Tothill and Crowther (No 3)

[2016] FamCA 664

FAMILY COURT OF AUSTRALIA

TOTHILL & CROWTHER (NO 3) [2016] FamCA 664

FAMILY LAW – CONTRAVENTION – where the father alleges that the mother filed to comply with parenting orders and did so without reasonable excuse – where there were initially 15 counts but where five counts are considered – where the mother either denies or admits with reasonable excuse – where if the parties require orders of the Court a listing for submissions will be made.

Family Law Act 1975 (Cth) 70NAC, 70NAE, 70NAF Family Law Rules 2004 (Cth) r 21.08
APPLICANT:	Mr Tothill

RESPONDENT: Ms Crowther

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 4457 of 2013

DATE DELIVERED: 15 August 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 14 & 29 April 2016; 
11 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: Nicholls Gervasi

COUNSEL FOR THE RESPONDENT: Mr McGinn

SOLICITOR FOR THE RESPONDENT: Ian Charman & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Du Barry

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

Orders

1. If either of the parties seek further orders in relation to the contravention application that party shall within fourteen [14] days from today provide the Court, the other party and the Independent Children’s Lawyer with an affidavit to which is annexed the specific orders sought.

2. Thereafter the Court will notify the parties of a listing for submissions.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tothill & Crowther (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4457  of 2013

Mr Tothill

Applicant

And

Ms Crowther

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 10 March 2016 Mr Tothill (“the father”) filed a Contravention Application relating to orders made on 9 November 2015 and 11 February 2016.  The application alleged 15 counts.

2. It is the father’s position that Ms Crowther (“the mother”) failed to comply with the parenting orders and that she did so without reasonable excuse.

3. The trial was heard over three days, 14 and 29 April and 11 May 2016.  Both parties were represented by counsel.  The mother and father agreed that the Independent Children’s Lawyer need not participate in the contravention hearing.

4. On the first day of trial counsel for the mother sought an adjournment on the basis that the mother had not had time to fully instruct her solicitors.  The application was opposed by the father.  The matter was adjourned to 29 April 2016. The hearing commenced on that day but was adjourned part heard concluding on 11 May 2016.

5. The father relied upon the following documents:

   a)Application for Contravention filed 10 March 2016;

   b)Affidavits of the father filed 10 March 2016 and 22 April 2016.

6. In addition counsel for the father relied upon a document entitled “Response to Wife’s List of Objections” and a Case Outline document.

7. The mother relied upon her affidavit filed 2 March 2016.  In addition counsel for the mother relied upon a document entitled “Objections to affidavit material filed in support of husband’s Application for Contravention” filed 10 March 2016.

8. Counts 12 to 15 were discontinued on 14 April 2016.  Counts 3, 4 and 10 were discontinued on 29 April 2016.

9. For reasons given on 29 April 2016 I dismissed items 5, 6 and 8 of the Contravention Application.

10. The mother responded to the remaining Contravention Applications as follows:

    ·Count 1 – the mother denied the contravention;

    ·Count 2 – the mother admits the contravention but claimed to have reasonable excuse;

    ·Count 7 – the mother admits the contravention but claimed to have reasonable excuse;

    ·Count 9 – the mother denied the contravention;

    ·Count 11 – the mother admits the contravention but claimed to have reasonable excuse.

11. The father was cross examined by counsel for the mother.  The wife chose not to give oral evidence.

Background

1. The parties have been in considerable dispute as to the parenting issues affecting the child.  The original proceedings commenced in 2013.  Orders of 9 November 2015 provided for interim arrangements pending the final hearing of the matter.  Those orders provided for the child to live with the mother and spend time with the father in the D Town area on alternate Sundays between 9.00 am and 5.00 pm.  Subsequent orders were made on 11 February 2016 restraining the mother from moving the child’s place of residence from the D Town area.  The order also provided for the child to spend time with the father during the period of the adjournment on two occasions, one in Adelaide on 13 February 2016 and one in F Town on 27 February 2016.

2. The final hearing of the matter is listed for four days before Justice Hannam commencing on 4 October 2016.

Particulars of the remaining alleged contraventions

Count 1

1. The alleged breach is in respect of paragraph 5(b) of the order made on 11 February 2016, namely that on 27 February 2016 the mother failed to deliver the child to the father. 

2. The order provides as follows:

   5.During the period of the adjournment the father spend time with the child:

   (a)…

   (b)in [F Town] on Saturday 27 February 2016 from 9.00 am to 5.00 pm with handover to take place inside the [F Town] Police Station.

3. The father says that upon arrival at the F Town Police Station at 9.45 am the mother made no genuine attempt to facilitate handover of the child to the father.

4. The mother denied contravening the order on this occasion.

Count 2

1. The alleged breach is in respect of paragraph 5(a) of the order made on 11 February 2016, namely that on 13 February 2016 the mother failed to deliver the child to the father.  The order provides as follows:

   5.During the period of the adjournment the father spend time with the child:

   (a)in Adelaide on Saturday 13 February 2016 from 9.00 am to 5.00 pm with handover to take place inside the [Suburb H] Street Police Station;

2. The father says that the mother failed to deliver the child to the father at the Suburb H Street Police Station.

3. The mother admitted this contravention but claimed to have a reasonable excuse.

Count 7

1. The alleged breach is in respect of paragraph 3.1 of the order made on 9 November 2015, namely that on 6 December 2015 the mother failed to facilitate time between the father and the child.  The order provides as follows:

   3.The child spend time with the father in Adelaide with handover to take place at the [G Park] Playground as follows:

   3.1.on Sunday 6 December 2015 from 9.00 am until 4.00 pm in the presence of the mother;

2. The father says that the mother cancelled the visit by text message received on 5 December 2015 without reasonable excuse.

3. The mother admitted this contravention but claimed to have a reasonable excuse.

Count 9

1. The alleged breach is in respect of paragraph 2.1 of the order made on 9 November 2015 (mistakenly referred to as 2.2 in the Contravention Application), namely that on 22 November 2015 the mother failed to facilitate time between the father and the child.  The order provides as follows:

   2.The child spend time with the father in the presence of the mother in [D Town] with the child to be collected from and returned to the [D Town] Post Office as follows:

   2.1.on Sunday 15 November 2015 and Sunday 22 November 2015 from 9.00 am until 12 Noon;

2. The father says the mother arrived at the handover location at 9.10 am and thereafter made no genuine attempt to facilitate handover between the father and the child.

3. The mother denied this contravention.

Count 11

1. The alleged breach is in respect of paragraph 2.1 of the order made on 9 November 2015, namely that on 15 November 2015 the mother failed to facilitate time between the father and the child.  The order provides as follows:

   2.The child spend time with the father in the presence of the mother in [D Town] with the child to be collected from and returned to the [D Town] Post Office as follows:

   2.1.on Sunday 15 November 2015 and Sunday 22 November 2015 from 9.00 am until 12 Noon;

2. The father says the mother failed to facilitate time between the father and the child in the presence of the mother.

3. The mother admitted this contravention but claimed to have a reasonable excuse.

The Law

1. Division 13A of Part VII of the Act deals with “consequences of failure to comply with orders, and other obligations that affect children”.

2. 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 had 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).

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;

(b)otherwise--he or she has:

(i)intentionally prevented compliance with the order by a person who is bound by it; or

(ii)aided or abetted a contravention of the order by a person who is bound by it.

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 are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.

(3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

(4)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

(a)the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

(b)the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(6)A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and

(b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

(7)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:

(a)the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

(b)the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

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)     paragraph 70NECA(3)(a); or

(a)paragraph 70NFB(2)(a), (d) or (e); or

(b)paragraph 70NFF(3)(a);

if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.

Rule 21.08 – procedure at hearing

At the hearing of an application mentioned in item 1A, 2, 3, 4 or 5 in Table 21.1, the court must:

(a)inform the respondent of the allegation;

(b)ask the respondent whether the respondent wishes to admit or deny the allegation;

(c)hear any evidence supporting the allegation;

(d)ask the respondent to state the response to the allegation;

(e)hear any evidence for the respondent; and

(f)determine the case.

Discussion and findings

Count 1

1. The father relies upon paragraphs 12.1 and 12.3 of his affidavit filed 10 March 2016 in support of the alleged contravention.

2. The mother denies this contravention.

3. As to the contravention of 27 February 2016 the father accepted that he had been informed that the mother was running late.  He denied that the mother had made several attempts to put the child on the ground and assist in the handover.  He did admit however that the child was “clingy” and holding on to the mother tightly.  He admitted that he heard the child say that she “wanted to go home”.

4. Those parts of the affidavit of the father filed on 10 March 2016 which were allowed to remain as evidence set out the events of 27 February 2016.  The father alleged that the mother arrived 45 minutes late on that occasion.  He further alleges that the mother refused to hand the child over to him inside the F Town Police Station.

5. Paragraph 12.3 states:

   12.3I had all of my children with me during this visit, and once again the mother held [the child] the entire time.  The mother whispered to [the child] during the visit a lot.  [The child] did not seem upset at all during the visit.

   12.4I ended the visit at 11.10 am as the mother had still not put [the child] down.

6. The alleged contravention is that the mother failed to deliver the child to the father at the F Town Police Station at 9.00 am in accordance with the orders of 5(b) of the order made on 11 February 2016.  It also states that “upon arrival at the [F Town] Police Station at 9.45am, the mother made no genuine attempt to facilitate handover of the child to the father.”

7. During cross-examination the father admitted receiving an SMS message from the mother indicating that she was running late and that he had sent back an SMS “Okay”.  He conceded in cross-examination that her behaviour in sending the message and the message from the mother were polite and appropriate.  He conceded that the child was “clingy” but did not agree that she was upset during the time he spent there.  He agreed that he heard the child say to the mother that she wanted to go home on that occasion.

8. When asked during cross-examination whether he had attempted to greet the child or engage with her on that occasion, his reply was that he had acknowledged the child and tried to talk to her but she had her head in her mother’s neck.

9. Taking into account the communications between the mother and the father, which the father conceded were reasonable at the time, I am not satisfied that the father has established, on the balance of probabilities that the mother intentionally failed to comply with the order when she arrived 45 minutes late.  I am satisfied on the father’s evidence that the mother did make a reasonable attempt to comply with the order to be there at 9.00 am.

10. The next factor to be considered is whether the father has established that the mother contravened the order because she made “no genuine attempt to facilitate handover”.

11. The father’s evidence of the events of 27 February 2016 indicate that the mother was present with the child.  His affidavit evidence and his oral evidence established that the child was being held by the mother and did not engage directly with him. 

12. Taking into account the age of the child, and the difficulties in the relationship between the child and the father in the period leading up to late February 2016, I am not satisfied that the father has established on the balance of probabilities that the mother intentionally failed to comply with the order on that occasion, nor that she made no reasonable attempt to comply with that order.

Count 2

1. The father relies upon paragraph 10 of his affidavit filed 10 March 2016 and paragraph 12 and 13 of his affidavit filed 22 April 2016 in support of the alleged contravention.

2. The mother admits count 2 in that she breached paragraph 5(a) of the orders of the 11 February 2016 on 13 February 2016 at 9.00 am when she failed to deliver the child to the father at the Suburb H Street Police Station.  The mother says she did so with reasonable excuse.

3. The father’s affidavit filed on 10 March 2016 states in paragraph 10:

   The mother failed to deliver the child to the [Suburb H] Police Station at 9.00 am on 13^th February 2016.  I received an SMS message from the mother at 2.38 am on 13^th February 2016, saying that the child was unwell and that the visit was cancelled.  I only checked my messages at 7.20 am.

1. During the cross-examination of the father he was provided with various medical certificates and asked detailed questions about the certificates.  When pressed during cross-examination the father accepted that the child was so unwell that she could not be with him on 13 February 2016.  In particular, he said words to the effect “I guess I have accepted it”, when asked whether he accepted the explanation from the mother that the child was unwell and unable to attend on that occasion.

2. Taking into account therefore the father’s oral evidence in cross-examination and the communications between the mother and father concerning the child’s health, I am satisfied that the mother had a reasonable excuse for not complying with the order on 13 February 2016.

Count 7

1. The order of 9 November 2015 at paragraph 3.1 provided for the child to spend time with the father in Adelaide, with handover to take place at the G Park Playground on Sunday 6 December 2015 from 9.00 am until 4.00 pm in the presence of the mother.  The mother admitted the contravention but claimed to have a reasonable excuse.

2. The father relies upon paragraphs 6 to 6.3 inclusive of his affidavit filed 10 March 2016 and paragraphs 6 to 9 inclusive of his affidavit filed 22 April 2016 in support of the alleged contravention.

3. The affidavit of the father filed on 10 March 2016 sets out in paragraphs 6.1, 6.2 and 6.3 the events on that day.  This included that he received a text message from the mother at 6.05 am “informing me that she was unwell and that the visit could not go ahead as planned.  I did not see this message until 8.40 am as I was getting ready for the visit.”

4. During cross-examination the father was referred to the copies of the text messages which were annexed to his affidavit, annexures 4 and 5.  He admitted during cross-examination that as a result of these messages he was disappointed but that he had accepted what the mother said to be true concerning her illness and travelled back home.  When asked whether he had attended at the G Park on 6 December 2015, he admitted that he had not.

5. The evidence therefore establishes that the father did not attend at the allocated place of handover on that occasion following upon receipt of the messages from the mother.  I am therefore satisfied that the mother has established that she had reasonable excuse on that occasion.

Count 9

1. The father relies upon paragraphs 4 to 4.26 inclusive of his affidavit filed 10 March 2016 and paragraphs 3 and 4 of his affidavit filed 22 April 2016 in support of the alleged contravention.

2. The mother denies this contravention.

3. The father alleges that on 22 November 2015 at 9.00 am at D Town the mother arrived at the handover location at 9.10 am (10 minutes late) and thereafter made no genuine attempt to facilitate the time between the father and the child occurring in accordance with paragraph 2.1 (incorrectly referred to as 2.2) of the order of 9 November 2015.

4. Paragraph 2.1 of the order of 9 November 2015 provided that the child was to spend time with the father in the presence of the mother with the child to be collected from and returned to the D Town post office.  The mother denied this contravention.

5. Paragraph 4 of the affidavit of the father filed on 10 March 2016 sets out in detail the events which occurred on 22 November 2015 when the mother and child arrived 10 minutes late.  This included the father agreeing to the child and mother leaving for a period of time and then made arrangements to return.  The affidavit sets out some limited interaction between the father and the child.  The affidavit sets out the arrangements made between the parents with the interaction concluding at approximately 1.00 pm.

6. During cross-examination the father agreed that at the end of the interaction that day he believed the visit was going well.  He conceded that the mother was “eventually” cooperative and agreeable.

7. Considering the evidence in the father’s affidavit and his oral evidence during cross-examination, I am not satisfied that he has established, on the balance of probabilities that the mother made no genuine attempt to facilitate the time between the father and the child on that occasion.

Count 11

1. The father relies upon paragraphs 3.2 to 3.8 inclusive of his affidavit filed 10 March 2016 and paragraph 2 of his affidavit filed 22 April 2016 in support of the alleged contravention.

2. The mother admits count 11 in that she breached paragraph 2.1 of the orders of the 9 November 2015 in that on 15 November 2015 at 9.00 am she failed to deliver the child to the father at the D Town Post Office.  The mother says she had a reasonable excuse.

3. The affidavit of the father filed on 10 March 2016 sets out at paragraph 3 that he attended at the D Town post office at 8.50 am, waiting until 9.55 am.  The mother did not attend with the child.  He said that he sent text messages and that the mother did not reply.

4. In his affidavit filed on 22 April 2016 the father annexes the text messages he sent to the mother and the email he sent to the mother on 15 November 2015.

5. During cross-examination of the father, the Court received a bundle of correspondence between the parties’ solicitors dated 16 November 2015 and 17 November 2015, together with the correspondence which arranged make-up time for the father.

6. This correspondence sets out the allegations by the mother that she was not aware that the order provided for her to attend at D Town with the child on 15 November 2015.  The correspondence indicates that the father, through his solicitors, did not accept this excuse.

7. The father agreed that subsequently make-up time had taken place.

8. Arrangements were quickly made for the father to spend time with the child after 15 November 2015. 

9. I am not satisfied that the correspondence from the mother’s solicitors alleging that she was not aware of the Court orders which required the time to be spent on 15 November 2015 establish a reasonable excuse on behalf of the mother.  The correspondence from the solicitors is not evidence of the matters alleged in that correspondence.  The mother did not give evidence. 

10. The father admitted during cross-examination that he had been told in correspondence in November 2015 that the mother had not been served with the order and claimed that she was not aware of the order at the time of the alleged contravention.  He also agreed that make-up time had been subsequently arranged for him.

11. The father is not required to provide evidence which would offset the mother’s claim for reasonable excuse.  It is incumbent upon the mother to provide the evidence which establishes her reasonable excuse.

12. The mother did not give evidence.  I am therefore not satisfied that the mother had a reasonable excuse for failure to comply with the orders of 9 November 2015 on 15 November 2015.

13. I therefore propose to hear further submissions from the parties concerning what further orders, if any, should be made. taking into account the evidence that arrangements were quickly made for make-up time to occur.

Conclusion

1. If the parties require further orders of this Court in relation to the Contravention Applications a listing for submissions will be arranged.

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 15 August 2016.

Associate: 

Date:  15 August 2016