TOME & TOME
[2019] FCCA 3003
•12 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOME & TOME | [2019] FCCA 3003 |
| Catchwords: FAMILY LAW – Children – contravention – costs. |
| Legislation: Family Law Act 1975 (Cth), ss.69ZX, 70NEA, 70NEB, 117(2)—(5) |
| Cases cited: Gaunt & Gaunt (1978) FLC 90-468 O’Brien & O’Brien (1993) FLC 92-369 Allesch v Maunz [2000] HCA 40 Stevenson & Hughes (1993) FLC 92-363 Green & Graham [2011] FamCAFC 248 |
| Applicant: | MR TOME |
| Respondent: | MS TOME |
| File Number: | PAC 842 of 2018 |
| Judgment of: | Judge Harman |
| Hearing date: | 12 April 2019 |
| Date of Last Submission: | 12 April 2019 |
| Delivered at: | Parramatta |
| Delivered on: | 12 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Gardner |
| Solicitors for the Applicant: | Lamrocks Solicitors |
| The Respondent appeared in Person |
ORDERS
I find that Ms Tome has, without reasonable excuse, failed to comply with the orders of this Court made 3 May 2018 on each of:
(a)18 July 2018;
(b)6 August 2018;
(c)22 August 2018;
(d)28 November 2018;
(e)4 February 2019;
(f)6 February 2019;
(g)17 February 2019;
(h)18 February 2019;
(i)20 February 2019;
(j)4 March 2019;
(k)6 March 2019;
(l)13 March 2019;
(m)17 March 2019;
(n)18 March 2019;
(o)20 March 2019.
Pursuant to section 70NEB:
(a)The mother shall be required, by close of business Monday, 15 April 2019, to attend upon a registrar of this Court for the purpose of entering into a bond, without surety or security, to be of good behaviour; and
(b)To comply, pending further order and until completion of the substantial hearing of these proceedings, with orders made by this Court today and on 3 May 2018.
The orders of 3 May 2018 are varied as follows:
(a)Supervision shall be provided by A Family Services rather than B Family Services;
(b)Each party shall be responsible for one half of all fees charged by A Family Services;
(c)The supervised contact service shall collect the children from the mother’s home at the commencement of each period and return them to that home at the end of each period.
The mother shall pay to the father as a contribution towards his legal costs (an order pursuant to both section 117 and section 70NEB(1)(f)) and his expenses (being payments made by the husband for supervised contact services which did not proceed), the sum of $7,000, such costs and expenses to be paid within 28 days of today’s date, and failing which:
(a)Interest shall then accrue upon that sum from the date 28 days hence until the date of eventual payment; and
(b)The father shall be entitled to commence recovery proceedings for that sum and interest and costs in a Court of competent jurisdiction.
Otherwise dismiss the Application for Contravention filed 29 March 2019 and the Application in a Case filed 3 April 2019.
Remove those applications from the list of cases waiting hearing.
Note the matter remains listed for trial, 11 to 13 September 2019.
Note the parties have filed their trial material, and a Part 15 report has been prepared, such that the matter is ready to proceed.
IT IS NOTED that publication of this judgment under the pseudonym Tome & Tome is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 842 of 2018
| MR TOME |
Applicant
And
| MS TOME |
Respondent
REASONS FOR JUDGMENT
Applications
These proceedings come before the Court with respect to an Application for Contravention. Allied thereto is an Application in a Case. Mr Tome who is the applicant in both the contravention and the substantive proceedings files the Application for Contravention.
The Application for Contravention was filed 29 March 2019. The Application was the subject of a consent to abridgment of time granted by a Registrar who deigned to list the matter to a mention only list. As, clearly, there is a significant issue to be addressed between these parties regarding compliance with an order of the Court, the matter has proceeded today.
The Application in a Case is filed by Ms Tome, the respondent in both the substantive proceedings and the contravention proceedings. The Application in a Case has been listed, remarkably, to the first date of trial of the substantive proceedings namely, 16 September. That is some six months following its date of filing. It is unclear why that is so. In any event, I am satisfied that I should also treat that application as before me today.
The applications are not dealt with concurrently but perhaps more correctly described as sequentially.
The Application in a Case seeks to suspend existing parenting orders, what will be referred to hereafter as “the primary order” being the order the subject of the contravention application. In the alternative Ms Tome seeks to vary the primary order so as to significantly change and reduce the practice of time presently occurring between the two children the subject of these proceedings and their father.
Children and Orders
The children are X, born … 2016, and Y, born … 2017. The elder child, X, will, in a few weeks hence, turn three. Y is approximately 18 months of age.
The primary order, that made 3 May 2018, is part of a suite of orders made that day. The orders that are relevant for the purpose of this determination are contained within exhibit A to the orders as issued. They are orders made by consent and pending further order. The primary order provides for both children to spend time with their father on a supervised basis. Time occurs four times per fortnight, namely:
a)10 am until 12 noon on Wednesday and Sunday in one week;
b)10 am till 12 noon on Wednesday and 9 am until 11 am Saturday in the second week.
All time is to be supervised by a private agency, B Family Contact Service.
One issue which might have been raised but which has not, (and I have no concern that it was not - it would be erroneous and disingenuous to do so), is that the supervision of time for all periods relevant for the contravention was undertaken not by B Family Contact Service but by another service, A Family Services.
I describe that it would be erroneous and disingenuous to raise any such technical objection in resisting an attempt to enforce the order as there is clear and documented agreement between the parties that, due to difficulties with the first service being available on weekends or portions thereof, that the parties agreed to engage with the second. Thus, the substitution by the parties, what might be described as an oral parenting plan, certainly an agreed variation documented in writing between the legal representatives for the parties, is sufficient, to my mind, to obviate against such a concern.
In total, there are 21 contraventions alleged. The first is the 18 July 2018, the last, 27 March 2019. It is common ground that there has been no time spent by the children or either of them with their father since the last alleged contravention, 27 March, 2019. For the sake of ensuring the integrity of this determination, I do not propose to address any continuing alleged contravention. I will confine my consideration to that which is alleged concluding 27 March, 2019.
The Allegations
It is convenient perhaps to deal with the allegations in four separate tranches or groups.
The first set of contraventions, at least as regards assertion of reasonable excuse, relates to the children, or one or other of the children, being suggested to be sick and sufficiently sick to be not able to attend a period of supervised time.
The second tranche relates to the mother’s unwellness or the wellness or unwellness of others.
The third tranche relates to a suggested understanding that time would not and could not occur on a specific date, namely, 18 July, 2018.
The last relates to 27 March, 2019, the mother asserting that she genuinely and reasonably believed that it was necessary for her to withhold the children and not comply with the primary order for the health, safety or protection of the children.
I have referred to the allegations falling within those four categories, as that is the manner in which they are described in paragraph 20 of the mother’s affidavit. The applicant’s cross-examination of the respondent has proceeded on that basis, and it is an advised and appropriate means of ensuring that the matter can be dealt with in a limited time frame.
Adjournment
It is necessary for the applicant to establish five elements before the respondent is called upon to produce a case in reply. The applicant must establish:
a)That there is an order;
b)That the mother understood that there was an order and had knowledge of it;
c)That the mother understood the order and her obligations under it;
d)That the mother failed to comply with the order in some fashion by failing to do something that was required of her or failing to desist in doing something which impeded compliance; and,
e)That on the basis of the father’s evidence as it is known, and subject to his cross-examination, that there is no reasonable basis to believe that a reasonable excuse could be established.
It would seem common ground that the first three elements are established. Indeed, they must be. The mother concedes, (paragraph 8 of her affidavit), that on 3 May, 2018 the primary order was made, she was present and legally represented. Indeed, the order was made by consent. The mother sets out in that paragraph her understanding of the order and what was required of her. On that basis, which I take it as an admission against interest, those three elements must, irresistibly, be established.
The mother also conceded during cross-examination, in response to a nuanced question fairly put to the mother, that, leaving aside any issue of excuse or reason, that the time periods for one or both of the children did not occur on each of the 21 occasions that were alleged. The mother agreed with that proposition.
The mother’s cross-examination of the father was brief. That is to be expected. However, I must touch upon that issue, lest there be any suggestion as to the integrity of due process afforded.
When the matter was first called, the mother appeared in person, having been called away from the duty solicitor upon whom she was attending to obtain advice and assistance.
The mother has, in these proceedings, been legally represented until quite recently. Indeed, the mother’s legal representatives would appear to remain on the record, having not filed a notice of ceasing to act that can be ascertained from the file. Accordingly, one would think that they might have appeared today. However, I am not critical of them. It is clear from that which the mother has put that she has discharged them. The mother will need to file a notice of address for service, however, as her former legal representatives are still recorded as her address for service, including upon the documents that she herself filed on Wednesday of this week, 10 April.
The matter was stood in the list, intended to be for an hour and a half or so, but, ultimately, until after lunch. That was to enable other business to be dealt with and to allow the mother to return to dealing with the duty solicitor.
After lunch, the mother indicated that she had applied for Legal Aid, her application had been refused, and that the application is now subject to an appeal. I can infer therefrom that the mother desired an adjournment.
I am conscious of the provisions of the Legal Aid Commission Act 1979 NSW. That Act infers if not imposes an obligation upon Courts to adjourn proceedings when a funding appeal is pending. However, that Act does not apply to or bind this Court. Section 79 of the Judiciary Act1903 is not enlivened to cause it to be so.
It was indicated to the mother that proceedings would be adjourned provided she was prepared to undertake that the order would be complied with during the adjournment. The mother declined such an undertaking and, thus, it was made clear that the matter would need to proceed as there is an issue at large, not only with respect to the children’s best interests but, as regards the contravention, with the integrity of the rule of law and compliance with this Court’s orders.
The Court has made orders. They are not complied with. There is no dispute that they are not complied with. Accordingly, the Court has an obligation to itself and other litigants to ensure that the Court’s orders are respected unless there is reasonable excuse.
Certainly in the case law referred to by counsel for the applicant and adopted by me, that which fell from the Full Court in Gaunt (1978) FLC 90-468 and O’Brien (1993) FLC 92-396 and the relevant portions thereof, which I incorporate herein, it is a serious matter for a parent to not comply with an order without the Court’s imprimatur, as it were, by authorising that noncompliance.
Per Gaunt:
“To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the Court's order or from the consequences of non-compliance would undermine the purpose and intentions of the Act…A party's subjective view of the rights and wrongs of a decision cannot be relied on as ``just cause or excuse'' or ``reasonable cause[1]''”
[1] Gaunt & Gaunt (1978) FLC 90-468 at 77,398.
Per O’Brien:
“…reasonable excuse in respect of concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether in the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out of the access order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person, including the child[2].”
[2] O’Brien & O’Brien (1993) FLC 92-369 at 80,045.
Certainly the Act envisages that there are circumstances where that might be so. Indeed, the very basis of reasonable excuse in division 13A permits that it be so, provided, however, that it contains what might be described as a “sunset clause”, that the noncompliance is for no longer than is reasonably necessary, thus imposing an obligation upon a party who seeks to be excused from their obligation to comply with an order to make application to the Court. That application is made, but after service of the contravention and with one working days’ notice.
I am also concerned that the children’s practice of relationship under the primary order is, at best, frugal. This is not a significant concern per se, save and except that a determination was made in affirming those orders, made by consent that the orders were in the children’s best interests. Thus, attention to the matter was required today.
These proceedings are listed for a final hearing in September this year. If the proceedings are adjourned, the likely adjourned date, for determination of the interim applications, would be after the final hearing. There are simply no dates before November. The pressure of work in this Registry is such that each and every date, with six exceptions for judgment writing and conference leave between now and the final hearing, are over-listed at a ratio of 300 per cent.
The interests of justice and the children’s best interests require, notwithstanding the mother’s desire to be legally represented, that the matter proceed and some determination be made as to whether the mother is to be excused from compliance with her obligation under the primary order or whether the order is to be enforced. That is, perhaps, all the more so in light of the reality that the mother’s application for Legal Aid funding, while it is not a matter which concerns the Court, it is between the mother and her legal advisors, has:
a)No date by which it might be determined;
b)No certainty that it will be positively determined; and,
c)On the father’s evidence, which I accept for present purposes is more probably correct than not, is unlikely that the application would or could be successful in light of the funding constraints of the Legal Aid Commission.
The father gives evidence, (paragraph 26 of his material), that the parties, having entered into final property adjustment orders on 17 January 2019 and have complied with their respective obligations thereunder (on 31 January), at which time the sum of $150,000 was paid to the wife or, on her account, (one half to her solicitors, one half less half of the cost of a valuation of the property the subject of those orders to the wife - $74,312.50).
The wife submits, at the close of evidence, not in support of the application for an adjournment, that she is unable to afford costs or make any contribution to the cost of supervision of the father’s time, as those moneys are already spent or earmarked for expenditure. They are matters for the mother.
In all of the above circumstances, I am satisfied, having regard to that which fell from the High Court in Allesch v Maunz [2000] HCA 40[3], that due process is afforded to the mother by proceeding with this application today. It is listed before the Court pursuant to an order of a registrar so as to be heard today. The mother has appeared. The mother has filed material, albeit in support of a connected application, but is thus able to present evidence to the Court.
[3] Allesch v Maunz [2000] HCA 40.
That must be set against the denial of due process to the father. The primary order commenced operation, in effect, in July or August of 2018. On any rough calculation, in that time and until the date when it is agreed all time ceased, there would have been something in the nature of 60 to 64 visits scheduled to have occurred. In fact, approximately 36 of those visits have occurred, roughly two-thirds, thus approximately one-third have been missed with one or both of the children.
Certainly, there is agreement that without the Court’s intervention, following 26 March, 2019 and the mother’s indication through the supervised service that no time will henceforth be made available, there will be no time. Thus, I must balance the mother’s desire to be legally represented in these proceedings and in dealing with these issues against the reality that, if adjourned for that purpose, the father’s application would be rendered nugatory and could not be heard before the final hearing. The children’s practice of relationship, as previously determined to be in their best interests, would be frustrated and denied and the father would be denied due process. On that basis, the hearing proceeds.
Father’s Evidence
The father’s evidence is contained within his affidavit, sworn or affirmed 27 March 2019. I also have the benefit of an erudite case outline document which summarises the allegations and their bases, although not leading fresh evidence – appropriately so.
I have had regard to the mother’s affidavit and Application in a Case, filed 10 April 2019, as well as the contravention application itself, filed 29 March 2019.
I have had regard to the primary order and its clear and specific terms.
I have also had the benefit of the Part 15 report that has been prepared in the substantive proceedings and which I have read with the knowledge of the parties and for the purpose of this determination. There are two specific aspects of that report which bear greatly upon the evidence in this case, although the entire report is of some assistance and particularly so in the substantive proceedings.
There are also a number of exhibits:
a)Exhibit A1, the totality of reports from A Family Services regarding the father’s supervised visits;
b)Exhibit A2, one record from C Childcare, where the child X attends and particularly attended on one day following a period when time did not occur and when it is suggested that the child was so sick that he was bedridden. That tender occurs in circumstances whereby the child would appear to have miraculously recovered by the next day so as to spend the entire day at day care.
c)I also have exhibit R1, a bundle of medical certificates relating to the children or either of them and to the mother. The certificates relating to the mother are admitted over objection by counsel for the father. That objection is entirely valid. The certificates were not served until the point at which they were sought to be tendered. The duty of disclosure applies in all proceedings before the Court, not merely property proceedings. Any document that is to be tendered should be disclosed at an early stage. If they had been provided at the time they were issued, it may have been of some assistance to these parties in seeking to negotiate or limit the ambit of their dispute.
The certificates in relation to the mother, five in total, do not, however, prejudice the father as I do not propose to give them any weight or any significant weight. The certificates, ranging from 17 February, a time when the mother had moved from being in close proximity to the father to live with her parents in Suburb E, described as being up to an hour’s drive away, provide no detail at all. Two of the certificates suggest that the mother suffers “a medical condition” and is “unfit for work”. Three certificates simply describe “medical condition”.
The mother was cross-examined with respect to condition and provided no further evidence. The reports of themselves simply do not assist. They do not suggest any incapacity in providing the children in one of a variety of ways, which I will turn to in dealing with each of the categories of alleged contravention.
As would be apparent from the above, I am satisfied and must be so on the evidence that there was a need for the mother to present a case in reply. The father established irresistibly that there was an order, that the mother knew about it and that the mother understood it. These can also be inferred from partial compliance on the occasions when visits did occur with one or both children.
I am satisfied, on the mother’s concession that each of the 21 periods alleged did not, in fact, occur with one or both of the children. Finally, on acceptance of the father’s evidence on its face as more probably correct than not, including the father having disclosed the medical certificates relating to the children, those which had been provided to him, I am, by and large, not dissuaded from the reality that a case in reply must be led. The medical certificates tendered by the mother, after the close of the father’s case, may cause some change in circumstances regarding such assessments and findings. I will turn to those in due course.
I propose to address the various tranches of reasonable excuse by reference to stated questions.
Do the medical certificates for the children suggest that the children were irresistibly incapable of being presented?
No. The medical certificates relating to the child, by and large, suggest that the children experienced chest infections or upper respiratory tract infections. There are, from the documents tendered by the mother, a number of occasions when it was suggested that it was advisable for the children to stay home and have rest. That might, perhaps, best be interpreted by reference to page 26 of Dr D’s reports. Therein, Dr D opines with respect to the children’s time with the father:
This will require very regular time together, several times a week while they are pre-schoolers, for increasing lengths of times as they mature and are able to cope with separations from their mother as they will need to learn their father is capable of caring for them when they are unwell. A common illness should not prevent them spending time with him. X’s responses to his father during this assessment and as documented in the supervisor’s report suggest he had made a positive attachment to him. Mr Tome’s observed engagement with both the children indicate that he, while not unduly stressed, is able to respond appropriately to them.
It is to be observed that the interviews for the Part 15 report occurred in November 2018. At that time, Mr Tome had raised complaint that one or both of the children were not being presented due to illness, and with the certificates offered stating the children had colds, coughs or upper respiratory tract infections. Dr D commented specifically on those matters.
It should also be observed that until 31 January 2019, these parties lived across the road from each other. It is not as though either of the children, if sick, were required to traverse substantial distances. All they had to do was cross the road with the supervisor. It is also germane to observe that on at least one occasion, and whilst the mother was still living at Suburb F, that the mother had attended upon a doctor not in Suburb F but Suburb E and obtained medical certificates for the children.
The mother’s evidence, during her cross-examination, was augmented or extended to suggest that the children’s presentation to doctors were precipitated by them not just having a cold or cough or runny nose but by being so unwell that, at times, they could not be gotten out of bed and had been up all night vomiting and with diarrhoea. If that is so, and whilst the mother offers the explanation that it would be later in the day when it would be so, one wonders why the child X is presented on 3 September to a doctor at Suburb E, being, of course, proximate to where the mother’s parents live.
In relation to that occasion specifically, the father gives evidence that he had spent time with the children the day before, and that while X had a runny nose and appeared somewhat congested and uncomfortable, such that he needed to drink more water than usual, that he appeared perfectly comfortable with his father. He appeared somewhat unwell and lethargic but interacted with his father and the visit proceeded and was enjoyed.
X would appear to have remained ill for a significant period, as he also missed the visit two days after the 3rd, on the 5th. On that occasion, the child was presented to a medical centre at Suburb G, some distance from Suburb F, an hour or so away, and yet the child could not cross the road to be in the care of the father. It is in that context Dr D has offered the opinion that she has.
In relation to four of the occasions, it is clear that the mother may have received advice from the doctor to whom she presented the child, being doctors at Suburb E and Suburb G, that it was advisable for the child to stay home for treatment, whatever treatment may have been recommended, as it is not clear from the report, and on 28 November, when it was opined that the child Y “was febrile and unfit to attend with her supervised (sic) due to bronchitis”.
Of course, the doctor’s opinion as expressed in the certificate is not authoritative or conclusive. I do not suggest that the doctor has manufactured an opinion or is other than competent in the discharge of their duties. However, the doctor’s opinion, as inelegantly expressed in each of those certificates, does not necessarily mean that the child could not have crossed the road to spend two hours of supervised time with the father and paternal grandmother or that the child was more ill-affected by such an attendance than travelling the hour or so to Suburb E or Suburb G to see the doctor and obtain the certificate.
Ultimately, with respect to each of the occasions when it is suggested that one or more of the children were sick and unable to attend, I am not satisfied that there is a reasonable excuse. That flows for a number of reasons.
Firstly, the certificates that are offered simply do not assist in establishing that proposition. They suggest that the child has a somewhat transitory illness of which, at least on some occasions, such as that in September that I have referred to above, the father was fully aware of the condition, was entrusted with the child and able to care for the child. That does not mean the condition could not have deteriorated overnight, but it is somewhat extraordinary when one then compares it to evidence such as the child’s attendance at day care on the day following illness. I simply do not accept that it is so.
Secondly, it arises from that which is discussed by Fogarty and Nygh JJ in Stevenson & Hughes[4], the obligations imposed upon a parent to support, encourage and facilitate time pursuant to an order, not only to comply with the terms of the order, but its spirit. The mother indicates in her evidence that she absolutely desires that the children have a relationship with their father and spend time with him. She agrees with the proposition put to her that it is important that they do so, that it would take something significant before the children would not be presented to spend time with their father.
[4] Stevenson & Hughes (1993) FLC 92-363.
That must be set against what was reported to Dr D, as counsel submits, on page 9 of her report. When inquiry is made of the mother as to the father’s parenting strengths, the mother “responded that he had ‘none’”. She complained that he struggled to love the children, has no feelings for them or support for them. He cannot stand to hear them cry. He treats them like items belonging to his dad. They have no value. He does not want to do anything for them. She complains that he has never bought anything for them, would not let her buy things for them. A catalogue of complaints with respect to the father follows, as well as the paternal grandfather.
On the mother’s evidence and submissions, I am concerned and find that there is an intermingling, or at least flavour, of the mother’s presentation of children to the doctor to obtain certificates to suggest they are too unwell to attend, even though the illnesses that they suffer have not always precluded them attending and are not of themselves described as such in the vast majority of the certificates, with her underlying desire that there be no time. That arises from the mother’s suggested fears and concerns with respect to the children.
It is convenient to turn to that tranche of allegations, although, in reality, it is that of 27 March. The father leads evidence, indeed, he annexes the email from the contact service, regarding the mother’s indication to the contact service. I am conscious that these proceedings under Part VIII Family Law Act 1975 are governed by section 69ZX[5], and thus, whilst there might be some objection to the form of evidence if the rules were applied strictly, the evidence is admitted.
[5] Family Law Act 1975 (Cth) s 69ZX.
The email that is sent to the father by the supervised contact service on 26 March, (annexure H to the father’s affidavit), reads:
As per our telephone conversation, I am confirming I received a call from Ms Tome at 4.45 today advising she is cancelling all contact supervision starting tomorrow, 27 March. The reason given was “her children are at risk.” I asked her to contact you via appropriate legal channels to advise. I advised I would call you as a courtesy, due to the lateness of the cancellation.
The mother sets out in her material the bases upon which she suggests that there is a risk to the children of such unacceptable nature as to obviate against even supervised time. Those reasons are myriad. Firstly, the mother complains that the father permits the younger child to play in sand and that she develops rashes as a consequence of being allergic to sand. There is no evidence that it is so, but even accepting that it is, the first complaint in that regard was September 2018. The mother, of course, complains that the father has continued, over her protestations, to allow the child to play with sand and, thus, it has come to the point where she does not feel that the father will heed her request.
The mother complains (paragraph 10 of her affidavit) that she has, on one occasion, seen the paternal grandfather outside of the home where the children are spending time. The mother confirms in her evidence and submission that the father had been called on that occasion to bring food to the home. The home at which the father lives is the home of his parents in the same way that the mother now lives with her parents in Suburb E.
The mother complains that she is concerned that the father may have been present at the home on that or other occasions. As she describes, she does not know “who is hiding in what rooms”. There is no basis to believe that anybody is hiding in any room. Indeed, on 17 September, the grandfather could not have been hiding within the home. He is clearly described as arriving at the home towards the end of the visit, having been called to bring food, as is corroborated by the contact centre note.
The mother describes that she is concerned that the paternal grandfather has “molested” X and his own children. That is a matter that the mother has raised since these proceedings commenced and is vocal in presenting both to the Court and the report writer. They are matters that can await final trial. There is no suggestion the supervisor has ever found the grandfather to be present. The Court might be asked, at least inferentially, to accept that the supervisors are somewhat negligent or untruthful. I do not draw that inference.
The mother complains that the supervisors have not heeded her request to ensure that the younger child does not play with sand, thus, one might infer, she has lost some confidence in the supervising service. At paragraph 12, the mother complains that when X returned from contact on 2 January, that he said to her, “Mum, I played with a blowtorch at Daddy’s”. That is repeated as a complaint in paragraph 15 in relation to the visit on 30 January, as well as a complaint on 13 March (paragraph 16).
If one turns to the contact centre notes regarding these suggested complaints, the child being permitted to play with power tools, including blowtorches, truth is spoken to the allegation. In relation to the visit of 30 January, in the penultimate paragraph, (page 2, paragraph 24 of the mother’s affidavit), the following is observed by the supervisor:
Mr Tome sat next to X and held the drill to ensure X’s safety while pressing the button. X smiled as he squeezed each nail, [presumably screw]s, into the wood, and Mr Tome said, “Good boy.” X tried to pick up the drill when Mr Tome was not holding it and Mr Tome told him to put it down, that he did not want him to hurt himself. He complied. Mr Tome used the blowtorch to make a pattern in the wood, [what might be referred to as pyrography], and X stood beside him. Mr Tome allowed X to press the button and ensured his safety by ensuring it was far enough away from X.
It is the child’s statement and the mother’s reading of that report that is suggested to support the submission the child is permitted to play with a blowtorch.
There is then complaint at the end of the visit, when the child is returned home to the mother, crossing the road as it were, and the mother runs her hands through the child’s hair, which had “brown bits in it as if it had been burnt”. It is unclear whether that description is from the mother or from the supervisor. The supervisor is recorded as saying that he had carried a piece of wood, and the supervisor was unsure what else it could be. That might suggest that the supervisor was reporting the mother having concern about the child’s hair being burnt, but nothing turns upon it. The mother is convinced that it was so.
On 13 March 2019, the mother suggests that the child returns with a burn above his lip where his father had burnt him with the blowtorch. The notes for that date include the following.
X said he wanted to go into the garage, and Mr Tome took him there. He decided he wanted to know about the yellow gas cylinder. Mr Tome took him into the backyard and allowed him to select a piece of wood from the woodpile. After sitting down, he instructed X to sit between his legs and behind the blowtorch before igniting it and then allowing X to put his hands on the cylinder while they made the wood go black but did not ignite it.
Although X felt as if he was doing something, Mr Tome was in full control of the torch and the child at all times, and I judged that there was no risk to X during the activity. After they had turned a couple of pieces of wood black, Mr Tome told X that it was time to go home and they went out to the front of the house, where Mr Tome helped X put on his backpack, etcetera.
There is no suggestion that the child has been burnt by the blowtorch. No person, in fact, other than the mother, has ever suggested that they have observed such burns upon the child.
The mother raises complaint that the supervisors are generally less than vigilant and not doing their job properly. It is unclear how that allegation arises in light of the detailed and comprehensive reports that are tendered.
The mother’s opinion would appear to be based on the reality that there are two adults present, the father and his mother, and two children, and thus that one supervisor could not be vigilant at all times. There is nothing, however, to suggest that anything has ever occurred which is not noted by the supervisors, or that the children have ever been other than well-protected and well-cared for.
The mother’s complaint regarding the child using a drill and blowtorch might be explicable. The mother clearly is concerned that children should not “play” with such items as though they are “toys”. What is depicted in the notes is the father instructing the child or engaging in an activity with the child wherein the father is entirely responsible for the tool. It is not for the Court to hark back to the 18th century and the types of circumstances which developed the law of torts. The inherent risk and danger of the equipment that the child is engaged with. The child is supervised by a parent.
Reasonable minds may differ as to the age at which a child might be given instruction in the use of such apparatus, but it is a matter for parents, ultimately. The mother clearly feels that a child the age of X, coming up to three, should not be permitted to engage in such activities. The father clearly believes, subject to his supervision and tutelage, that it is fine.
What is striking from the contact centre notes is the detailed description that the supervisor gives at the interaction on each occasion, including the child being told to put down the drill when he has attempted to pick it up and being compliant, the father not permitting the child to handle any of the apparatus themselves but only with his control of it, in a way that might well be described as child-focused, such that the supervisor describes that the child felt that he was in charge of the tool but clearly he was not.
I am not satisfied that those matters, individually or collectively, as are complained of by the mother as the basis for her indicating prospectively that she would not comply and subsequently not complying through the provision of the children, could be described as an unacceptable risk to the children. That is also to be taken within the context of the 35 or so visits that have occurred and the detailed reports, all of which show the children interacting warmly with both father and grandmother.
What is described within those reports is that the children engage well, as Dr D has observed, and that X, the elder child, is beginning to develop an important attachment with the father. Perhaps it is that which has caused the concern, because certainly the events which are otherwise complained of do not satisfy the Court that there is an unacceptable risk that would constitute a reasonable excuse pursuant to section 70NEA[6].
[6] Family Law Act 1975 (Cth) s 70NEA.
Thirdly, there are the tranche of allegations when it is suggested that the mother was too unwell to travel or that others were unwell. On one occasion, it is the mother’s sister who is unwell. That could not possibly relate to the mother’s inability to transport the children.
The mother tenders medical certificates but, as indicated, they simply indicate “medical condition”. There is nothing to suggest what was wrong. The mother augments that evidence during cross-examination and submissions, indicating that the very prospect of driving back to the area where she used to reside, indeed, directly opposite the father and his parents, causes her distress, anxiety and causes her to manifest symptoms of physical illness. None of that, of course, is within the sworn evidence, nor is it suggested by the mother’s own evidence, (paragraph 20(b)), as the basis upon which the children were not provided. The mother simply says that she was sick.
That issue only arose for the first time after the mother had moved. Until 31 January 2019, there would not appear to be any report of time not proceeding on the basis of the mother being ill. The children were able to be transported across the road, even if the mother was ill. Since moving, there is then the distance of an hour or so. The mother complains that the father has refused to pay the supervised service to collect the children from her home and return them. The father conceded in cross-examination that at one point, he did.
What is apparent is that communication occurred between the parties regarding that issue, and the mother proposed that the father would need to cause the children’s collection and return and pay for it. The father had responded, through his attorneys, to suggest that the mother should pay for the travel portion of the supervisor’s time if they were collecting and returning, extending the time that the supervisor would be required from two hours to four hours. That is contained within annexure F to the mother’s affidavit, a letter from the father’s attorneys, 15 February 2019. That letter also sets out the dates of visits that are suggested to have been missed and proposes a regime of make-up time, if it might be so described.
As is pointed out, the mother lives with her family. The father’s evidence is that he has been with various members of the mother’s family at different times when they have driven motor vehicles and that they had motor vehicles. When it was put to the mother that there were others who could assist her in transporting the children if she could not, she denies that it is so. The obligation to transport the children is, of course, a personal obligation. One solution to that problem would be the children being collected and returned by the supervising service, albeit it would add to the cost.
The only issue between the parties in that regard would appear to have been a dispute as to who pays the extra costs. On the basis of the medical certificates the mother tenders, I could not accept that she was so unwell that she could not or could not make some arrangement to cause the children to be transported. Again, that must be taken in light of the evidence in Dr D’s report, the mother’s own submissions and the general flavour of the mother’s evidence, the various aspects referred to above connecting so as to point towards an inference that the level of support and the level of importance placed upon the children’s relationship with the father is, at best, modest.
The final suggested basis for non-compliance is a suggestion (paragraph 20(c)) that the mother believed that weekend visits would no longer occur. That is on the basis of the visit on 22 July 2018 not occurring. The father’s evidence with respect to that weekend is consistent with the mother’s in many respects. The father suggests he, then living across the road from the mother, saw the supervisor arrive and knock on the mother’s door, but nobody answered. He then received a message that no one was there and that the mother had not answered her phone.
The mother suggests that she was of the view that the visit was not proceeding and, accordingly, had made other plans and had, indeed, gone out. In support of that, the mother points to annexure M of the mother’s affidavit, a letter from the father’s solicitors to the mother’s dated 6 July 2018. It reads:
Our client instructs the B families have now informed him that they will be unavailable to supervise his time with the children on weekends in accordance with the interim orders because they are overbooked.
The father indicates that notwithstanding that the agency had made that indication, that they then found the time and were able to provide supervised time on that weekend. The mother denies that she had any notice that it was so. The father refers to having received email communication from the agency two days earlier, confirming that the visit would, in fact, proceed. It is referred to in his material.
On the basis that the father received such notification, it is difficult to understand why the mother would not have received the same notification when both parties are and were simultaneously contacted by whichever supervising service was operating at any given time. There is some real doubt in relation to that arrangement.
At the end of all evidence, I have some real concern in accepting that a reasonable excuse is made out on any occasion. However, as the father need only demonstrate one contravention, I am satisfied that the appropriate course would be to give the mother, as it were, the benefit of the doubt in relation to certain of the occasions.
I have real difficulty accepting the mother’s evidence that the children’s level of illness was such that they were bedridden and incapable of attending visits with their father. The mother suggested if they were presented to doctors, particularly distant from her home, it is much later in the day when their condition has recovered somewhat. One wonders why they need to be presented to the doctor when their condition has recovered, but in any event, presented they were. It is submitted on behalf of the father that the mother’s actions and attitude is simply spite dressed up as protectiveness.
Whether I need go that far in relation to all issues, I do have some concern that the children are presented to doctors for the purpose of obtaining certificates rather than obtaining necessary treatment. However, four of the occasions indicate advice to the mother, through the frugal and less than satisfactory medical certificates, that the child should, perhaps, be retained at home, or on one occasion, was unfit to attend supervision.
If the mother was given the benefit of the doubt for those four occasions, they being 26 November, 28 November, 4 February and again on 4 February with respect to the other child, three occasions in total, those three contraventions might be open to acceptance that the mother genuinely, whether reasonably or not, believed that it was necessary to not comply with the order. It is to some extent a concession to the mother, although I make clear I am satisfied a finding could well be made that those circumstances were also disingenuous.
There is also the issue in relation to the visit of 22 July when the mother suggests she had been led to believe time would not occur and had received no further notice. Again, whilst I have some difficulty accepting that is so, as described above, I would be prepared to give the mother the benefit of the doubt. If they were the only contraventions, such benefit would not follow.
However, for the balance of contraventions, I am not satisfied that a reasonable excuse is made out. Section 70NAE[7] requires something far more abundant than the suggestion that the child has a transitory illness in the nature of cold or chest infection, and particularly for periods when living across the road, that being the basis upon which they simply could not attend.
[7] Family Law Act 1975 (Cth) s 70NEA.
That evidence is all the more problematic when the mother’s submissions make clear that in reality, she was, as it were, looking for an excuse, as she held real concerns, which would appear to be based in her understanding and perception of the father and her attitudes towards him and his family more so than the children’s experience when it is conceded that on the majority of occasions, the reports make clear that they are quite happy. With those reservations, I am satisfied that each of the remaining contraventions are made out.
That being so, I am satisfied that the contraventions on 22 November 2018, 3 September 2018, 5 September 2018, 3 October 2018 and 26 November 2018 need not proceed. I will not make any finding that the ground is made out. However, the remainder are made out, and thus 16 of 21 allegations confirmed.
That then leaves the issue of remedy. The Court’s powers in that regard are clear and specific within the section. I must, by reference to section 70NEB[8], consider whether I require the parties to attend post-separation parenting programs. Such orders have already been made, and whilst there is not specific evidence as to compliance, I would expect, by this time, that it has occurred.
[8] Family Law Act 1975 (Cth), s.70NEB.
Orders can be made which compensate a person for time. That is difficult in the context where the present order is supervision and occurring four days per fortnight and with significant cost to parties who do not have significant income, although having released available capital.
The proceedings can be adjourned to enable an application to be made to suspend or vary the order. That application is already before me, and as a consequence of the findings made above in the contravention, must be dismissed.
I can make an order which requires the mother to enter into a bond. I propose to do so. A bond without surety or security to be of good behaviour and to comply with the primary order, as varied by further orders to be made by me today, pending the final hearing of these proceedings.
I am not satisfied that a fine need be considered.
I can consider costs and propose to do so. Those costs include and expand to also incorporate expenses. In the applicant’s case, it is made clear that as a consequence of the visits which have not occurred and with no notice, that he has incurred significant expense. Those expenses are set out in his material, particularly at paragraph 52 - $2,442 to date. Costs are also sought with respect to the proceedings. I will deal with that as a separate issue before dealing with the expenses and variation of the order.
To be clear and from the outset, I propose to vary the order as the Act permits for the purpose of seeking to remedy contravention. I am not satisfied that the power can or should be used broadly to simply reopen and revisit the orders, although that is not to dismiss the erudite submissions put on the father’s behalf in that regard.
I am satisfied, for a number of reasons, that it is preferable to leave the order substantially as it is until the hearing. That is so as:
a)The hearing is now only some few months away and both parties have prepared and are ready to proceed;
b)There are judiciable issues to be tried in these proceedings which go beyond the allegations of risk raised for the purpose of reasonable excuse in this application; and,
c)There is the potential benefit of supervision, as discussed by Coleman J in Green & Graham [2011] FamCAFC 248[9], that notes will be provided which will give the Court some real assistance in assessing the children’s relationship and developing practice of relationship with the father, as well as protecting from further allegation.
[9] Green & Graham [2011] FamCAFC 248.
I am conscious that the supervision arrangement is already well and truly in place, and thus there will be no delay, as would occur, for example, if orders were made as sought by the mother to now move the arrangement to the supervised contact service. That would reduce by 75 per cent the amount of time that could occur, but more importantly, it could not occur before final hearing. The delay is such that the parties would not be offered a place until the matter was well and truly concluded. Thus, the father would be left with no time between now and hearing in circumstances where I have not been satisfied there is a risk that obviates against operation of the primary order.
In dealing with the issue of costs, I must have regard to section 117 of the Act[10]. The Act makes clear that in the case of a more serious contravention, and I am satisfied that whilst this contravention is serious, that it does not meet the criteria for such description within Part XIIIA, I must commence from the starting point that each party will bear his or her own costs, what is often referred to as “the general rule”. Those reasons are provided by subsection (2)[11], satisfaction of the dual test of both a justifying circumstance and justice and equity.
[10] Family Law Act 1975 (Cth) s 117.
[11] Ibid sub-s 2.
Subsection (2A)[12] sets out a prescriptive but non-exhaustive list of considerations in the exercise of that discretion. Subsection (3), (4), (4)(a) and (5)[13] are not relevant, dealing, as they do, with applications by or involving independent children's lawyers or child welfare agencies.
[12] Ibid (2A).
[13] Ibid Sub-ss (3)—(5).
In dealing with each of the factors in subsection (2A)[14], I observe the following.
[14] Ibid sub-s (2A).
Financial circumstances of the parties
Both parties have previously been involved in property adjustment proceedings. Those proceedings are now concluded, to their great credit. As a consequence of the orders made, Mr Tome has acquired a home previously owned by the parties encumbered by a mortgage. Mr Tome sets out in his affidavit, (paragraph 50), his present expenses. They are substantial. He concedes that he has some assistance from his parents who help him to pay the fees of supervision and have done so even when that time has not occurred.
The father also gives evidence that he was expending significant time and funds effecting repairs to the property that he is now the sole registered proprietor of as a consequence of what he alleges is deliberate and malicious damage during the wife’s period of occupation or at the time of vacation. I need not pursue those issues, simply to observe that the father’s evidence is that he pays sums of money.
The mother’s financial circumstances are not as well-known save and except that the mother did receive a sum slightly in excess of $74,000 as a consequence of property settlement at the end of January this year, some two and a half months ago.
Whilst the mother asserts significant portions of those funds are expended or earmarked for expenditure, they are funds which I am satisfied she can have access to and recourse to both for the purpose of costs and for the varied parenting order that I propose to make to remedy the contravention. Thus, I am satisfied that each party has the financial circumstances to meet an order if made. That speaks to justice rather than justification.
Whether a party is in receipt of a grant of Legal Aid
Neither is.
The conduct of the parties with respect to the proceedings.
I am concerned that there is a degree of disingenuity in aspects of the mother’s presentation of her case. Whilst certain specific basis for non-compliance are advanced, it is quite clear from the mother’s submissions that they are all directly engaged with her underlying fears regarding the children’s safety which have subsisted since prior to the making of the order. The children did not spend time with their father from the time the order was made until arrangements could be made for the supervised service. There was then a brief disruption before they resumed.
From the time that the arrangements resumed, they proceeded for a short time before difficulties began. Certainly, once the mother had received property settlement funds and moved away, the problems have been abundant. I am not satisfied that any other aspect of that provision could be relevant. Both parties have addressed their business before the Court promptly and efficiently.
Whether the proceedings are necessitated by the failure of a party to comply with an order.
Clearly, that is the gravamen of the decision, although not the sole basis.
The mother has been found to have failed to comply with the primary order, without reasonable excuse, on 16 of 21 occasions. That might be suggested to be some benefit in resistance of an order for costs or at least some discount on the basis that five counts have not been made out. I make clear, as would be apparent from the reasons above, findings could well be made and, perhaps might well be argued by counsel for the father as required to be made, in relation to the other five. What has been extended, I have referred to as the benefit of the doubt, perhaps more correctly described as generosity.
Establishing one count is sufficient. 21 are available to be found as made out. Thus, I am satisfied that that is a significant justifying circumstance for an order for costs.
Where a party has been wholly unsuccessful
The mother has. She has not obtained the relief she sought in her application in a case. She has not successfully defended or resisted the father’s case.
Whether a party has made an offer in writing.
The father has. He annexes correspondence making clear the entreaties he has advanced in relation to make-up time, proposals to address the problem through the supervised service collecting the children, albeit with some quibbling in relation to who would pay for it, and certainly, since the 26th of March, has been clear that he wishes to resume his time. It is the rebuttal of all such entreaties that have led to this application, now successful.
In all of those circumstances, I am satisfied that justification and justice are made out.
The father has incurred expense. The mother also, although the mother appears today unrepresented, quite possibly on the basis that she cannot or does not wish to expend further funds meeting legal fees, indicating she has already expended $75,000 or more. However, one might infer the husband has had similar expenditure, although the quantum of expenditure is out of all proportion to the issue in the proceedings. That is not a criticism of the father’s solicitors. Far from it. He has not, to a large extent, had the running in relation to the property aspect of the proceedings even though he is the applicant.
It is the resistance of his relationship or the orders that he seeks for its practice that have led to the matter proceeding this far and now inevitably to final hearing. Accordingly, I am satisfied that it is just and equitable for an order for costs to be made.
In determining the quantum of costs, I must have regard to Division 21 of the Federal Circuit Court Rules 2001[15]. Departure therefrom is permitted, but should not occur without adequate explanation or compelling circumstance. I am not satisfied I need depart.
[15] Federal Circuit Court Rules 2001 (Cth) div 21.
By reference to the scale, the following costs would be entirely appropriate, namely, Item 2 interim or summary hearing as a discrete event ($1,867 plus daily Court fee), together with disbursements and hearing fee. Significant disbursements are not incurred in that filing fees with respect to contraventions are modest or non-existent. However, there are service fees, photocopying, conferences and the like. The material that is filed in support of the father’s case is expertly prepared. The case, as it were, without intending any disrespect to counsel, runs itself.
Counsel has brought significant focus to the evidence and thus permitted the matter to be dealt with in a duty list on the first return date and completed in a short space of time. In those circumstances, I am satisfied that there should be some further allowance in relation to preparation. There are 21 contraventions alleged. It is not that which is envisaged by item 2, a discrete interim or summary proceedings. The matter is prepared as though it is a final hearing. Accordingly, I am satisfied that there should be a further allowance with respect to preparation.
I propose to make that allowance in accordance with item 3 as additional preparation that would follow otherwise allowed preparation for hearing, a further $1,268.
In relation to the hearing itself, I certify as to counsel. I am satisfied that the daily hearing fee should be allowed, $2,241, (item 13), together with the advocacy loading, (item 12), $1,120.50.
Those amounts total $6,496.50. There are, of course, the disbursements I have already alluded to. I propose thus to round the sum to an amount of $7,000. There are then the expenses that have been incurred through the supervision paid for but which has not been provided. Those expenses of $2,442 should also be allowed. Thus, a total of $9,442.
In relation to variation of the order, I do not propose to remove the requirement for supervision at this time.
It has been put in place with the agreement of the parties and, for the reasons described above, there are valid concerns for it to remain both positive and protective. The concern, however, is that it is difficult to order make-up time when it is already occurring four times a fortnight and, if supervision is to remain, the expense would render that almost impossible, if not impossible.
On the basis of an acceptance of the father’s evidence that supervision is costing him $600 per week or so, it would be financially crippling for both of these parties, although not disadvantageous for the children on any other basis, to increase the amount of time.
The cost would increase perhaps not significantly, but it would increase. There is also the distance to be traversed and a consideration of the abject distrust between not only each of these parents but their extended families, commented upon at length by Dr D.
On balance, I am satisfied that the best that can be done is to leave the times as they are but to vary the circumstances by which it is given effect to and who pays for it.
At present, the father is liable for all expense. There is no reason why he should be any further when he has already been frustrated in performance of the order for such a period. I propose to provide, by order, that the order will continue subject to the following two matters. Firstly, the supervised contact service will be responsible for collecting and returning the children from the mother’s home. That will add two hours of travel that the mother was required to undertake herself but which is the cause of many of the problems. It has not occurred.
The mother is clear in her evidence that she does not feel that there is anyone else who can undertake that travel for her if she was sick or unavailable and illness is suggested by her, although I have not accepted it as so, to be recurring and repeated. In those circumstances, thus cost will increase. The father is presently paying for three hours’ time to have a two hour visit. It will mean that there will be payment for four hours of time for a two hour visit.
There is no reason why, seeing as the contact service is, in effect, taking over the mother’s duty of travel, that the mother should not pay that, being one-half of the total cost.
For those reasons, orders are thus made as follows.
I certify that the preceding one hundred and forty-two (142) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 28 October 2019
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