Vasil and Vasil

[2019] FamCA 772

FAMILY COURT OF AUSTRALIA

VASIL & VASIL [2019] FamCA 772

FAMILY LAW – ORDERS – Contravention – Where the father pursues four counts alleging that the mother without reasonable excuse did not permit the child to spend time with him – Where the mother denies all four counts – Where the father pursues one count alleging that the mother without reasonable excuse truncated his time with the child by 2.5 hours – Where the mother admits but pleads reasonable excuse – Orders.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF, 70NEB
Family Law Rules 2004 (Cth) r 21.08

APPLICANT: Mr Vasil

RESPONDENT: Ms Vasil

FILE NUMBER: ADC 1397 of 2017

DATE DELIVERED: 24 October 2019

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 1 & 2 October 2019 and 15 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant in Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Mr Jordan

SOLICITOR FOR THE RESPONDENT: Jordan & Fowler Family Lawyers

UPON finding that the mother is in breach of Count 3 of the Application for Contravention filed 22 September 2017

Orders

1. That there be no penalty imposed.

2. That each party shall pay their own costs of and disbursements in respect of the proceedings.

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 Vasil & Vasil 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 1397 of 2017

Mr Vasil

Applicant

And

Ms Vasil

Respondent

REASONS FOR JUDGMENT

Introduction

1. Mr Vasil (“the father”) and Ms Vasil (“the mother”) have been engaged in ongoing conflict concerning the parenting arrangements for X born in 2006 (“the child”).

2. On 18 May 2017 the following orders were made:-

   12.That until further order, [the child] do live with the [mother] and spend time with the [father] as follows:-

   (a)From 9.00am to 6.00pm every Saturday commencing 20 May 2017;

   (b)From after school until 7.30pm each alternate Monday commencing 22 May 2017; and

   (c)At further or other times as shall be agreed between the parties.

3. On 22 September 2017 the father filed an Application for Contravention of orders which, following amendment, alleged three counts of contravention in respect of Order 12(a).

4. On 3 August 2018 the father filed an Application for Contravention of orders alleging three counts of a breach of Order 12(a). At the commencement of the proceedings I considered argument that the breach of the order alleged to have occurred on 4 May 2018 could not be sustained and it was struck out.

5. The application proceeded on two counts only.

6. It is alleged by the father that the mother did not comply with paragraph 12(a) of the orders and that in respect of each count she did so without reasonable cause or excuse.

The hearing

1. For reasons that are not immediately apparent the applications for contravention of orders were not dealt with in the Federal Circuit Court.

2. On 21 June 2019 the substantive proceedings together with the outstanding applications for contravention were transferred to the Family Court of Australia.

3. Consequent upon the transfer and subsequent management by a Registrar, the applications for contravention came before me on 27 September 2019.

4. The father is self-represented. The mother is represented by her solicitor acting as counsel.

5. An application was made on behalf of the mother to strike out the applications for contravention but in particular the Application filed 22 September 2017 on the basis that there was not now any utility to hearing the application. If it is accepted that an application for contravention has as its primary purpose to ensure compliance with orders made, then the current circumstances affecting the child are substantially different to that which existed in 2017. Broadly speaking, the mother asserts that notwithstanding the orders, the parties have come to a different parenting arrangement in respect of the child, if not by agreement then by their ongoing conduct. That contention was not accepted by the father and ultimately I considered that he should be permitted to have his applications heard and determined. It was the father’s reasonable expectation that a contravention alleging a breach of orders would be heard and determined.

6. On 27 September 2019 I ordered that the Applications for Contravention filed 22 September 2017 and 3 August 2018 be adjourned for hearing to 1 October 2019 and if required further time was set aside on 2 October 2019.

7. As matters transpired the hearing concluded on 15 October 2019.

Application for contravention filed 22 September 2017

1. The statement of the alleged contravention is similar across the three counts.

2. Count 1 alleges that on 27 May 2017 at 9.00 am at Suburb A, the mother without reasonable excuse refused to allow the father to spend time with the child in breach of order 12(a) of orders made 18 May 2017.

3. Count 2 alleges that on 10 June 2017 at 9.00 am at Suburb A, the mother without reasonable excuse refused to allow the father to spend time with the child in breach of the said order.

4. Count 3 alleges that on 17 June 2017 at 3.30 pm at a soccer club, the mother without reasonable excuse collected the child two and a half hours earlier than the time ordered pursuant to the said order.

Application for contravention filed 3 August 2018

1. Count 1 alleges that on 19 May 2018 at 9.00 am at Suburb B, the mother without reasonable excuse refused to allow the father to spend time with the child in breach of the said orders.

2. Count 2 alleges that on 7 July 2018 at 9.00 am at Suburb B, the mother without reasonable excuse refused to allow the father to spend time with the child in breach of the said orders.

The law

1. It is div 13A of pt VII of the Family Law Act 1975 (Cth) (“the Act”) that designates the legislative pathway concerning an application for contravention of orders made in respect of children.

2. The following considerations apply to all counts under the 2017 application and the 2018 application.

3. Subdivisions C to F of Div 13A of Pt VII provides for the orders that are available to the court that can be made in instances where:

   (a)the contravention has been alleged but not established (sub-div C);

   (b)the contravention is established but reasonable excuse for the contravention is found (sub-div D);

   (c)the contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (sub-div E); and

   (d)the contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (sub-div F).

Section 70NAC – Meaning of “contravened” an order

1. 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…

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 not limited to, the circumstances set out in (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 exists.

1. Section 70NEB sets out the manner in which a court should deal with a contravention in circumstances where it is considered “less serious”.

Section 70NEB – Powers of the court

1. Section 70NEB sets out the power of the court as follows:

   (1)If this Subdivision applies, the court may do any or all of the following:

   (a)make an order directing;

   (i)the person who committed the current contravention; or

   (ii)that person and another specified person;

   to attend a post-separation parenting program;

   (b)if the current contravention is a contravention of a parenting order in relation to a child – make a further parenting order that compensates the person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;

   (c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;

   (d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;

   (da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by a person under paragraph (d) – impose a fine not exceeding 10 penalty units on that person;

   (e)if:

   (i)the current contravention is a contravention of a parenting order in relation to a child; and

   (ii)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and

   (iii)the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;

   make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);

   (f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and

   (g)if the court makes no other orders in relation to the current contravention – order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention.

2. Section NEC provides for the terms and conditions of a bond if a court requires a person to enter into a bond under s 70NEB(1)(d).

Rule 21.08 – Procedure for hearing

1. Rule 21.08 of the Family Law Rules 2004 (Cth) outline the procedure for the hearing of an application for contravention orders.

2. At the hearing of an application mentioned in items 1A, 2, 3 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.

3. The mother denied the breach in respect of Counts 1 and 2 of the Application for Contravention filed 22 September 2017 (“the first application”) and in respect of Counts 1 and 2 of the Application for Contravention filed 3 August 2018 (“the second application”).

4. The mother admitted Count 3 of the first application but pleaded that she did so with reasonable excuse.

5. At the conclusion of the evidence the father did not press the position that any breach established on the evidence should be considered as a “serious disregard” of the mother’s obligation under the primary order. I have determined that whilst the father’s applications for contravention should be heard, any breach should be considered as less serious.

Evidence and submissions – first application

Count 1

1. The father relies upon his Affidavit filed 22 September 2017 and in particular [5] to [10] inclusive as evidence in support of an alleged breach.

2. Following the orders made on 18 May 2017, the father had the child in his care on 22 May 2017. He became aware of a text message from the mother to the child which read:-

   Hi Love. Thinking about you. Try to do all your homework with your dad, then we will have free time to do stuff. If you want to come home early just say so & I will pick u up. He has to do what you say, not what he wants. See you in a few hours. Love you to infinity.

3. On 27 May 2017 the father attended at the mother’s premises to collect the child at 9.00 am. The gate was locked and he was not able to approach the front door.

4. The father then sent a text message to the mother who responded as follows:-

   [The child] has just told me that she doesn’t want to come with you today. We have to consider her wishes first and foremost. I suggest you give her some time to reconsider her decision.

5. In a subsequent text message exchange the mother told the father that she was not going to force the child to go with him against her will.

6. On a date after 27 May 2017 the father was able to inspect the child’s telephone. He observed the following text exchange from the child to the mother:-

   Dad won’t let me stay home. He’s here.

7. The mother’s response was as follows:-

   You don’t have to answer the door.

8. The mother’s evidence was that she was not at home and was at her place of employment from 8.00 am to 12 noon. It is assumed that the father was aware of the mother’s work commitments.

9. The text message exchange between the mother and the child would suggest that the mother was not at home.

10. Whilst I do not find that the mother encouraged the child to go with the father, the difficulty was that the arrangements were left to be determined between the child and the father.

11. In hindsight, the parties should have raised with the Court that the orders may be compromised by the mother’s absence.

12. In circumstances where compliance with the orders by necessity gave the child a level of control, I am not able to find that the mother has breached the order.

13. I dismiss Count 1.

Count 2

1. The father alleges that he attended at the mother’s home at 9.00 am on 10 June 2017. The gate was closed and locked. He formed the impression that nobody was at home.

2. The father sent a message to the mother telling her that he was at the property to collect the child. It appears that the mother was again at work. She sent the following message to the father:-

   [The child] told me that she text you this morning that she was unwell. She has had a severe anxiety attack and is on the emergency waiting list to see Dr C.

3. The father denies that he received a text message from the child and further alleges that soon after his arrival at the premises he saw the mother and the child leave the property by motor vehicle. He later discovered that the mother and the child had travelled to E Town for a short holiday.

4. The mother agrees that she did take the child to E Town but that it occurred in the afternoon after she had finished at work.

5. There are a number of areas of uncertainty on the evidence. The mother states that the child told her a message had been sent to the father. The father denies having received a message from the child. The parties are in dispute as to the time that the mother and child departed the home.

6. I have listened carefully to the evidence of each of the parties. I am satisfied that the mother was at work. I am not able to find on the evidence whether a text message was sent by the child but in evidence the mother was able to access the child’s phone and there appears to be some corroboration for a text message to have at least been written.

1. If the mother was at work then she could not have left with the child shortly after 9.00 am.

2. The uncertainty is such that the benefit of doubt must fall to the mother and as such I am not able to find that Count 2 has been proven.

3. I dismiss Count 2.

Count 3

1. On 17 June 2017 the child readily went with the father with the intention of spending time with him from 9.00 am until 6.00 pm. She was accompanied by her older brother.

2. One of the activities for the day involved the father and the children visiting the father’s local soccer club.

3. It appears that about 3.30 pm the son contacted the mother and asked that she attend and pick him up. The mother did so and upon her arrival asked the child whether she also would like to leave. The father observed that the child agreed to leave and did so. The father’s time with the child was shortened by two and a half hours.

4. The father later inspected the child’s telephone and observed the following text message exchange between the mother and the child:-

   Mother:If you want to leave just tell him you are leaving with Y. Text me & I will come outside to get.

   Child:Ok. We are going to macas now

   Mother:Ok      

   He can’t make you stay if you don’t want to be there. Tell him you don’t want to watch soccer.

5. The father tendered a short video of the child and the mother leaving the soccer field.

6. The mother was at work that day and says at about 2.00 pm she received calls and text messages from the child and Y, each of them wanting to come home. She went to the soccer fields because the children kept calling and texting.

7. When she arrived, Y approached her and told her that the father would not let the child leave with her. She approached the father and the child. The child told the father that she was leaving.

8. On this occasion the child had been with the father since 9.00 am. I find that no good reason existed for the mother to attend at the soccer field and take the child. Even if the child had wanted to go, the high water mark of the mother’s case is that the child may have been bored. No other good reason exists for the mother to terminate the father’s time with the child upon her arrival.

9. I do not consider that the departure of the child’s brother, any perceived boredom on the part of the child or her entreaty to the mother to take her home justifies the mother’s action in acquiescing to the child’s request to leave the soccer pitch.

10. I find Count 3 proven.

11. I consider that the breach having been proven, I am in a position to determine whether it should be considered as a more or less serious breach. As discussed, I consider that the breach should be treated as less serious and at the very low end of the scale.

12. Taking into account that the father’s time was shortened by two and a half hours and that it occurred in 2017, I do not consider that it is worthy of imposing a penalty other than noting that the Court makes a finding that the mother has breached the order.

Evidence & submissions – second application

Count 1

1. The father alleges that on 18 May 2018 he sent a text message to the mother asking that she confirm where the child was to be collected the next day. The issue was that the mother and child may have been at premises at Suburb A or premises at Suburb B. The father’s text message was the source of some consternation by the mother as ventilated in her evidence. She seemed bemused or even somewhat frustrated by the father not knowing where the child would be.

2. The father attended at the Suburb B premises on 19 May 2018 and time did not proceed.

Count 2

1. The father alleges that on 7 July 2018 he received a text message from the mother at 9.01 pm on the night before the child was to spend time with him to the effect that the child would not be attending. The father inquired as to whether there would be make up time but no response was received.

2. The consideration of Counts 1 and 2 are made more complicated by a disagreement between the parties as to whether at the time of the alleged breaches the parties had informally agreed to vary the terms of the order.

3. The mother considers that an agreement had generally been reached that the frequency of the time the child would spend with the father was reduced to each alternate Saturday. The father does not agree.

4. The parties jointly instructed Ms F, psychologist, to undertake a family assessment, the outcome of which is set out in her report dated 27 March 2019.

5. Ms F records the current arrangements as follows:-

   At the time of the assessment [the child] lived with her mother. The parties had agreed via consent Orders for [the child] to spend time with her father from 9 am to 6 pm every Saturday, from the conclusion of school until 7.30 pm each Monday and at other times as agreed between the parties. In interview both parents reported [the child] was spending time with [the father] on alternate Saturdays between 11 am and 5 to 6pm and intervening Mondays from after school until 7 to 7.30pm.

6. On 20 December 2017 Judge Cole delivered reasons which referred to the parenting arrangements between the parties in the following terms:-

   38.Time being spent with her father on the weekend has proved problematic. The father’s counsel advises that the father has not spent time with [the child] on a Saturday for some months.

   39.I am further advised however, that time has been proceeding in respect of the Monday evening each alternate week.

   40.The mother seeks an order that the father’s time be reduced on Saturdays from 9:00am to 2:00pm. The father opposes this and says that time should continue in its current format.

7. It is not controversial that the father’s time with the child has reduced significantly in its frequency. The father denies that this has occurred as a result of any acquiescence on his part to a variation of the orders, whereas the mother relies upon the fact of the circumstances being ongoing for an extended period of time and the observations of Ms F as corroboration for her assertion that there has been a tacit agreement between the parties that the initial order was being met with significant resistance from the child and therefore unworkable, but a less frequent arrangement was more likely to be accommodated.

8. I find that by 2018 the orders were not being observed by either party such that without an appropriate level of certainty the mother could not have known the extent to which the order should be complied with on any particular day and has a reasonable excuse for the child not attending with the father.

9. I dismiss Counts 1 and 2 of the application.

Conclusion

1. Given my finding that a breach has been established in respect of Count 3 of the first application, but that it is at the low end of the scale, I propose to find that the mother has breached the order but that no penalty should be imposed.

2. In the circumstances, each party should bear their own costs.

3. I make orders as appear at the commencement of these reasons.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 24 October 2019

Associate:

Date: 24 October 2019