Vadisanis and Vadisanis

[2011] FamCA 643

FAMILY COURT OF AUSTRALIA

VADISANIS & VADISANIS [2011] FamCA 643

FAMILY LAW – CHILDREN – orders – contravention – where the mother’s failure to comply was unintentional and a genuine mistake – court finds the mother had a reasonable excuse for the contravention under s 70NAE – contravention application dismissed – COSTS – circumstances justifying order under s 117(2) – costs order made

Family Law Act 1975 (Cth) - s 70NAC, s 70NAE, s 117

Taikato & R (1996) 186 CLR 454

APPLICANT: Mr Vadisanis

RESPONDENT: Ms Vadisanis

FILE NUMBER: SYC 6377 of 2008

DATE DELIVERED: 26 July 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 26 July 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Dlakic, Johnston Vaughan

SOLICITOR FOR THE RESPONDENT: Ms Menkes as agent for Campbell Paton & Taylor

Orders

1. That the contravention application filed by Mr Vadisanis on 31 May 2011 is dismissed.

2. That the applicant pay the respondent’s costs of the above application in the sum of $3,500.00.

3. That the applicant pay the costs referred to above within eight (8) weeks.

4. In the event the applicant fails to comply with the order for costs made today with the respondent’s election the amount due to her may be offset against any obligation by her to pay the applicant’s costs ordered previously.

IT IS NOTED that publication of this judgment under the pseudonym Vadisanis & Vadisanis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6377 of 2008

Mr Vadisanis

Applicant

And

Ms Vadisanis

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. These proceedings concern an application filed by Mr Vadisanis (“the father”) on 31 May 2011 seeking that Ms Vadisanis (“the mother”) be dealt with for a contravention without reasonable excuse of a parenting order made by Le Poer Trench J on 23 December 2009.  The relevant order is Order 9 which states:

   In the event of either parent taking the children outside of the Sydney Regional area or the Orange regional area for the purposes of a holiday they are to notify the other parent of their proposal to do so and where the children will be housed during that holiday.

3. The children are M, who was born in 1998, and R, who was born in 1999.  The children, pursuant to the orders made by Le Poer Trench J, reside with the mother who has sole parental responsibility.  There is a regime contained in the orders for the children to spend time with the father.  The arrangement for the children to spend time with the father is somewhat complicated and relevantly subject to Order 16 as follows: 

   (16)The father’s time with the children pursuant to Order 4 hereof is conditional upon the following:

   a)The father notifying the mother’s solicitor and the Independent Children’s Lawyer in writing of the name and professional qualifications of the therapist he has engaged;

   b)Confirmation from the therapist that therapy has commenced for the father; and

   c)Confirmation from the therapist that he/she has received a copy of each report of [Dr B], a copy of the report of [Dr H], a copy of these orders and a copy of the Reasons for Judgment.

4. The effect of Order 16 at the present time is that the children rarely spend time with the father and are not able to spend time with him other than at a contact centre. 

5. The father relied on an affidavit sworn by him on 31 May 2011.  The mother relied on affidavits sworn by her 17 February 2011 and 22 July 2011.  Neither party was cross-examined.

Background facts

1. The parties commenced cohabitation in November 1996 and were married on 15 February 1997. 

2. The two children were born on the dates to which I have already made reference; they are respectively 13 and 12 years old. 

3. The parties separated in October 2008.  Within a short time of the parties separation litigation commenced in this Court.  It has continued unabated since then.

The applicable law

1. The consequences of a failure to comply with orders that affect children are found in Div 13(A) of Part VII of the Family Law Act 1975 (Cth) (“the Act”). For contravention applications the Court may find that a contravention is alleged to have occurred but is not established, subdivision C of the Act or subdivision C of the Part; or that a contravention has occurred but there is a reasonable excuse for the contravention, subdivision D; or that there was a contravention and there is no reasonable excuse for the contravention, subdivision E for less serious contraventions and subdivision F for more serious contraventions.

2. The meaning of “contravened an order” is set out in s 70NAC of the Act and is as follows:

   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; or

   (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. (original emphasis)

3. The onus of proof rests on the applicant to prove that the respondent contravened an order affecting children.  In this case, the standard of proof is on the balance of probabilities.

4. If the contravention is proved the onus shifts to the respondent to establish on the balance of probabilities a reasonable excuse for not complying with the orders.  The meaning of reasonable excuse is found in s 70NAE which is set out below:

   (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).

5. Section 70NAE(1) is to the effect that the circumstances described in the subsections that follow are not the only circumstances in which reasonable excuse may be established.  It is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse.

6. Reasonable excuse in s 70NAE(1), for example, will be seen as providing for an objective test, albeit one that might include subjective elements. 

7. In Taikato & R (1996) 186 CLR 454 the High Court per Brennan CJ, Toohey, McHugh and Gummow JJ in a different context considered the meaning of the words reasonable excuse and provided this guidance:

   The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception…

   …

   However, the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence….

The alleged contravention

1. It is the applicant’s unchallenged evidence that in the course of contact with R he discovered that the children had been taken to Queensland by the respondent.  The respondent had not informed him she would take the children to Queensland for this holiday.  The respondent admits her failure to inform the applicant about her proposal to take the children to B Town and on to Queensland for a holiday.

2. She claims she has a reasonable excuse for not doing so.  In a nutshell, the applicant says her failure to comply with Order 9 was a mistake.  Not that she misunderstood the obligation imposed upon her by the order but, rather, that she overlooked her obligation.  It is noteworthy her evidence was not the subject of challenge. 

3. The respondent deposed to being primarily responsible for the children’s care, welfare and development.  She has had no financial support from the applicant for the children for a reasonably lengthy period.  The effect of the orders made by Le Poer Trench J has been that the applicant rarely spends time with the children and thus the overwhelming responsibility for their day-to-day and long-term care, welfare and development falls on her.  She recounts a history of difficult litigation with the applicant in relation to which, it would appear, there is no end in sight.  In circumstances where the applicant has yet to fulfil the preconditions for unsupervised time contained in Order 16, there was no obligation on the respondent to facilitate holiday time during the December 2010/2011 school holidays other than at a contact centre.  It is the respondent’s unchallenged evidence that the applicant has not availed himself of the opportunity to spend time with the children at a contact centre. 

4. In these circumstances, it is not hard to understand why the respondent overlooked the obligation imposed by Order 9 that she notify the applicant that she proposed to take the children out of the Sydney metropolitan area and the E regional area during the relevant school holidays.  There is nothing inherently incredible about her evidence and in these circumstances I accept her failure to comply was unintentional and a genuine mistake.  It is my view that the respondent has established a reasonable excuse for her failure to comply with the order.

Respondent’s claim for costs

1. Where a contravention application has been dismissed, the Act provides that an order for costs may be made against the unsuccessful applicant. The criteria are those found in s 117.

2. The first matter which must be considered is whether the Court is of the opinion there are justifying circumstances.  There are two justifying circumstances.  The first is that the applicant has brought proceedings in which he has been entirely unsuccessful.  The second is he had notice in the respondent’s affidavit of the basis of her claim to a reasonable excuse.  It is the respondent’s unchallenged evidence which established the grounds for reasonable excuse.

3. The factors that the Court would then look to are contained in subsection (2A).  Dealing with those in order. 

4. The parties’ financial circumstances, at least the applicant’s, are not the subject of detailed evidence.  Nonetheless it would appear both parties are in some financial difficulty.  The respondent is in paid employment as a nurse and until recently she supported the children without financial input by the applicant.  I do not know why the applicant did not contribute to the children’s support.  It is submitted from the bar table that he has significant legal fees and other expenses.  Nonetheless, he had obviously sufficient funds to incur the costs of conducting these proceedings.  It seems to me the evidence is insufficient to really draw any distinction between the parties’ financial circumstances and the application of the subsection is moot. 

5. Subsection (b) is not relevant. 

6. Subsection (c) relates to the conduct of the parties and would not, in this case, be relevant.   

7. Subsection (d) relates to whether the proceedings were necessitated by the failure of a party to the proceedings to comply with orders.  These proceedings have been initiated as a consequence of the mother’s failure to comply with orders and the application of the subsection favours the applicant. 

8. Subsection (e) relates to whether any party to the proceedings has been wholly unsuccessful.  The applicant has been wholly unsuccessful and the application of the subsection favours the respondent. 

9. Subsection (f) does not apply. 

10. Subsection (g) enables the Court to take into account such other matters as the Court considers relevant.

11. Before a party presses a contravention application, one would anticipate that he or she would take advice and reflect carefully upon their prospects of success.  In this application, the applicant presented three counts in relation to which it was alleged the respondent breached orders made by Le Poer Trench J.  When this application was before his Honour, the application, as presented, was listed for trial, ultimately before me.  Subsequently, there was conversation with the applicant’s lawyer and the respondent’s counsel in which it was indicated that the first two counts of the contravention application would not be pressed.  Appropriately, confirmation of that was sought in writing.  A response was not provided until the morning of the hearing which, in effect, confirmed the advice provided previously.  These are serious applications and in my view it was important for the respondent to have written confirmation of the application she was required to meet prior to the commencement of the hearing. 

12. There is no statutory indemnity against costs in applications of this type.

13. In this case, I place greatest weight on the applicant being wholly unsuccessful and that he was in possession of the facts before the case was called on for hearing today yet elected to proceed with this application.  In my view, the totality of the facts warrant an order for costs in the respondent’s favour.

14. It is indicated on the respondent’s behalf that costs in the vicinity of $7,000.00 have been incurred in relation to this contravention application.  That amount is surprisingly high and more than the Court should order on a party/party basis that the applicant pays.  I pause to observe that there is evidence the applicant himself has been willing to incur surprisingly high costs.  I note the letter of 17 June 2011, in which he claims $27,500.00 in relation to his application to reinstate an appeal.  That is, at first blush, a breathtakingly high quantum of legal costs for such an application.  But even if the applicant is willing to incur those sorts of costs, it does not follow that on an adverse party/party costs basis he should pay an unreasonably high rate towards the respondent’s cost.  Doing the best that I can, it seems to me a figure of about $3,500.00 is an appropriate sum for the applicant to pay on the respondent’s costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 26 July 2011.

Associate:     

Date:              17 August 2011