Tasman & Tisdall

[2008] FamCA 458

FAMILY COURT OF AUSTRALIA

TASMAN & TISDALL [2008] FamCA 458

FAMILY LAW – ORDERS – Contravention – application alleging mother contravened without reasonable excuse orders that father spend time with the child – whether intentionally failed to comply or made no reasonable attempt to comply – consideration of terms of order – difficulty in interpretation – order did not specify when father’s weekend time with child was to commence or conclude – not satisfied mother intentionally failed or made no reasonable attempt to comply with order – mother had reasonable excuse in any event under ss 70NAE(2) and 70NAE(5) – application dismissed.

FAMILY LAW - COSTS – father to pay mother’s costs of and incidental to contravention application as agreed or taxed.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NCB, 70NFB &117

APPLICANT: Mr Tasman

RESPONDENT: Ms Tisdall

FILE NUMBER: ADC 2845 of 2007

DATE DELIVERED: 20 June 2008

PLACE DELIVERED: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 20 June 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: Ms J.N. Milen

SOLICITOR FOR THE RESPONDENT: Jo-Anne Milen & Associates

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Legal Services Commission of South Australia

Orders

1. Leave is given to the father to issue a subpoena to produce documents to the F Medical Centre in relation to all their case notes, documents and records concerning the two children C, born on the … September 1992 and M, born on the … July 1994, such subpoena to be returnable before a Registrar in the usual course.

2. The Application in a Case filed by the father on the 30 April 2008 is dismissed.

3. The Contravention Application of the father filed on the 9 July 2007 is dismissed.

4. That the father pay the costs of the mother of and incidental to the application for Contravention such costs to be agreed within twenty-one [21] days from today and failing agreement as taxed in accordance with the appropriate solicitor/client costs scale.

IT IS NOTED that publication of this judgment under the pseudonym Tasman & Tisdall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2845 of 2007

MR TASMAN

Applicant

And

MS TISDALL

Respondent

EX-TEMPPORE REASONS FOR JUDGMENT

Introduction

1. The contravention application which is listed for hearing before me today is the contravention application of the father filed on 9 July 2007.  That contravention application relates to an allegation that the mother has contravened the order of Judicial Registrar Forbes made on Wednesday, 13 June 2007 so far as it relates to the father spending time with M.

2. The specific allegations of the contraventions are that the respondent mother, “without reasonable excuse, refused to allow and/or facilitate and to do all things to encourage” the child M to spend time with the father on the weekends commencing Friday, 22 June, Friday, 29 June and Friday, 6 July.

3. For the purposes of hearing the contravention applications, I received before me today the affidavit of the father also filed on 9 July and a most recent affidavit, which I received this morning.  I also heard the oral evidence and cross‑examination of the father.

4. The mother indicated that she did not admit that she had contravened the order on any of those occasions.  The mother relied upon her affidavit which was filed on 12 June 2008 and an affidavit of Ms H filed on 19 October 2007, to which is annexed a report of child psychiatrist Dr P.  I heard the oral evidence of the mother.  She was cross‑examined.  I heard final submissions from the parties.

Discussion

1. The first step that is necessary is to determine whether there has been a contravention of the order.  The particular order concerned is one which needs to be read specifically, as it is worded, in the order of Wednesday, 13 June 2007.  It says in paragraph 4, "That the child [M] spend time with the father each weekend."  That order was to apply during the period of the adjournment, which was to 6 August 2007.

2. The hearing before Judicial Registrar Forbes on Wednesday, 13 June was a hearing by way of interim order.  Mr Merritt represented the mother and the respondent father appeared in person.

3. I turn to consider the specific provisions of the Family Law Act, and in particular those provisions of Division 13A of Part VII which relate to consequences of failure to comply with orders and other obligations that affect children.

4. Specifically, the meaning of "contravention" is set out in section 70NAC, which says:

   “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.”

5. Subparagraph (b) refers to intentionally preventing compliance by a person who is bound by it or aiding or abetting that contravention. So the particular reference that is necessary for me to consider in this matter is section 70NAC(a).

6. When determining, therefore, whether the mother has intentionally failed to comply with the order or made no reasonable attempt to comply with the order, the terms of the order must be considered.  The specific order was, "That the child [M] spend time with the father each weekend."  It is implied in that order, of its very nature, that the mother assist by ensuring, so far as she can, that the order is obeyed.  At that time the child M was residing with the mother, this being a short time after the commencement of further proceedings in this Court at the end of May 2007, there having been further earlier proceedings before the Court for some years prior to that.

7. The difficulty the Court faces is to interpret the meaning of the order "that the child [M] spend time with the father each weekend".  The mother puts to the Court that she interpreted that order to mean that M spend some time with the father on each weekend.  The father appears to assert that that order means that the child M spend each weekend with the father.

8. These certain alternative “suggestions” are not in the order itself.  The order does not say "that the child [M] spend some time" - with emphasis on the word "some" - "with the father each weekend"; nor does it say "that the child [M] spend each weekend with the father".  The interpretation is therefore one that is disputed by each of the parties.

9. In order to determine whether the mother has intentionally failed to comply with the order or made no reasonable attempt to comply with the order, it is therefore necessary to determine what has been established concerning the mother's understanding of the order before she can be deemed to have intentionally failed to comply with the order or to have made no reasonable attempt to comply with the order.

10. The evidence of the mother, which was given during her oral evidence and upon which she was cross‑examined, was consistent with the affidavit evidence provided by the mother about her attitude to this order at the time of the specific alleged contraventions, namely for the weekends in late June and early July.

11. The evidence of the mother is that, shortly after the order was made, she offered the father time with M on each weekend, being from 1 pm to 5 pm on either each Saturday or on each Sunday.  The evidence, which I accept, is that the father indicated that he believed that the order required the mother to provide M to him from each Friday afternoon to each Monday morning.  (Indeed, his interpretation is consistent with his wording in the contravention application, namely that the time was from “3.15 at the finish of school on Friday, 22 June 2007 until 8.40 am on Monday, 25 June 2007”).  There is specifically nothing in the order of Judicial Registrar Forbes that specifies either the conclusion of school or the commencement of school, nor does the order of Judicial Registrar Forbes specify any way of ascertaining when the time spent was to commence or when it was to conclude.

12. The mother further asserts that the father did not accept the offer of 1 pm to 5 pm on either a Saturday or a Sunday.  She interpreted this on the basis that he indicated he was insisting upon the whole of each weekend.  I accept that it was reasonable for her to interpret his reply as a rejection of her offer to “go slowly and start with a period of four hours”.  (Mother’s evidence).

13. The difficulty the father faces in applying for a contravention of this order is that the mother offered to allow him to spend time with M on each weekend but that he formed a different interpretation of the order.  I conclude that the mother was reasonable in her assumption that that meant the father had rejected the offer of the time she had suggested.

14. I am satisfied that the mother did believe the orders meant that she should arrange for M to spend time with the father on each weekend but that the order did not mean that she was required to ensure that M spent all of each weekend with the father.

15. Because of the unfortunate wording of Judicial Registrar Forbes' order in paragraph 4, I am not satisfied that the mother, while bound by the order, has intentionally failed to comply with the order.  Nor am I satisfied that she made no reasonable attempt to comply with the order.  Her attempt to comply with the order was the offer of four hours each weekend, the response to which was the husband saying that he wanted the whole weekend.

16. If I am wrong in my interpretation of the definition of "contravened an order" and my interpretation of the particular wording of paragraph 4 of Judicial Registrar Forbes' order, it would then be necessary to consider whether the facts indicate that the mother had a reasonable excuse for the contravention.

17. If the father were correct (and I have found that I do not consider he is) that the mother was obliged to send M each weekend for the whole of the weekend, then the mother asserts that she would have had reasonable excuse based on her concern about the child's health and the child's attitude in relation to the matter.

18. Section 70NAE of the Act refers to definitions of "reasonable excuse" and says:

    “A person 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. ”

19. The mother has given her version of her understanding of her obligations under the Act. I am satisfied that that evidence she has given would bring her within the definition of section 70NAE(2)(a) in that, if there was an obligation upon the mother to provide time spent with M from the conclusion of school on Friday to the commencement of school on Monday each weekend, I am satisfied that she did not understand that obligation. In the circumstances, particularly because of the poor wording of the order of Judicial Registrar Forbes, I am also satisfied that she ought to be excused in respect of that contravention.

20. There is a further definition of "reasonable excuse" in relation to orders concerning children. Section 70NAE(5) says:

    “A person 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). ”

21. If I am wrong in my interpretation that the mother has not contravened the order I consider the further step of the possibility of her having a reasonable excuse in any event.

22. In relation to the child's health, the mother relies upon the report of Dr P.  Dr P’s report is a report that was prepared after these periods of alleged contravention and would not have been available to the mother to form the basis of her reasonable excuse.  However, the factors referred to in Dr P’s report, and in particular the child's health and the child's attitude towards the father, were matters which were in existence at times referred to by Dr P in his report.  The question of the child's health is referred to in the mother's affidavit, particularly in relation to his health in April and May 2007.

23. I take into account the document annexed to the father's affidavit in relation to the child suffering nausea and having loose stools when in his care in February 2007 and also take into account the references in Dr P’s report to the ongoing attitude of the child towards his relationship with his father.

24. The mother offered, immediately after the order of 13 June 2007, to make arrangements for M to spend time with his father for approximately four hours each weekend.  I am satisfied that the action that the mother took in relation to what she described as "starting slowly" with the periods of time in relation to M was an action taken by the mother based upon her reasonable belief that allowing the child to spend that time with the father (and not more time with the father) was necessary to protect the health of M at the time and that the period concerned was no longer than was necessary to protect M’s health.  I refer to the references in Dr P’s report of the stress which M was facing in relation to the difficult relationship between his parents and what appears to have been a breakdown in the relationship between M and his father.

Summary

1. Therefore, in summary, my main decision is that the mother has not contravened the order of Judicial Registrar Forbes made on 13 June 2007, because of the particular form of the wording of paragraph 4 and because of the offers made to the father that he spend some time with M each weekend, the father's response being interpreted in a reasonable fashion by the mother as a rejection of that offer of time with M.

2. Further, however, if I am wrong in the interpretation of the requirements of the order, I am satisfied that the mother had reasonable excuse within both the meaning of section 70 NAE(2) and (5).

Costs

1. This is an application by the mother for the costs of these contravention proceedings. Section 117 of the Act provides that, subject to subsection (2) and section 70NFB(1) and sections 117AA, AB, AC and 118, each party to proceedings under this Act shall bear his or her own costs. The significant provisions of section 117(2) are:

   “If, in proceedings under this Act, the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just. ”

2. In relation to this application for costs, I have heard the submissions of counsel for the mother and the father in person. The mother is now asking for an order for her costs to be either agreed or taxed. (The specific provisions of section 70NFB(1) refer to a party having been found guilty of contravening an order. I have not done so).

3. In relation to the powers of the Court concerning dismissing proceedings as having been not proven or not established, section 70NCB provides that:

   “The Court may make an order that the person who brought the proceedings, being the applicant, pay some or all of the costs of another party, or other parties, to the proceedings and the Court must consider making an order under subsection (1) if the applicant has previously brought proceedings in relation to the primary order or another primary order alleging a contravention and, on the most recent occasion on which the applicant brought proceedings of that kind, the Court was not satisfied that the respondent had committed a contravention or was satisfied that the contravention had been committed but did not make an order.”

4. My understanding is that there are no circumstances in this case which fulfil the requirements of section 70NCB.

5. I therefore turn to consider the specific provisions of section 117, and in particular section 117(2A).  The Court is required to have regard to the financial circumstances of each of the parties; whether either of the parties are in receipt of assistance by way of legal aid and, if so, the terms of that assistance to the party; the conduct of the parties to the proceedings.  Other subsections, include whether any party to the proceedings has been wholly unsuccessful in the proceedings and whether either party to the proceedings has made an offer in writing to settle the proceedings and the terms of such offer, and such other matters as the Court considers relevant.

6. The mother is in receipt of a disability pension and is caring for the child M.  She receives $320 per year by way of child support from the father.  The father's occupation is a public servant.  He says he is currently on long‑term sick leave, which may end soon.

7. One of the other significant factors in this matter is that the father has been wholly unsuccessful in relation to the application. Considering the conduct of the parties and such other matters as the Court considers relevant, I take into account the letter from the mother's solicitors to the father dated 26 July 2007 which sets out the mother's interpretation of her obligations in relation to the order of Judicial Registrar Forbes and specifically says that the order does not specify a period of time.  The letter puts the father on notice that, in the event he continues with the contravention proceedings and is unsuccessful, the mother will be seeking costs against him.

8. In particular, the other factor to be taken into account is that, notwithstanding these proceedings were commenced by the father by way of contravention proceedings in July 2007, he has not at any time sought legal advice concerning these proceedings but  has chosen to proceed, incurring the costs of the mother, without obtaining any legal advice, whether it be by way of payment or community services or by way of private payment.

9. Those factors are significant. 

10. I am also asked to take into account the poor wording and the difficulties in interpreting the wording of Judicial Registrar Forbes' order.  I accept that has been the primary reason for me dismissing the application.  However the father was put on notice of those difficulties as early as 26 July 2007.  He has chosen, notwithstanding the obvious difficulties of interpretation of the order, to proceed with the application for contravention of the order.

11. There could be some sympathy for the father based on the poor wording of Judicial Registrar Forbes' order about M spending time with the father.  That would clearly have warranted the father seeking appropriate legal advice or the father applying to the Court for an urgent order to specify the particulars and time that he spend time with M.  It does not justify him continuing with an application seeking that the mother be dealt with for contravention of that poorly worded order.

12. Albeit that the mother is in receipt of legal aid, I accept that her legal aid will not be open‑ended and her ability to run further proceedings may well be affected by the costs incurred in successfully defending these proceedings.

13. The costs need to be on a party/party basis.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date:  24 June 2008