Sully & Anor and Moore

[2016] FamCA 658

FAMILY COURT OF AUSTRALIA

SULLY AND ANOR & MOORE [2016] FamCA 658

FAMILY LAW – ORDERS – Contravention – where allegation that children not made available for time ordered – where respondent father asserts reasonable excuse – where reasonable excuse established – application dismissed.

Family Law Act 1975 (Cth) ss 4, 70NAE, 70NAF, 70NEA, 70NEB

1st APPLICANT: Mr Sully

2nd APPLICANT: Ms Sully

RESPONDENT: Mr Moore

FILE NUMBER: DUC 203 of 2010

DATE DELIVERED: 12 August 2016

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 22 July 2016

REPRESENTATION

SOLICITOR FOR THE 1ST APPLICANT: Longman Hill Solicitors

SOLICTOR FOR THE 2ND APPLICANT: Longman Hill Solicitors

COUNSEL FOR THE RESPONDENT: Litigant in person

Orders

1. That the Application-Contravention filed 23 October 2015 is dismissed.

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 Sully and Anor & Moore 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).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: DUC 203  of 2010

Mr Sully and Ms Sully

Applicant

And

Mr Moore

Respondent

REASONS FOR JUDGMENT

1. The matters for determination are the allegations by the applicant maternal grandparents that the respondent father has without reasonable excuse not facilitated the applicants spending time with the subject children as provided for in consent orders made on 13 November 2014. The subject children are B born … 2007 and C born … 2008.

2. Those orders provided:

   1.        That all previous parenting orders be discharged.

   2.That the Father and the Maternal Grandparents shall have Equal Shared Parental Responsibility for the children [B] (born … 2007) and [C] (born … 2008) (“the children”).

   3.        The children shall live with the Father.

   4.The Maternal Grandparents shall spend time with the children as follows:

   4.a.1.   For the third and the seventh weekend of each school term, from 7pm Friday to 4pm Sunday on such weekends unless otherwise agreed between the parties or as otherwise provided for in these orders.

   4.a.2.   In the event that there is a long weekend occurring during the term time, the Maternal Grandparents are permitted to vary the weekend in order 4.a.1 above, upon notice being provided no later than 4pm on the first Friday of the school term, so that the weekend shall arise on the long weekend and their time shall be extended and shall conclude at 4pm on the Monday.

   4.a.3.   At any other times as agreed in writing by the parties.

   Time with the Mother

   5.That the parties are restrained from allowing the children to spend any time with the Mother or come into contact with the Mother by any means, unless such time is supervised and shall be at such times, on such dates and with such supervisor as agreed between the parties in writing or by order of the Court.

   Changeovers

   6.That for the purpose of changeover, the parties or their nominees (who must be known to the children) shall meet at [D Town] McDonalds at the commencement of the Maternal Grandparent’s time with the children, and shall meet at [E Town] McDonalds at the conclusion of the Maternal Grandparent’s time with the children, or other such as may be agreed between the parties.

   Special Days and Holiday Time

   7.That the children shall spend the following holidays periods of time with the Maternal Grandparents:

   a.        During each of the shorter school term holidays, with such days and times to be agreed between the parties, however failing agreement, from 12pm on the first Saturday of the school holidays to 12pm on the second Sunday, in even numbered years, and in each odd numbered year, from 12pm on the middle Saturday of the school holidays to 12pm on the day prior to the commencement of the new school term including any staff development or pupil free days, or Public holidays).

   b.        During the Christmas School holidays in 2014 and each alternate year thereafter, from 12pm on the first Saturday after the end of the fourth term and concluding at 12pm Saturday three (3) weeks later, unless otherwise agreed in writing.

   c.        During the Christmas School holidays in 2015 and each alternate year thereafter, ending at 12pm on the Saturday prior to the commencement of the new school year and commencing at 12pm on the Saturday three (3) weeks prior, unless otherwise agreed in writing.

   8.That the Father shall spend time with the children during the balance of all school holiday periods not provided for under Order 7 above.

   Suspension of the Maternal Grandparents time

   9.That the Maternal Grandparent’s time shall be suspended on the weekend that Father’s Day arises and they shall be permitted to nominate the weekend immediately preceding or following the Father’s Day weekend in substitution.

   Telephone Communication

   10.That the subject children shall have liberal telephone communication with the Maternal Grandparents and the subject children’s half siblings via their home telephone, and in any event each Tuesday, on each of the subject children and their half-siblings birthdays, Easter Sunday and Christmas Day, between 6pm-7pm (or other such night agreed between the parties) and the Maternal Grandparents shall initiate the telephone communication to the Father’s home number, and the father shall ensure that the children are afforded peace and privacy to maximize this communication;

   11.That the each party shall permit the subject children to have telephone communication with the other party and the subject children’s half siblings via their home phone, when such communication is requested by the children and the parties  shall ensure that the children are afforded peace and privacy to maximize this communication;.

   12.That the Maternal Grandparents shall permit the subject children to have telephone communication with the Father via their home phone, on any Tuesday when they are not his care, as well as on Easter Sunday and Christmas Day, from 6pm-7pm and the Maternal Grandparents shall ensure that the children are afforded peace and privacy to maximize this communication;

   Exchange of Contact information

   13.That each party provide the other with their residential address, contact landline and mobile telephone number and email address and shall keep those details updated.

   14.The father shall provide at least 21 days’ notice of any proposed change in the residential address of the children.

   Non-denigration

   15.That each party be and is hereby restrained from denigrating or criticizing the other party, or members of that other parties' family or household in the presence or hearing of the children and each party shall use his/her best endeavours to prevent any third party from doing so.

   Participation at School and in extra-curricular events

   16.That the Father and the Maternal Grandparents shall be at liberty to attend any school or extra-curricular events that the children attends that a parent would normally be at liberty to attend notwithstanding that the event falls outside either parties with the children as set out in these orders.

   Medical

   17.In the event the children suffers from serious illness or hospitalization the party who is caring for the children shall notify the other party as soon as practicable of the ill health and shall give all authorities to permit both parties to speak with all treating medical and allied health practitioners and these orders shall sufficient authority for this purpose.

   School Reports

   18.That the parties are able to obtain as they may from time to time request copies of all school reports, newsletters, school photo order forms in relation to any school that the children may from time to time attend, and these orders shall sufficient authority for this purpose.

   Parenting Course

   19.That the father shall within 6 months of the date of these orders, enrol and complete a Parenting after Separation Course (such as the “Parents not Partners” Course run by Interrelate or similar as ICL approves).

   BY CONSENT IT IS NOTED THAT:

   A.That in the exercise of the Parental Responsibility both parties are to consult with each other and shall consider the other party’s opinion when coming to the decision about all long term parenting matters.

   IT IS FURTHER ORDERED THAT:

   20.Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “B” attached hereto and these particulars are included in these Orders.

   21.The application for costs by the Independent Children’s Lawyer is dismissed.

3. The Application – Contravention filed by the applicants on 23 October 2015 assert to alleged contraventions:

   a)That on 4 July 2015 at 12.00 pm at D Town McDonald’s Restaurant the respondent without reasonable excuse did not attend the changeover venue or otherwise make the children available to the applicants for the purpose of spending holiday time; and

   b)That on 26 September 2015 at 12.00 pm at D Town McDonald’s Restaurant the respondent without reasonable excuse did not attend the changeover venue or otherwise make the children available to the applicants for the purposes of spending holiday time.

4. It is alleged that the above conduct is in contravention of Orders 6 and 7(a) made on 13 November 2014. Those orders are set out above. The respondent denied the asserted contraventions.

5. The hearing as to the contravention application was on 22 April 2016. On that day orders were made by consent varying changeover arrangements for the applicants’ time with the children.

6. Judgment was reserved in relation to the contravention application on 22 July 2016.

Contravention

1. These are proceedings under the provisions of s 70NEA of the Family Law Act 1975 (Cth) (“the Act”). In summary, the section applies if the Court is satisfied that a person has committed a contravention of a primary order and the person does not prove that he or she had a reasonable excuse for the current contravention and the Court has previously not made an order imposing a sanction or taking an action in respect of a contravention by the person of the primary order or otherwise adjourned proceedings in respect of a contravention by the person of the primary order.

2. Section 70NEB sets out the powers of the Court in circumstances where a contravention is found proved under the provisions of s 70NEA.

3. A “primary order” is defined in s 4 of the Act to mean “an order under this Act affecting children and includes such order as varied”.

4. The primary orders are clearly orders affecting the subject children.

Reasonable Excuse

1. Section 70NAE sets out the circumstances in which a person may be taken to have had a reasonable excuse for contravening an order under the Act affecting children. They include, but are not limited to, circumstances set out in subsections (2), (4), (5), (6) and (7).

2. Section 70NAE provides relevantly:

   (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)  …

   (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)  …

   (7)  …

3. The Respondent father does not contend that he contravened the Orders because, or substantially because, he did not, at the time of the alleged contraventions, understand the obligations imposed by the Order on him (s 70NAE(2)).

4. Accordingly, the Court must turn to look as to whether within the terms of s 70NAE or otherwise the Respondent had a reasonable excuse for contravening the subject orders.

The Applicants’ Evidence

1. The applicants’ evidence comprised two affidavits sworn by the first applicant maternal step grandfather Mr Sully (Exh A and B). He was not cross-examined.

2. As to the first contravention the first applicant says that on 1 July 2015 he received a text message from the respondent stating that he would not be making the children available at changeover on 4 July 2015. He asserts there was no reason given for the children not being made available. The first applicant responded to the text message informing the respondent that he and his wife the second applicant would be attending in accordance with the orders to collect the children. He says that on 4 July 2015 his daughter attended at the changeover place to collect the children. She was there from 11.15 am to 1.30 pm. The children were not made available by the respondent.

3. As to the second contravention the first applicant says that on 26 September 2015 he attended the changeover point to collect the children for school holiday contact. He was at the changeover point from 11.30 am to 1.30 pm and whilst waiting at the changeover point he sent to the respondent two text messages but did not receive a response. The children were not made available by the respondent.

4. The first applicant in his further affidavit filed on 11 December 2015 raises allegations as to further contraventions by the respondent on 23 October 2015 and 20 November 2015. These alleged contraventions are not the subject of the application filed on 23 October 2015 and need not be considered.

The Respondent’s Evidence

1. The respondent relied upon his affidavit sworn on 13 February 2016 and filed on 16 February 2016. He was not cross-examined.

2. The respondent gives evidence that the applicants reside in a rural property at F Town, New South Wales. The housing comprises of a caravan and annex. The structure comprises a bedroom at each end of the caravan with a shower cubicle in the centre which separates the bedrooms. The annex comprises the applicants’ bedroom and lounge room. There is an outside toilet. Electricity is supplied to the structure by way of solar panel and backup generator. Water is from tank water and there is no plumbing system.

3. In September 2013 the first applicant informed the Department of Family and Community Services that the applicants intended to build a new house at the site and that that building would be completed about six weeks thereafter. On 13 November 2014 it was clear that the new home had not been built and that there was some urgency in order to provide more suitable accommodation for the children. The respondent asserts that on 13 November 2014 in evidence the first applicant informed the Court that the new home would be complete “after summer”.

4. The respondent says that by reason of the assurances of the first applicant he was of the view that his housing concerns would “only be short lived”.

5. The respondent says that on the children being returned to him on Monday 8 June 2015 following a long weekend with the applicants he observed that the children’s fingernails were dirty and on closer inspection the children were un-clean. The children informed him that they had not showered since leaving home with the respondent on Friday 5 June 2016. They informed the father that at the applicants’ structure “there was no power” as there was no fuel for the generator.

6. On returning home the respondent sent a text message to the applicants asking for an explanation as to why the children had not showered. He received no response. The respondent says that he held significant concerns in relation to the applicants’ premises as they also had living with them four other children, half siblings of the subject children. This prompted the respondent to contact the Department.

7. Subsequently it was necessary for the respondent to take the child B for medical attention for an intestinal parasite common in circumstances of poor sanitary conditions. This heightened the respondent’s concern as to the applicants’ living circumstances.

8. The respondent on 30 June 2015 informed the applicants that the children would not be made available for the eight night school holiday period but would be made available for a shorter period on 10 July 2015. In response he was threatened with contravention proceedings.

9. He did not make the children available on 4 July 2015.

10. The children did spend time with the applicants on the last weekend in August 2015. The children reported no change in the applicants’ living circumstances.

11. Several days later the child C fell ill with an ear infection and was absent from school for two days. This reignited the respondent’s concerns.

12. The children were not made available for the school holiday period commencing 26 September 2015.

13. The respondent asserts that his conduct was out of concern for the children’s health having regard to the applicants’ living circumstances and their failure to provide proper accommodation circumstances for the children. The applicants were not cross examined.

Discussion

1. Section 70NAF provides that the onus is on the respondent to prove such a reasonable excuse on the balance of probabilities. The respondent was not cross-examined as to his concerns or actions taken by him in relation to the children’s health and safety. His evidence is thus accepted.

2. It is readily apparent that the respondent acted out of concern for the safety, health and wellbeing of the children arising from his understanding of the applicants’ habitation circumstances that were not contested by the applicants.

3. The respondent after the first alleged contravention made the children available for a shorter weekend period with it appears adverse results for the child C. The applicants thereafter resumed time with the children by agreement in Term 2 2016 following orders on the 22 April 2016 that noted:

   A.        The resumption the maternal grandparents’ time with the children is as a consequence of the father’s expectation that the children will be provided with proper care at all times that they are with the maternal grandparents including the provision of ordinarily expected residential amenities.

1. It was appropriate that time thereafter resume.

2. In all the circumstances the respondent had a reasonable excuse for the alleged contraventions.

3. The Application – Contravention filed 23 October 2015 is dismissed.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 12 August 2016.

Associate: 

Date:  12 August 2016