Vargas and Clarke

[2016] FamCA 717

FAMILY COURT OF AUSTRALIA

VARGAS & CLARKE [2016] FamCA 717

FAMILY LAW – CONTRAVENTION – Parenting Orders - Where it is alleged the mother failed to facilitate time between the child and father pursuant to final Orders – Where the father has failed to prove the alleged contraventions on the balance of probabilities - Applications Dismissed.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NEB, 70NECA, 70NFB, 70NFF, 65N

Childers and Leslie (2008) FLC 93-356
In the Marriage of Gaunt (1978) FLC 90-468
Stevenson v Hughes (1993) FLC 92-363

APPLICANT: Mr Vargas

RESPONDENT: Ms Clarke

FILE NUMBER: BRC 10951 of 2011

DATE DELIVERED: 26 August 2016

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Carew J

HEARING DATE: 25 August 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Self represented

COUNSEL FOR THE RESPONDENT: Self represented

Orders

1. The Applications filed by the father on the 15 April 2016, 3 June 2016 and 4 August 2016 alleging nine counts of contravention be dismissed.

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 Vargas & Clarke 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 BRISBANE

FILE NUMBER: BRC 10951  of 2011

Mr Vargas

Applicant

And

Ms Clarke

Respondent

REASONS FOR JUDGMENT

1. The parties to the current proceeding are Mr Vargas (“the father”) and Ms Clarke (“the mother”), who are the parents of C (“the child”) born in 2011.

2. The father has filed three Applications – Contravention dated 15 April, 3 June and 4 August 2016 alleging that the mother has contravened Orders made on 28 February 2014 and 25 August 2015 by failing to facilitate contact between the father and the child, failing to facilitate telephone time and failing to inform the father of an incident where the child was hospitalised.

3. A final Order was made in this parenting dispute on 28 February 2014 after a five day trial before Bell J. 

4. The Order of 28 February 2014 was varied by Forrest J on 25 August 2015 but not in a way that affects the current applications.

5. This matter came before me 4 July 2016 but was adjourned given the late service upon the mother.

6. Since that date the father has filed a further Application – Contravention alleging a further failure of the mother to facilitate time between the father and child pursuant to the Order of Forrest J.

7. There has been no previous finding that the mother has contravened an Order.

Brief background

1. The father and mother commenced cohabitation on 1 September 2010 and separated on 15 October 2011.

2. They have one child together, C, aged five years. The mother has another child, S, aged ten years.

3. The mother and children live with her parents in Region B. The mother is thirty-eight years of age.

4. The father lives in Town A. He is fifty-six years of age.

5. Although the order made on 25 August 2015 provides for supervised time to occur at Suburb H the parties agree that the contact occurs at the contact centre at Town FF.

The relevant paragraphs of the parenting Orders

1. Order 28 February 2014:

   (2)       The Mother shall inform the Father in writing of any serious illnesses or hospitalisation of the child.

2. Order 25 August 2015

   (4)      That the child, [C] born … 2011 (“the child”), shall spend time with the father at a children’s contact centre for a period of two (2) hours each alternate weekend under the supervision off the staff of such contact centre, with such contact to commence at [YY] Children’s Contact Centre [in Suburb H] as soon as such visits are able to be accommodated by the management of that centre after each parent has complied with all necessary intake procedures with that centre and each parent has been advised by the centre of the commencement date and time for such contact.

   (7)       The child shall communicate by telephone with the father every Wednesday between the hour of 5.00pm and 5.30pm and for the purposes of facilitation of this communication, the father shall provide a mobile telephone and sim card to the mother for the exclusive use of the child for these telephone calls, which phone the mother shall keep charged and turned on between at least 5.00pm and 5.30pm every Wednesday and she shall ensure that phone is made available to the child between those times to take a call from the father.

   (8)       That should the phone that the father purchases pursuant to the previous order be lost, damaged or destroyed, the mother shall inform the father in writing as soon as possible thereafter, following which he shall provide another phone to replace it.  

Determining an application for contravention

1. An Application-Contravention relating to an alleged contravention of a parenting Order is governed by Part VII Division 13A of the Family Law Act 1975 (Cth) (“the Act”). There are three distinct questions to consider in determining such an Application:

   a)Has an Order been contravened within the meaning of s70NAC;

   b)Does the respondent have a reasonable excuse within the meaning of s70NAE; and

   c)What sanction or other Order should be made, if any (Subdivisions B, C, D, E or F).

2. The mother will only be found to have contravened an Order if she has:

   a)Intentionally failed to comply with the Order; or

   b)Made no reasonable attempt to comply with the Order (s70NAC).

3. Subject to the type of sanction imposed, the onus of proof rests upon the father to establish that the mother has contravened the Order on the civil standard viz on the balance of probabilities (s70NAF(1)).

4. If it is found that the mother has contravened the Order then the mother must establish that she had a reasonable excuse on the balance of probabilities (ss 70NAE, 70NAF(2)).

5. Pursuant to s70NAF(3) if an order is to be made under subparagraphs 70NEB(1)(da) (fine for failure to enter into bond) or 70NECA(3)(a) (fine for failure to comply with a bond) or 70NFB(2)(a), (d) or (e) (community service order, fine or imprisonment) or 70NFF(3)(a) (fine for failure to comply with community service order or bond) then the Court must be satisfied beyond reasonable doubt that the grounds for making the order exist.

6. As to what is required of a ‘live with’ parent to comply with a ‘spend time with’ order, the Full Court’s decision in Stevenson v Hughes (1993) FLC 92-363 is apposite and in particular the quotation cited with approval from the trial judge’s reasons in the judgment of Fogarty J at 79,815-816:

   There is also implicit in every order for access an obligation imposed upon the custodian to take reasonable steps to do what they can to ensure that the stipulated contact occurs.

   …

   I have already made reference to the implied obligation of the custodian to take reasonable steps to ensure that the access stipulated in an order takes place. Words and actions have meaning in context and affect. It is not a sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: `You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter.

   Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.

   …

   ... the respondent has adopted on the occasions when those expressions have been used a passively obstructive stance inconsistent with her obligations under the order.

   It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance. That matter was emphasised as early as 1984 in Stavros and Stavros (1984) FLC 91-562, but I am afraid that the contrary attitude still appears to permeate the jurisdiction and the sooner that that misunderstanding is removed the better for everybody.

   (see also Elspeth & Peter; Mark & Peter and John & Peter (2007) FLC 93-341 at [35])

7. The Full Court in Childers and Leslie (2008) FLC 93-356 considered what was involved in determining whether a respondent had a reasonable excuse for not complying with an order and held at [28]:

   …The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother's actions were excusable.

   …

   Such an order places serious obligations on persons in the position of the mother in this case.

8. The Full Court further held that in determining such an issue it was relevant to consider other sections of the Act, in particular: (at [30] – [32])

   Section 65N in relevant part provides that:

   (2) A person must not:

   (a) hinder or prevent a person and the child from spending time together in accordance with the order; or

   (b) interfere with a person and a child benefiting from spending time with each other under the order.

   The objects of Part VII of the Act set out in s 60B include:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;

   …

   (d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   The principles underlying the objects are set out in s 60B(2) and include:

   (a) that children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together;

9. That s 65N also has relevance when considering whether a respondent has failed to make a reasonable attempt to comply with an order is apparent from s 70NAD which provides that a parenting order that deals with whom a child is to spend time is taken to include a requirement that people act in accordance with s 65N in relation to the order.

10. In In the Marriage of Gaunt (1978) FLC 90-468 the Full Court considered the nature of the enquiry relating to whether a respondent has a reasonable excuse and held at 77,398:

    The essential question is this – can a party who does not agree with a Court's decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child's welfare is, of course, the paramount consideration for the court in determining the access question in the first place. 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”…

11. So, in determining whether the mother has contravened a parenting Order on the facts of the present case, I firstly need to consider what attempt she made to comply with the Order in respect to the individual counts. If I am satisfied that she made a reasonable attempt to comply, that will be the end of the matter. If I am not satisfied that she has made a reasonable attempt to comply then I will consider whether she has a reasonable excuse. If I find that she does not have a reasonable excuse I will consider what sanction or other order I should make, if any.

Counts of contravention

1. The father initially sought to establish that the mother had contravened the Orders on nine counts.

2. Count 2 alleged a contravention of paragraph 4 of the Order made on 25 August 2015 in that the mother failed to deliver the child to the contact centre on 24 April 2016. Apart from making that assertion the father relied on no other evidence. The mother did not concede that this was a day on which time should have occurred. In the absence of any evidence count 2 was dismissed.

3. Count 3 alleged a contravention of paragraph 8 of the Order made 25 August 2015 in that the mother failed to facilitate telephone communication on 1 June 2016 but as paragraph 8 does not create an obligation to facilitate telephone communication this count was dismissed.

4. Count 4 alleged a contravention of paragraph 4 of the Order made on 25 August 2015 in that the mother failed to deliver the child to the contact centre on 14 February 2016. Apart from making that assertion the father relied on no other evidence. The mother did not concede that this was a day on which time should have occurred. In the absence of any evidence count 4 was dismissed.

5. Count 7 alleged a contravention of paragraph 7 of the Order made on 25 August 2015 in that the mother failed to facilitate telephone communication on 30 March 2016. Ultimately, the father did not press this alleged contravention upon perusal of the discharge summary from the Town L Hospital and accepted that the child was in fact undergoing surgery at the scheduled time.

6. Count 8 alleged a contravention of paragraph 4 of the Order made on 25 August 2015 in that the mother failed to deliver the child to the contact centre on 27 March 2016. Apart from making that assertion the father relied on no other evidence. The mother did not concede that this was a day on which time should have occurred. In the absence of any evidence count 8 was dismissed.

7. Four counts remained. 

Count 1

1. Count 1 alleged the mother contravened paragraph 4 of the Order made on 24 August 2015 without reasonable excuse by failing to deliver the child to the contact centre on 3 July 2016.

2. The mother denied the alleged contravention but conceded that this was a day on which the father was to spend time with the child pursuant to the Order.

3. The father contended that the mother travelled for work to Region SC on 2 July 2016 but failed to deliver the child the following day for the schedule time.

4. The mother conceded those facts however contended that as her parents were away she had to travel with her children to Town KE on 3 July 2016 to be looked after as she was due in Court on 4 July 2016, being the first return date of the father’s Application filed 3 June 2016. The mother lives in B Region and Town KE is a number of hours drive away. The mother contends that she sought to have the father’s application adjourned administratively because of late service but was not successful in doing so. She contends that she notified the contact centre and arranged for make up time to occur on 10 July 2016. It is common ground that the father did have make up time on 10 July 2016.

5. In my view the mother had a reasonable excuse for contravening the Order. Her children needed to be looked after and her parents were away. Town KE was a considerable distance and given the time frames, her decision to rearrange the time the child was to spend with his father seems to have been a reasonable alternative to bringing the children to court on 4 July 2016. There is no dispute that the father was able to take advantage of the alternative time. Even if I am wrong, I would not impose any sanction or make any further order in the circumstances.

Count 5

1. Count 5 alleged the mother contravened paragraph 7 of the Order made 25 August 2015 without reasonable excuse by failing to facilitate telephone time on 23 March 2016.

2. The father contended that he called on numerous occasions between the scheduled times and the telephone was not answered. He contends that he did not receive a telephone call that week, which is what he says sometimes happens if his scheduled time does not occur.

3. The mother denies that she contravened the Order.

4. The mother contends that although the telephone time did not occur, the child was not in her care on this date. She contends that the child was in the care of his grandparents as she was away with her work. She contends that she left instructions with her mother to ensure that the mobile telephone provided to the child by his father was turned on to receive the call. She contends that her mother informed her that she forgot to have the mobile available but when she remembered she placed a call to the father at 9.00pm that evening but the call went unanswered.

5. The father conceded that he had access to the mobile phone records for the child’s phone but had not made them available. The mother contends that the telephone records would establish that the father has not missed a weekly telephone communication with the child.

6. The father also conceded that the mother was often away with her work and left the children in the care of their grandparents.

7. I am not satisfied that the mother has contravened the Order as alleged. I am not satisfied that the mother intentionally failed to comply with the Order. I am satisfied that she made a reasonable attempt to comply with the Order by instructing her mother to have the mobile telephone available to receive the father’s call.

Count 6

1. Count 6 alleged the mother contravened paragraph 7 of the Order made 25 August 2015 without reasonable excuse by failing to facilitate telephone time on 24 February 2016.

2. The father contended that he called on numerous occasions between the scheduled times and the telephone was not answered. He contends that he did not receive a telephone call that week, which is what he says sometimes happens if his scheduled time does not occur.

3. The mother denies that she contravened the Order.

4. The mother contends that although the telephone time did not occur the child was not in her care on this date. She contends that the child was in the care of his grandparents as she was away with her work. She contends that she left instructions with her mother to ensure that the mobile telephone provided to the child by his father was turned on to receive the call. She contends that her mother informed her that she forgot to have the mobile available but when she remembered she placed a call to the father at 7.00m the following morning and the child spoke to his father.

5. The father conceded that he had access to the mobile phone records for the child’s phone but had not made them available. The mother contends that the telephone records would establish that the father has not missed a weekly telephone communication with the child.

6. The father also conceded that the mother was often away with her work and left the children in the care of their grandparents.

7. I am not satisfied that the mother has contravened the Order as alleged. I am not satisfied that the mother intentionally failed to comply with the Order. I am satisfied that she made a reasonable attempt to comply with the Order by instructing her mother to have the mobile telephone available to receive the father’s call.

Count 9

1. Count 9 alleged that the mother had contravened paragraph 2 of the Order made on 28 February 2014 without reasonable excuse by failing to advise the father that the child had been hospitalised in late March 2016.

2. The child broke his arm on the evening of 28 March 2016. He underwent surgery at the Town L Hospital on Wednesday 30 March 2016 and was discharged on 31 March 2016. It is common ground that the father became aware of the child’s injury at least when he next spent time with him pursuant to the Order.

3. It is also common ground that the father received a copy of the discharge summary from the mother on or about 19 April 2016.

1. The mother contends that prior to that time she emailed the father at an email address that she thought was current, namely, … The mother contends that she had not been notified of a change of email address for the father and had not noticed a change in his email address on any Court documents served upon her.

2. The father concedes that the email address to which notice was sent by the mother was an out of date email address for him but contends that the mother knew or should have known of his new email address as it appeared on Court documents filed by him. He concedes that he has not formally notified the mother of his changed email address other than on the Court documents.

3. The mother contends that as paragraph 2 of the Order made on 28 February 2014 does not impose a time limit she has not contravened the Order as she did notify the father in a reasonable time, even on his case. I accept that submission.

4. I am not satisfied that the mother has contravened the Order as alleged.

Summary

1. The father has failed to prove that the mother has contravened the Orders as alleged and I propose to dismiss his Applications.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 26 August 2016.

Associate: 

Date:  26 August 2016