Tavener and Deichmann - [2014] FamCA 460

FAMILY COURT OF AUSTRALIA

TAVENER & DEICHMANN

[2014] FamCA 460

FAMILY LAW – CONTRAVENTION – father alleged mother breached orders by allowing children to come into contact with her former partner and by failing to advise him of her residential address – mother pleaded not guilty – consideration of the phrase “usual place of residence” – application dismissed.

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

Family Law Rules 2004 (Cth) r 21.08

Hafza v Director-General of Social Security (1985) 60 ALR 674

APPLICANT:

Mr Tavener

RESPONDENT:

Ms Deichmann

FILE NUMBER:

ADC

1623

2011

DATE DELIVERED:

27 June 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

16 May 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

R J Cole and Partners

COUNSEL FOR THE RESPONDENT:

Mr Anderson

SOLICITOR FOR THE RESPONDENT:

Jo-Anne N Milen & Associates

Orders

That the Contravention Application filed 7 March 2014 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tavener & Deichmann 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

FILE NUMBER: ADC 1623 of 2011

Mr Tavener

Applicant

And

Ms Deichmann

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This judgment concerns an Application for Contravention of orders filed on behalf of Mr Tavener (“the father”) on 7 March 2014.
The respondent is Ms Deichmann (“the mother”).
The Application for Contravention asserts five counts concerning the two children of the relationship namely M born in 2006 and B born in 2007.
It is alleged by the father that the mother has failed to comply with orders of this Court made 3 June 2013 and that she did so without reasonable cause.
The evidence and final submissions were heard on 16 May 2014. Judgment was reserved.
Both the father and the mother were represented by counsel. The father relied on his own affidavit filed 21 January 2014 and the affidavit of Mr Deichmann (“the maternal grandfather”) filed on 20 March 2014.
The respondent did not require the father or the maternal grandfather for cross examination.

BACKGROUND

The father was born in 1982. The mother was born in 1983. The parties commenced cohabitation in 2004 and following the birth of M in 2006 and B in 2007, the parties finally separated.
The proceedings were commenced by the mother filing an Application for Final Orders on 6 May 2011.
There have been numerous interim applications and it is reasonable to observe that the parental conflict between the parties is high. They are mistrustful of each other and their separate differences are not easily reconciled.
The parties did however reach an agreement embodied in final orders made by Justice Dawe on 3 June 2013 (“the Consent Orders”).
It is from those orders that the current Application for Contravention and the various alleged breaches of that order have their genesis.

ORDER OF 3 JUNE 2013

A significant focus of the Consent Orders centred upon the concern of the parties, but in particular the father, that under no circumstances should the children come into contact with the mother’s then husband Mr C other than by further order of the Court. It is clear from the tenor of the order and the detailed notations preceding the operative provisions, that the father considered and the mother accepted that Mr C posed a significant risk to the children.
To a significant degree the Contravention Application emanates from the concerns of the father that the mother is not truly protective of the children in terms of any ongoing involvement and relationship that she may have with Mr C.

APPLICATION FOR CONTRAVENTION

At the commencement of the proceedings, counsel for the father sought that counts 1, 2 and 5 of the said application be dismissed. Accordingly, it was only counts 3 and 4 that were proceeded with. The mother pleaded not guilty to those counts.

COUNT 3

This count allegedly occurred in or about December 2013. The count alleges a breach of paragraph 13 of the Consent Order made by Dawe J on 3 June 2013.
The statement of the alleged contravention in relation to count 3 is as follows:-
The mother moved from her current residence at [I Street, Suburb E] and failed to advise the father of her current residential address within five days of such change.
Paragraph 13 of the Consent Order provides:-
That the parties each advise the other and keep each other advised of current residential address/addresses, personals permanently occupying the home and telephone number and keep each other advised within 5 days of any change to same.

COUNT 4

This count allegedly occurred at 4.30pm on 6 October 2013 at the mother’s home at I Street, Suburb E. The count alleges a breach of paragraph 16 of the Consent Order.
The statement of the alleged contravention in relation to count 4 is as follows:-
The respondent mother allowed the children [M] and [B] to come into contact with her husband [Mr C].
Order 16 of the Consent Order provides:-
That the mother be restrained and an injunction is hereby granted restraining her from permitting the children to come into contact with her husband [Mr C] subject to the agreements/notations herein.

THE LAW

It is Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) that designates the legislative pathway concerning an application for contravention for orders made under the Act. The alleged contraventions as set out arise out of parenting orders made by consent on 3 June 2013 by the Honourable Justice Dawe.
Subdivisions C to F of Division 13A of Part VII provides the orders available to the Court that can be made in instances where:-
(a)The contravention has been alleged but not established (subdivision C);
(b)The contravention is established but reasonable excuse for the contravention is found (subdivision D);
(c)The contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (subdivision E); and
(d)The contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (subdivision F).
At the conclusion of the proceedings final submissions were made by each counsel in writing. The documents were silent as to whether if I found that one or both of the counts is proven and in circumstances where there is no reasonable excuse available to the mother, whether in respect of the said breach or breaches the Court should find that the contravention is “less serious” (subdivision E), or “more serious” (subdivision F).

SECTION 70NAC Meaning 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.

SECTION 70NAE Meaning 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 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 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 reasons 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, the obligations imposed by the order and the consequences that may now follow if he or she again contravenes the order.
(4)…
(5)…
(6)…
(7)…

SECTION 70NAF Standard 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)     Pargraph 70NECA (3) (a); or
(a) Paragraph 70NFB (2) (a) (d) or ( e); or
(b) Paragraph 70NF(3) (a);
If the Court is satisfied beyond reasonable doubt that the grounds for making the order exists.

LESS SERIOUS OR MORE SERIOUS CONTRAVENTIONS

Section 70NEA sets out the manner in which a Court should deal with a contravention in circumstances where it is considered “less serious”.
Section 70NEB sets out the powers of the Court as follows:-
(1)If this subdivision applies, the Court may do any or all of the following:-
(a)Make an order directing:-
(i)The person who committed the current contravention; or
(ii)That person and another specified person; to attend a post-separation parenting program;
(b)If the current contravention is a contravention of a parenting order in relation to a child – make a further parenting order that compensates the person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c)Adjourn the proceedings the allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, various or suspends the primary order or revive some or all of an earlier parenting order;
(d)Make an order requiring the person who committed the current contravention to enter into a Bond in accordance with Section 70NEC;
(da)If the person who committed the current contravention fails, without reasonable excuse, to enter into a Bond as required by a person under paragraph (d) – impose a fine not exceeding ten penalty units on that person;
(e)If:-
(i)The current contravention is a contravention of a parenting order in relation to a child; and
(ii)The current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii)The person referred to in subparagraph (ii) reasonably incurs expense as a result of the contravention; make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f)Make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and
(g)If the Court makes no other order in relation to the current contravention – order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.
Section 70NEC provides for the terms and conditions of a Bond if the Court requires a person to enter into a Bond under Section 70NEB (1) (d).
In respect of the more serious contravention, the provisions are to be found at Sections 70NFA. The orders that are available to be made by the Court in respect of a breach pursuant to Section 70NFB are to be found in subparagraph 2 and in those circumstances a Court is empowered to make a Community Service Order under Section 70NFC, an order requiring a person to enter into a Bond under Section 70NFE, to make a parenting order that compensates a person for time not spent with a child, a fine of not more than 60 penalty points or to impose a sentence of imprisonment on a person in accordance with Section 70NFG.
Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) outline the procedure for hearing of an application for contravention orders.

RULE 21.08 PROCEDURE FOR HEARING

At the hearing of an application mentioned in items 1A, 2, 3, 4 or 5 in Table 21.1, the Court must:-
(a)Inform the respondent of the allegations;
(b)Ask the respondent whether the respondent wishes to admit or deny the allegations;
(c)Hear any evidence supporting the allegations;
(d)Ask the respondent to state the response to the allegations;
(e)Hear any evidence of the respondent; and
(f)Determine the case.
As set out at the commencement of these reasons, the counts that were not dismissed upon the application of the applicant father (namely counts 3 and 4), were read to the respondent mother and it was her clear response that she denied each and every allegation in support of the two remaining counts.

EVIDENCE AND SUBMISSIONS - COUNT 3

The father relied upon his affidavit filed 21 January 2014 to support the allegation and in particular paragraph 35(f):-
Paragraph 13 of the orders requires each of us to advise the other and keep the other advised as to our address, other persons occupying the home and our telephone numbers. The mother has refused to advise me of details of her current address.
On her evidence, the mother admitted that neither she nor the children continued to reside at the Suburb E property for the period from 17 December 2013 to a date in mid-January 2014. The reason for her departure from the premises arises from a term of the parole conditions attached to the release of Mr C from prison namely, that he reside at the Suburb E property. The mother’s evidence was that she had no knowledge or input into the parole condition and the first that she was aware of the impending difficulty is when Mr C arrived at the premises unannounced and without warning.
It is the mother’s case that she was alive to the general tenor of the Consent Orders made but in particular paragraph 16 of the orders which provided for a strict injunction restraining her from permitting the children to come into contact with Mr C.
The mother gave evidence of her movements over the ensuing weeks but essentially, she and the children resided with a friend for two days, at a caravan park for seven days, in various motel accommodation and ultimately with a friend until the parole conditions could be changed to enable Mr C to reside elsewhere.
It is an important contention of the mother that she alleges she advised the father on “three or four occasions” by telephone that she would be staying somewhere else, but on a temporary basis.
It is not controversial that the mother continued to pay rent to the landlord and owner of the Suburb E property and notwithstanding the expiration of the formal lease in April 2013 considered that there was then a month to month tenancy agreement.
The issue therefore turns on the extent to which paragraph 13 of the Consent Orders as it refers to the “current residential address/addresses” is directed to all places in which the mother may reside irrespective of whether they be temporary or permanent.
The father acknowledges that he was advised that the mother was not living at the Suburb E premises but that she would not give him the address of where she was staying from time to time. The mother accepts that is the position. It is argued on behalf of the father that there are two elements to the concept of residence namely, the physical presence and the intention to treat “that place as home”. It is submitted on behalf of the mother that whilst the mother and the children may have resided elsewhere during the relevant period, at all material times Suburb E remained her “home”.
Both counsel relied upon the decision of Hafza v Director-General of Social Security (1985) 60 ALR 674. A significant issue in the case centred upon the proper interpretation of “usual place of residence” and “temporary” absence. The legislation the subject of those proceedings namely the Social Services Act 1947 (Cth) did not define those expressions.
Wilcox J at page 681 said:-
As a general concept residence includes two elements; physical presence in a particular place and the intention to treat that place as home; at least for the time being, not necessarily forever…
Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place, even involuntarily…a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place…together with an intention to return to that place and an attitude that that place remains “home”.
The genesis of the word “residential” is “reside”. The Macquarie dictionary provides the following definition:-
To dwell permanently or for a considerable time; have one’s abode for a time.
When paragraph 13 of the Consent Order is considered in its entirety, the other components lend weight to its ordinary meaning and import. The order includes a reference to “persons permanently occupying the home” and the reference to “telephone number” at any particular premises in which each of the parties, but in this case the mother, may reside from time to time.
There is an aspect of connection, permanency and a focus on a principal place of dwelling.
It could not be said that the periods of time that the mother and the children remained away from the Suburb E property had any element of a permanent intention to do so or the creation of a residence intended for an extended period. I accept that the sole basis for the mother leaving the Suburb E property was to enable Mr C to have his parole conditions changed so that he could live elsewhere.
It could not be said that the clear intention of paragraph 13 of the Consent Order would be to require the mother to advise the father if the mother was away from her home on holidays or some other temporary purpose.
Furthermore, compliance with the orders generally is not necessarily dependent in the short term upon the whereabouts of the mother and the children. The children spend time with the father during school term by their handover and return to and from school. If handover cannot occur at school then it is to occur at the Suburb E Police Station in default of the parties being able to agree an alternative arrangement.
The matter could have been avoided by the mother advising the father where she was from time to time given that she agrees she advised him that she and the children would not be residing at the Suburb E property in the short term.
It may be the case that on reflection if it was deemed important that the whereabouts of the parties be known by each of them at all times, then the deletion of the word “residential” may have achieved that result. That however is not the order the subject of the alleged breach. I do not consider that on the balance of probabilities count 3 has been established. Accordingly, I dismiss this count.

COUNT 4

This count relies on the general evidence of the father as set out in paragraph 26 of his affidavit, but the direct evidence of the maternal grandfather in paragraphs 7, 8, 9 and 11 of his affidavit.
As discussed, the maternal grandfather was not required for cross examination. Subsequently there was an application to allow further evidence to be given by the maternal grandfather. That application was opposed and was ultimately unsuccessful. The evidence of the maternal grandfather is that at 4.30pm on Sunday 6 October 2013, he and his wife visited the mother and the subject children. The visit was a surprise and the maternal grandparents attended upon the Suburb E premises unannounced.

It is his evidence that upon their arrival there were two other people present namely, Mr C and a female who was not known to the maternal grandfather.
It is alleged that Mr C acknowledged the maternal grandparents by saying hello but did not engage them in conversation.
The grandparents remained in the home for about half an hour, interacted with the children and then left.
What is not apparent from the evidence of the maternal grandfather is any observation that Mr C had any contact, communication or interaction with the children. It is the prohibition against Mr C coming into contact with the children that is the subject of paragraph 16 of the Consent Order. Vicinity or proximity are not mentioned.
The unknown female was Ms N. The mother’s evidence is that Mr C and Ms N arrived at her home unexpectedly. The father accepts the evidence of the mother that an argument ensued between the mother and Mr C in respect of his unannounced attendance. The mother asked Ms N to take the children into the bedroom. The implication is that she did not want the children to come into contact with Mr C.
Perhaps unwisely, the mother allowed Mr C to enter the home in order that he could collect some of his personal belongings. It was at that point that the maternal grandparents came to the front door. Her evidence and that of Ms N is that the children did not come into contact with the maternal grandparents but it is conceded that Mr C was probably at the premises for between 20 and 25 minutes.
At some point Mr C left the bedroom and the premises generally and waited in Ms N’s car for her to leave the Suburb E property.
There are inconsistencies in the evidence between the mother and Ms N. Principally the mother alleges that Mr C remained in the Suburb E property for between 5 and 10 minutes, whereas Ms N considers that he remained in the home for considerably longer.
The father argues that even if the evidence did not support a finding that Mr C came into physical contact with the children, it was likely that they could hear Mr C and the mother arguing and in any event they would have been aware of his physical presence.
The mother argues that much turns on the definition of “contact”. The distinction that the mother seeks to draw is that contact connotes “physical contact” rather than proximity or knowledge by the children of the unseen presence of Mr C.
It is clear from the construct of the consent orders and in particular the notations that Mr C presents an unacceptable risk of harm to the children. It is reasonable to opine that the risk presents itself upon any physical or face to face contact.
It was clearly unwise of the mother to allow Mr C to enter the home at a time when the children were present. The father is correct in his submission that when Mr C was at the front door of the mother’s home she had a clear choice.
The difficulty for the father is that thereafter it requires speculation by the Court as to what the children may have seen or heard. There is no evidence to support a finding that Mr C came into face to face contact with the children. It is speculation that the children may have heard an argument between the mother and Mr C or that at some point may have become aware of his presence.
Whilst I have some misgivings in respect of the mother’s evidence, I am not able to find on the balance of probabilities that Mr C came into “contact” with the children.
Accordingly, count 4 is dismissed.

CONCLUSION

Whilst the father has been unsuccessful in that he has not been able to substantiate that there has been a breach of the Consent Orders as alleged in counts 3 and 4, nonetheless the mother has traversed a fine line in respect of her behaviour. It would have been straightforward for the mother to advise the father with better detail of the circumstances of her departure from the Suburb E property and on a regular basis where she and the children were staying. She did not do so in circumstances where the concern of the father was properly heightened.
It would be surprising if the orders of 3 June 2013 did not contain a sufficient warning for the mother, and now the circumstances underpinning the Contravention Application should make it clear that the involvement of Mr C and the subject children is not a matter of mere technicality. Mr C by the acknowledgment of the mother, presents as an unacceptable risk to the children. The father is correct in highlighting that the mother had a choice as to whether to allow Mr C to enter the premises or not. Notwithstanding that her actions did not amount to a contravention of the order, they were nonetheless unwise and whilst the father has been unsuccessful in his Contravention Application, he could not be criticised for bringing the application in all of the circumstances as presented to the Court.

I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 June 2014.

Associate:

Date: 27 June 2014