregard will depend on the circumstances of the case and the terms of the parenting order but, by way of example, could include the kidnapping of a child or harassment despite repeated warnings.
[55]The Revised Explanatory Memorandum that accompanied the Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth) stated:
307What amounts to a serious disregard will depend on the circumstances of the case but, by way of example, could include the removal of a child to another place despite orders of the court or harassment despite repeated warnings and the terms of the parenting order.
[61]The theme that emerges from an examination of several of decisions by Federal Magistrates is that “serious disregard” tends to be found in cases of deliberate, pre-meditated non-compliance with the orders; and continued and protracted breach.
…
[66]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 wilful 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.
I proceed to apply the provisions of Subdivision E. However, I draw the mother’s attention to the comments of Faulks DCJ, Kay and Penny JJ in Elspeth & Peter; Mark & Peter and John & Peter (Penalty and Costs) [2007] FamCA 1072 (13 September 2007) at [11] concerning Subdivision E of Division 13A of Part VII of the Act:
The singularly most significant result of an imposition of a penalty in this case is that any subsequent proven contraventions of the orders may attract the more serious penalties under Subdivision F of Division 13A of Part VII of the Act including the imposition of a fine or a sentence of imprisonment (see s 70NFA(3)(a)).
I refer to and rely upon the comments of Cronin J in McClintock & Levier (2009) 41 Fam LR 245 at 283 that “[t]he focus of a court therefore in dealing with a contravention application under Div 13A must be in making orders which will enforce future compliance with its orders” (to similar effect see Coleman J at 270, cf Finn J at 256). This conclusion is reinforced upon consideration of s 70NAA of the Act, which states:
70NAASimplified outline of Division
(1)This division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this act affecting children.
Consideration of what orders, if any, should be made under Subdivision E of Division 13A of Part VII of the Act
On 29 May 2013, the parties in this matter appeared before Cronin J. The purpose of that hearing was to consider the interim orders sought in an Initiating Application of the mother filed on 2 May 2013 (days before I heard these applications for contravention orders). The initiating application asks for the vast majority of the parenting orders made by O’Reilly J on 9 May 2011 to be discharged, including those that form the substance of these applications for contravention orders. The mother also asked for those orders to be suspended pending the final hearing.
The father’s responding documents, which were filed on 16 May 2013 (days after I heard these applications for contravention orders) also seek for the parenting orders made by O’Reilly J on 9 May 2011 to be discharged, including those that form the substance of these applications for contravention orders. The father also asked for those orders to be suspended pending the final hearing.
In an ex tempore judgment delivered on 30 May 2013, Cronin J found that the evidence that was before him supported the conclusion that it was appropriate to suspend all of the parenting orders made by O’Reilly J on 9 May 2011 as they relate to the child D until further order of this Court.
Cronin J did not suspend the parenting orders as they relate to the child N. Instead, his Honour ordered that the time the child N was to spend with the father was to recommence.
A primary reason for the suspension of the parenting orders relating to the child D was that the father has been charged with aggravated assault of the child arising out of an incident in January 2013. A condition of the father’s bail is that he is not to come into contact with the child D.
Given the findings of Cronin J, the submissions of the parties as summarised above concerning any “makeup time” that should be ordered arising out of the applications for contravention orders before me will need to be updated.
I therefore propose to adjourn the proceedings before me pursuant to s 70NEB(1)(c) of the Act to a date to be advised by the Docket Registrar upon notification that these criminal proceedings against the father have concluded.
I propose to also consider the outstanding application for contravention orders filed by the father on 6 February 2013 at the adjourned date. As noted earlier in this judgment, that application for contravention orders had also been adjourned to a date to be advised by the Docket Registrar upon notification that the criminal proceedings against the father have concluded.
This adjournment does not impact upon my findings above concerning the applicability in these applications for contravention orders of Subdivision E as opposed to Subdivision F of Division 13A of Part VII of the Act. Counsel for the parties and the Independent Children’s Lawyer should be prepared to address me at the adjourned date as to the orders I should make under Subdivision E.
Conclusion
In summary, I note I have found the following:
(a)With regards to the first count in the father’s first application for contravention orders filed on 13 December 2011 concerning the first alleged contravention on 9 December 2011, I found that the mother failed to establish on the balance of probabilities a reasonable excuse for the admitted contravention.
(b)With regards to the second count in the father’s first application for contravention orders filed on 13 December 2011 concerning the second alleged contravention on 9 December 2011, I found that the mother failed to establish on the balance of probabilities a reasonable excuse for the admitted contravention.
(c)With regards to the first count in the father’s second application for contravention orders filed on 20 December 2011 concerning the first alleged contravention on 16 December 2011, I found that the mother failed to establish on the balance of probabilities a reasonable excuse for the admitted contravention.
(d)With regards to the second count in the father’s second application for contravention orders filed on 20 December 2011 concerning the second alleged contravention on 16 December 2011, I found that the mother failed to establish on the balance of probabilities a reasonable excuse for the admitted contravention.
The issue of what, if any, orders I should make as a consequence of these findings is adjourned to a date to be advised by the Docket Registrar upon receiving notification that the criminal proceedings against the father have been finalised. I make this order pursuant to s 70NEB(1)(c) of the Act.
The question of the costs of these applications for contravention orders will be heard before me on the adjourned date.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 11 June 2013.
Associate:
Date: 11 June 2013
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