Timmins and Williamson

[2016] FCCA 1067

FEDERAL CIRCUIT COURT OF AUSTRALIA

TIMMINS & WILLIAMSON [2016] FCCA 1067

Catchwords:
FAMILY LAW – Parenting – contravention – no case to answer with respect to 3 counts – contravention not made out –costs.

Legislation:

Family Law Act 1975 (Cth), ss.70NAC, 70NAE, 117

Federal Circuit Court Rules 2001 (Cth)

Applicant: MR TIMMINS

Respondent: MS WILLIAMSON

File Number: DGC 2100 of 2013

Judgment of: Judge Harland

Hearing date: 2 May 2016

Date of Last Submission: 2 May 2016

Delivered at: Dandenong

Delivered on: 2 May 2016

REPRESENTATION

The Applicant: Appearing on his own behalf

Counsel for the Respondent: Ms Kildea

Solicitors for the Respondent: Victoria Legal Aid

ORDERS

1. The With respect to count 1 in the Contravention Application the court finds that the Respondent did not contravene order 9 of the orders made on 12 February 2015.

2. With respect to count 2-4 in the Contravention Application the court finds that the Respondent has no case to answer.

3. The Contravention Application filed by the father on 27 February 2016 is dismissed.

4. The father pay the mother’s costs fixed in the sum of $554 within 60 days.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2100 of 2013

MR TIMMINS

Applicant

And

MS WILLIAMSON

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. This is an application filed by the father for a contravention of orders made by consent on 12 February 2015.  On that occasion, the parties appeared for themselves and Mr Brewer of counsel appeared for the Independent Children’s Lawyer. 

3. The father’s contravention application sets out essentially four alleged breaches of the orders.  The mother’s counsel made technical complaints about the way the contravention has been set out in the contravention application. 

4. It is not in compliance with the rules; however, they were clearly particularised, just not in the right format. However, as indicated during the hearing, with respect to the alleged breaches of orders 10, 11 and 15, those were not capable of being made out on the material, and the mother had no case to answer. Those grounds, relate to attendances at doctor’s appointments, being informed about serious medical appointments and also about greeting the children.  The contravention count that proceeded was with respect to order 9, which reads:

   That the parties notify each other as soon as possible of any significant illness or injury suffered by either child whilst in their respective care and provide the other party with details of the treatment provided, including the name and contact details of the treating health professional.

5. The phrase “as soon as possible” is not set in concrete.  It necessarily has some flexibility about it, because it has to be in the context of the circumstances that have arisen.  So whilst this is not something that has been argued, the first issue is whether or not, in the circumstances, there has been a breach of that order in terms of what is “as soon as possible” in the circumstances.  I note that the mother, through her counsel, concedes that she breached the orders but says she has a reasonable excuse for doing so. I have had the benefit of hearing oral evidence from both parties. 

6. It is not in dispute that the parties’ youngest child, X born (omitted) 2011, injured himself whilst playing in the mother’s backyard on Sunday morning, 29 November 2015.  The mother says that X was chasing a dog and hit a tree and then hit a fence or some other structure and consequently had abrasions to both sides of his face and had split his gum.  She says she immediately took him to hospital at (omitted), being the hospital nearest to them, and says later in the day they were transferred to (hospital omitted). 

7. The mother says that they returned home on or about 4.30pm.  The mother does not dispute that the first time the father was notified about X’ accident was a text that she sent to him at 7.14am or thereabouts the next morning.  The evidence is that the father’s initial response was to reply shortly afterwards asking why she delayed in telling him.  The father was cross-examined about his actions on the Sunday and was somewhat defensive when giving his evidence. 

8. The father initially indicated that he could not remember what was in the texts, but it was clear that, as the cross-examination continued, he did remember the context of those texts.  The impression I had that he was reluctant to admit that there was a five-hour gap before he sent a text asking how X was doing.  He said that asking about the delay was him expressing concern also about X, but I do not accept that as an explanation.  It is pretty clear that sending a text asking why the delay is concerned about the notice.  It is not indicating a concern about what is happening with X. 

9. The mother gave evidence and was cross-examined.  The father asked her why, given that she said they spent some time waiting around at the hospital, she did not find time to text him whilst they were there.  The mother’s evidence is that she uses two phones:  one phone for communication with the father and one for other communication generally.  Her evidence is that she had asked her husband, Mr L, to communicate with the father on her behalf, as she found the communication stressful and found it caused her some anxiety. 

10. It seems agreed that the text messages the father has received has always been from the same phone number.  Sometimes it has been signed off by the mother’s husband, Mr L, but, as the father has indicated, he has no real way of knowing whether that is coming from the mother or him.  To some extent I do not think that is really the issue.  The mother says that she did not have that phone with her at hospital, and she also gave evidence that she did not think that she contacted L during that day either. 

11. She says that she was preoccupied with looking after X, reading him stories, keeping him occupied and telling him what was going on in circumstances where he had had a traumatic injury, in hospital being seen by various doctors, sent for X-rays and so on.  There is agreement that at the time of this incident that the mother’s household consisted of the two children, her husband and husband’s father, who has subsequently passed away. 

12. It was the mother’s evidence that her father-in-law had been living with them and that her husband was the father-in-law’s carer, and the father conceded that, although did not know to the extent to which Mr L’s father was disabled.  The mother says that by the time she got home, it was time to get dinner ready and she was still keeping an eye on X because of the head injury.  She said that she asked Mr L the next morning what the father had said in response to being informed about X’ head injury and says that her husband told her that he had not told him. 

13. She says her reply then was that they had better tell him and sent a text to the father straight away.  Essentially, the mother’s case is that it was a miscommunication:  that she thought that the father had been informed and as soon as she found out that that was not the case, she rectified that.  It certainly is agreed that previously, the mother has notified the father straight away.  When Y born (omitted) 2009 injured himself about a month before, the father agreed that that was the case and that she told him while she was on the way to hospital with him. 

14. The father says in his submissions that he is concerned that the mother will not facilitate and encourage a meaningful relationship between him and the children and referred to her husband, and the sense I got is he certainly feels like the mother may be seeking to replace him with her husband.  I think what is significant is that one looks at the orders – there is not a complaint there in relation to the time the father spends with the children.  The complaints deal with notification and communication. 

15. Whilst the father may feel insecure about the mother’s subsequent relationship, that falls a long way short of there being anything to satisfy me that she is not encouraging him to a have a meaningful relationship or somehow that is being detrimentally affected.  It has to be remembered that this contravention hearing is quite narrow in its focus with respect to the contravention that is going ahead, and it all turns on whether or not being informed approximately 24 hours later after an accident is a breach of order 9. 

16. Section 70NAC of the Family Law Act 1975 (Cth) defines what a contravention order means, and it says that:

    A person is taken … to have contravened an order … if and only if (a) where a person is bound by the order –

    and there is no doubt that the mother is bound by these orders, she being a party to them:

    (i) intentionally failed to comply with the order or (ii) made no reasonable attempt to comply with the order or (b) otherwise he or she has intentionally prevented compliance with the order by a person who is bound by, or aided and abetted a contravention -

    and subsection (b) is not relevant to these circumstances, and I will come back to this definition in a moment.

17. Section 70NAE defines what a reasonable excuse is for contravening an order, which is what the mother relies on. That section makes clear that the circumstances it sets out are not exclusive, and there may be other circumstances that would amount to a reasonable excuse for contravening an order. The circumstances include that a person contravened an order because, at the time of the contravention, they did not understand the obligations imposed by that order. It can also be a reasonable excuse if the person had reasonable grounds to believe that the actions constituting the contravention were necessary to protect the health or safety of a person, and that breach was no longer as was necessary.

18. In my view, carefully considering the wording of what amounts to a contravention of an order in 70NAC, the pertinent issue here, is (a)(i), whether or not the mother intentionally failed to comply with the order;  or made no reasonable attempt to comply with the order.  Given the evidence, I am not satisfied that she intentionally failed to comply with that order.  I am satisfied that she had thought that the father had been notified, and that as soon as she became aware that he had not, she rectified that. 

19. In my view, the contravention is not made out.  I have some concerns that the father’s focus in this has been on his rights, rather than in the children’s interests.  I do not mean that he is not bona fide in being concerned for the welfare of his children, but it seems to me that the father has been lacking in appreciating the difficult circumstances the mother was in to expect that she would just be waiting around at the hospital, and turn her mind to, in a stressful situation, “I had better contact the father.”  She was waiting with a young child who has gone through a lot of trauma and, no doubt, the mother was pretty upset about it as well.  It is not realistic to expect someone in that circumstance to immediately be thinking about making that contact. 

20. Coupled with the first response of his being, “Why haven’t you contacted me earlier?” I think speaks volumes about that the father being concerned about catching the mother out.  It is unfortunate that this matter has come to Court today on that basis.  It is clear that, on a previous occasion, the mother had complied with that order.  On this occasion I am satisfied that she has not breached the order, and I would hope that the focus is on mutual respectful communication for these children’s benefit, because, it speaks volumes to me that this is not about breach of spending time with orders.

21. It is also clear from the orders that there is no prohibition on the mother asking her husband to communicate on her behalf, and it may well be that that is a better way to proceed than not.  She is entitled to seek his assistance, as long as his assistance is at her direction, and is respectful towards the father.  There is no evidence before me to suggest that it has not been in that regard. 

22. The mother seeks her costs.  She is funded by Victoria Legal Aid, and counsel’s fees at Victoria Legal Aid rates for today’s proceedings of $554.00, which is the amount sought, which, as I indicated during the course of discussions, is probably about a third of the normal costs on scale of costs set out in the Federal Circuit Court Rules 2001 (Cth). It is usual as set out in section 117(1) of the Family Law Act (supra), that each party pay their own costs. There are circumstances that may justify departure from that, and those circumstances are set out in section 117(2A).

23. The relevant circumstances in this case are that the father has been wholly unsuccessful in his application.  On three grounds, the mother had no case to answer, and the fourth ground was not made out.  The father is in employment.  I have limited information about the parties financial circumstances, and there is some dispute between them about whether or not child support is up to date.  The father says that he is in a single income family and is supporting the children.  The mother is also supporting the children, and it is of some significance that Legal Aid has funded a contravention.  A response on a contravention, in my experience, that is not the norm.

24. It is an issue about public funds being expended in this way.  Contravention applications are the kinds of matters where it can often be seen that a costs order should flow and, in these circumstances, where the costs are much less than the scale, in my view, there are justifying circumstances for a costs order to be made so that the public purse is not out of pocket. 

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Harland.

Date: 10 May 2016