Vaughton and Randle (No.3)
[2012] FMCAfam 613
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VAUGHTON & RANDLE (No.3) | [2012] FMCAfam 613 |
| FAMILY LAW – Contravention application relating to parenting orders. |
| Family Law Act 1975, ss.70 NAE & 70NAF |
| Smit & Pickworth (1981) FLC 91-071 Livesey v the New South Wales Bar Association (1983) 47 ALR 45 |
| Applicant: | MR VAUGHTON |
| Respondent: | MS RANDLE |
| File Number: | ADC 3046 of 2010 |
| Judgment of: | Lindsay FM |
| Hearing date: | 7 March 2012 |
| Date of Last Submission: | 7 March 2012 |
| Delivered at: | Adelaide |
| Delivered on: | 7 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | Adey Lawyers |
| The Respondent: | In Person |
| Counsel for the Independent Children’s Lawyer: | Ms Fuda-Duncliffe |
| Solicitors for the Independent Children’s Lawyer: | Legal Services Commission |
ORDERS
The Court finds that the mother contravened the orders of the Court in the manner alleged in both counts of contravention alleged in the Contravention Application filed by the father on 15 February 2012.
The question of penalty to be imposed upon the mother in relation to the finding of contravention as outlined in paragraph 1 hereof be reserved.
Further consideration of the Contravention Application filed by the father on 23 November 2011 be adjourned to a date to be fixed pending receipt of transcript of the Court hearing of 22 September 2011 and 1 November 2011.
The Contravention Application filed by the mother on 12 December 2011 be dismissed.
The matter be adjourned part-heard to 8 March 2012 at 10:00am.
IT IS NOTED that publication of this judgment under the pseudonym Vaughton & Randle (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3046 of 2010
| MR VAUGHTON |
Applicant
And
| MS RANDLE |
Respondent
REASONS FOR JUDGMENT
This was to be the resumed hearing of the parenting dispute extant between the parties in relation to parenting arrangements for the one child of the relationship, [X]. But before we could embark upon hearing the balance of the evidence, I had to deal with some contravention applications that had been filed.
There were two applications filed by the father; one by the mother. As I indicated at the outset of today’s proceedings, my understanding is that I am obliged to deal with the contravention applications first. The authority for that is Smit & Pickworth (1981) FLC 91-071. But it makes sense, in any event, it is just commonsensical to this extent, that before someone is put at risk of quasi-criminal sanctions because of a failure to comply with orders (in this case both the mother and the father), it is important that evidence they give in relation to the substantive proceedings is not used against them; necessary evidence they give in relation to the substantive proceedings is not used to go into the balance in determining whether the contraventions were made out. So we should deal with the contraventions first, on the basis, only of the evidence that is relevant to those matters and that is why we proceeded in that way.
Having said that, the father’s decision halfway through, or perhaps more than halfway through proceedings, to bring the contravention proceedings before the Court, was always one that was going to carry consequences. He must be taken to have assumed the risks that arise from a judicial officer being asked to deal with these kinds of applications before all of the evidence is in on the substantive proceedings, and it may be that my hearing of the contravention proceedings has compromised my ability to continue to hear the substantive proceedings. I am not criticising anyone for that, but it must be thought to have been something that was a live option when he brought the contravention proceedings.
The mother is not legally represented, of course, so her decision-making to bring her application is, perhaps, less surprising. Her application, it seems to me, has been brought for tactical reasons knowing that the application was coming, as it were, in relation to her non-compliance with the order on 10 December last. She has brought this application, I think, as a pre-emptive strike, as it were.
There are two contravention applications that the father has brought: one relates to 10 December and 12 February; and the other relates to the 12 November, which was a weekend following time-spent that was taken on 5 November, when the father married his wife, and arrangements were made for the presence of the child at that wedding. They were arrangements that had been foreshadowed in a notation I made to my orders of 21 September, and it was the subject matter of an order on 1 November.
The mother’s defence, in relation to that, is that she thought there had simply been a mistake or an oversight on the part of the Court in ordering consecutive weekends. She thought that because she said I had expressed a view in respect of time-spent in January of last year, that consecutive weekends ought to be avoided. Her defence was to say, having heard me say that at the hearing on 1 November, that her reasoning was as follows: therefore, I must be taken to have not intended that there be consecutive weekends, despite my framing orders in those terms, both on 1 November, and as I say, pursuant to the notation back in September.
I only need to express the defence for it to be seen how important it is for me to have a transcript of the hearings on those days, to see whether there is any ambiguity about my position. It is what might be described as an artful defence to the matter; it might be both artful and possessing of substance, we will not know until we have read the transcript. It may be that when we have read the transcript it will simply be an artful defence, and not have any substance. So I will not know what the outcome of that hearing will be until I have had the opportunity to read the transcript.
I will deal first with the mother’s application filed on 12 December. She alleges that the father breached paragraph 7 of the orders of 28 March 2011, in that he did not pay “forthwith”. Paragraph 7 says:
The mother book all airfares associated with the child’s travel to Adelaide to facilitate time in accordance with paragraphs 4(a) and (b) of this order, with the father to forthwith reimburse the mother for half of such costs upon presentation of an account to him.
Her evidence was that she wrote to the father’s solicitors on 2 December, gave a copy of the flights, the father’s contribution was $570, and she asked for that amount to be paid. As of 9 December, it had not been paid, and that led to her taking certain other steps. But she brings her own application which asks me to deal with the father for a contravention of the order relating to reimbursement.
In the first instance, it is a question of ascertaining whether there has been a breach of the order. The father’s obligation is to forthwith reimburse the mother for half of the costs upon presentation of an account to him. The order does not specify the mode of delivery of the account. It is an important order, and there have been occasions during the course of these proceedings when I have had to remind the father of the importance of that obligation. So there is no question about the Court not taking his obligation under the order seriously; it is a matter that needs to be taken very seriously indeed. But in order to ground a contravention of the order, the mother would first have to establish the presentation of the account to him. “Forthwith”, has an ordinary meaning easily understood – it means as soon as is practically possible; it means immediately, but what is immediate will depend upon the circumstances in which the information is given to him as to the airfares, and the circumstances in which he goes about paying it. But generally speaking, one would expect him to pay the accounts within a few days – we can use the vernacular – of the presentation of an account to him.
We know from the father’s evidence, and we know from the mother’s evidence, that the mother has his email account. Had she, on 2 December, forwarded the account to him at his email address, with the evidence being that the account was not paid until the 9th – that is when the father says it was paid on his behalf by the mother, and the mother herself is not in the position to gainsay that – the delay of a week involved in the reimbursement of the account may well have constituted a failure to comply with the order. I leave that open; it is certainly arguable; a week in such circumstances is a period of time that is difficult to describe as “forthwith”.
But the mother did not forward the account to him, even though there was no legal impediment to her doing so. She tried to suggest to me that she could not do that because she thought she was obliged to forward it to his solicitor. There is no basis for her forming that view at all. The order does not frame itself in terms of presentation of an account to his solicitor. The difficulty she has is there is no way of ascertaining when it is that the solicitor forwards the account to him, or notifies him of it – or attempts to notify him of it, perhaps successfully, perhaps unsuccessfully on one or two occasions. Serving the account upon the solicitor – presenting the account to the solicitor – is inconsistent with an insistence upon scrupulous compliance with the order, because there is no way of establishing, on the balance of probabilities, that the account was presented to him either on 2 December, or within a specified period of that date. His evidence was that the account was paid on 9 December. Because there was no presentation of the account to him, firstly, and secondly, because I am not able, on the evidence to infer a constructive presentation of the account to him via his solicitor, the charge must fail. I am not satisfied, on the balance of probabilities that the contravention has been made out. The application filed on 12 December will be dismissed.
The factual circumstances relating to that application also had some bearing, though, upon the other applications that I heard. The way I went about hearing the contraventions today was to deal with them in time order, from the earliest alleged contravention to the latest.
So the third, in time, are the two counts that are constituted by the father’s application filed on 15 February. It is alleged that the mother did not comply with the order on 10 December last year. It is alleged that she did not comply with the order on 12 February and even though it does not say so, when we go to the terms of the s.70NAE of the Family Law Act 1975, the legislative structure is such that I must imply, within any charge framed relating to the contravention of a parenting order, I must imply an additional term that it has been a compliance without a reasonable excuse. The reasonable excuse must be negated by the evidence adduced by the person who is promoting the contravention application.
So in terms of the evidence of 10 December, the mother’s position is this: that on 2 December she forwarded the account. She produced her bank accounts indicating that she had made payments in relation to a period of time-spent that was to occur later in the month of December, and that having placed her in an impecunious position, she was not in a position to comply with the order on 10 December because of financial embarrassment. In other words, because of the steps she had taken to pay the account as it related to the time-spent that was to occur later in the month of December, coupled with the circumstance that the father had not made payment of the account she had presented to his solicitor on 2 December, she was out of funds. Her bank accounts indicate that on 9 December she had a sum in excess of $100 in it, but she says that she was financially embarrassed in that she did not have money to pay for the petrol to get to the airport, she did not have money to get from the airport to wherever she was going to be staying in Adelaide, and to meet accommodation and food expenses, and the like. That was essentially her case: that the combined affect of her prepayment, and the father’s default in payment was that she had no money. Having no money, she was unable to give the time-spent.
I do not accept her account and I do not accept her account for a number of reasons.
Firstly, it must be observed that the payment of the amount by the father upon presentation of the account, even though it is described as “forthwith”, is not a condition precedent to her obligation to give time-spent. I know she did not argue that, but it is worth observing that. There is no formal conditionality there – fulfilment of one before the obligation arises in the other. Having said that, there may be circumstances in which it would be reasonable for the mother to ask for such payment to be made before she gave compliance with the order. I would have to be satisfied of a number of matters in relation to that though, before that would amount to a reasonable excuse. First of all, I would have to be satisfied that she behaved reasonably in prepaying, by some weeks, the obligation relating to the Christmas time time-spent that was to occur. I am not in a position to make a finding one way or the other in relation to that. I certainly know, in terms of what happened at the previous Christmas occasion, that it was not a matter she gave a very high priority. But I am not able to find, one way or the other, in relation to that. It may have been a prudent thing for her to do. There may have been other matters she has not told me about, quite innocently, relating to convenience and the like, as to why that should be paid, but there was not necessity for her to make the payment at the time.
Secondly, she has not in any way put the father on notice, directly, or through his legal representatives, of her linkage of these issues. She has not said, for example, if this payment is not made, I am not in a position to go, because of these circumstances. It is not a representation she has made.
Thirdly, her utilising the solicitor as the mode of communication of the amount of the account and the demand for reimbursement pursuant to the order is inconsistent with her exigent financial circumstances. If she was truly apprehensive of an inability to travel to Adelaide on 10 December, because of her being out of funds, or not being reimbursed, one would have thought she would use the most efficient method of communication, which is directly to the father’s own email account. With the touch of a button the father would have been put on notice, as of 2 December, of the requirement to pay the account, and as I say, if there were real, as distinct from constructed or exaggerated, concerns in relation to her financial position, she could have put those to the father and given him the opportunity to make urgent arrangements for the money.
She could have asked her de facto spouse, who she lives with in Tasmania, the relationship with whom accounts for her departure from the State, and the very existence of these orders. She could have requested of him that he contribute to her expenses whilst she was awaiting receipt of the monies from the father. As it turned out, it would have been a very short term loan, had he done so. For instance, had he made that loan on 9 or 10 December prior to her departure, the day she would have arrived back in Tasmania, she would have found the money sitting her account. That is even if I accept there is this time delay between the 9th and the receipt of moneys in her account, given that there were two different banking institutions involved.
So, I am very far from being persuaded that the circumstances relating to finances provide any kind of reasonable excuse. I would go further and say I am satisfied that she has deliberately misled me in relation to her position at this time, so as to provide an excuse, or occasion, for what was her intention not to comply with the order. Her evidence made very plain that she does not regard the fortnightly time-spent as an order that is in the best interests of the child. She has, as far as I am able to determine, been unable to intellectually make the acceptance that the giving of the time-spent was the quid pro quo, as it were, for her entitlement to remain in Tasmania, in highly controversial circumstances.
I am not going to revisit matters that have been addressed in previous interlocutory judgments, but I had considerable reservations about her conduct at or about the time of her departure from Adelaide to Tasmania, and then about the truthfulness of her accounts given to me, and given to Cole FM as to various aspects of her decision-making. So the view I take is that there was a deliberate non-compliance on 10 December, and that the matters relating to impecunious circumstances were invented by her, so as to try to cloak what was her real intention about not giving compliance.
The relevant burden of proof is on the balance of probabilities – that is in the statute. We find that at s.70NAF a different standard applies if there is a question that arises as to the imposition of the more serious sanctions, but we are not in the penalty phase of the hearing yet. The view I take, in relation to that, is if the more serious penalty provisions do become applicable, and they well might, my obligation is to reconsider the evidence from that perspective. Presently, it only requires me to be satisfied on the balance of probabilities as to the fact of the contravention and as to the fact of it having occurred without a reasonable excuse, and I am so satisfied.
She had an obligation to give the time-spent. There is no doubt about that. She did not give it. There is no doubt about that, and I find she had no reasonable excuse for not giving the time-spent. I reject, as inherently unbelievable, the account she provided, in relation to the circumstances of her non-compliance. It is not just the inherent unlikelihood of it, I find that she lied to me as to her holding a genuine view as to her financial circumstances preventing her from giving compliance with the order. She well knew she was in a position to give compliance. The truth of the matter is she chose not to give compliance.
11 February contravention is rather more straightforward. We know that compliance was not given. We know it, because she wrote to the father’s solicitor and said, “I’m not giving it.” She wrote on 7 February and announced to the father’s legal representatives that she would not be present in Adelaide for the coming scheduled visit of the 11 and 12 February. The excuse she gave is the same one she promoted before me, that she regretfully did not have the financial means to bring [X] to Adelaide for the visit. Having made plain that is the nature of her defence, that is, there is no issue about her not having complied.
She said she has a reasonable excuse, and that is her financial circumstances, but then produces very little evidence, in relation to her financial circumstances. I accept that there would have been a reduction in her income over the Christmas holiday period but there are no bank accounts presented to me. Again, there is no suggestion that she has even made a request of her de facto spouse for financial assistance. Her position about that was that he had loaned her money before, and she had been unable to pay it back, so she did not want to ask him again. But that altogether ignores the whole factual background to these proceedings.
These proceedings arise solely on account of her decision to accompany him, for reasons relating to the exercise of time-spent with his own child , to accompany him to Tasmania to leave her place of residence in Adelaide to travel with him to Tasmania. I do not know anything about his financial position, but I am able to say that in those circumstances her making a request of him, so as to avoid her facing a contravention application, so as to facilitate the exercise of time-spent by the father, her making a request of him is something that I would reasonably expect her to have done so in the circumstances, and the fact she has not suggests to me again, that what is afoot here is just, plainly and simply, an intention not to comply with the order.
That is an especially safe inference, it seems for me to draw, when I look at what happened on the following weekend. It is not the subject of a contravention, and, in fact, given that she has been asked about it during the course of these proceedings, it would probably be inappropriate for such an application to be brought. If it is brought, it would probably be subject to an order that sought dismissal on account of an inherent unfairness about her being prosecuted, and prosecuted successfully, for a contravention on the basis of answers she gave in the context of another proceeding.
But leaving that to one side, she did not give time-spent on the following weekend, the 25th and 26th, and we know from her own evidence that she travelled to Sydney with her de facto spouse, I am told, for the purposes of a musical concert. Now, I do not know the ins and outs of the circumstances in which that trip arose, but I know that she did not pay for the trip. We know that her de facto spouse paid for it, and I am seriously asked to accept a financial incapacity on the 11th and 12th, an inability to even request from the de facto spouse financial assistance in relation to her being able to honour her obligations under the order, but then a fortnight later, no difficulty about accompanying her de facto spouse, at his expense, to Sydney.
That is just a sheer inconsistency between those sets of circumstances. Again, there is a paucity of evidence in relation to her financial circumstances, in any event. There is no attempt to put the father upon notice of her impecunious financial circumstances. The first he knows about it is the announcement via his solicitors four days prior that the time-spent will not be occurring.
For all of these reasons, I am satisfied on the balance of probabilities that she intended not to comply with the order. The claim of financial impecuniosity is not made out. It is advanced in an attempt to provide an excuse for what was always her intention which was not to give compliance with the order at that time.
She will be convicted, in respect of each of the counts of contravention that are dealt with in the application filed on 15 February. The matters that I have referred to in assisting me in establishing her guilt of these contraventions beyond a reasonable doubt are matters that I am not announcing for the first time in my Reasons. They are matters that I put to her, during the course of the giving of her evidence. They are matters that, albeit, in the context of her being under her oath, she had an opportunity to respond to, before the conclusion of the hearing. It is not a question of her not having had an opportunity to put her arguments. Her arguments were framed upon the evidence she gave.
Her difficulty was the implausibility and falsity of the evidence that she presented and answered to these counts.
Now, to turn to the question of penalty I am inclined to think, subject to what everyone has to say, that I should postpone the question of penalty until the finalisation of the other count of contravention, which as I say, will not be able to occur until the transcript is available in relation to the hearings in September and November of last year. I think it is appropriate and in the mother’s interest that she is sentenced at the one time, in respect of all these matters.
I do not think it would be fair to sentence the mother in respect of these findings, when there is the possibility that she will be convicted in respect of another contravention that occurs very close in time to these ones, and involves very similar factual considerations. I think she is entitled to put a submission that there should be the one comprehensive penalty, in respect of any findings of contravention that are made.
It remains a possibility that she will be convicted, and in those circumstances I think the imposition of penalty, in respect of the findings I have made today should await the determination as to whether or not there will be a third conviction. I am going to adjourn this matter to a date when the mother can be personally present so it might need to be a date that has something to do with her attendance in Adelaide for time-spent. We can either do it on a Friday or a Monday to try to accommodate her presence in Adelaide in those circumstances.
So I will not formally pronounce the adjournment orders in relation to either the matter that is awaiting trial, or the matters that are awaiting penalty, because that leads me to the next matter.
Having, both in my Reasons and during the course of the giving of her evidence, indicated unambiguously to the mother that I thought she was deliberately misleading me, lying to me about the circumstances in which she did not give compliance with the order it seems to me a real question arises as to whether it is appropriate for me to continue to preside in the substantive proceedings, and I will hear from everyone about that now. Just before I do though, I perhaps should just remind us all of what the High Court had to say about this issue in the case of Livesey v the New South Wales Bar Association (1983) 47 ALR 45 and in the fourth to last paragraph, under the heading “Was There an Appearance of Pre-Judgment or Bias?” the High Court said:
Necessity and the extraordinary case make it impossible to lay down an inflexible rule; each case must be determined by reference to its particular circumstances. It is, however, apparent that, in a case such as the present where it is not suggested that there is any overriding consideration of necessity, special circumstances or consent of the parties, a fair-minded observer might entertain a reasonable apprehension of bias by reason of pre-judgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.
So here it has been a trial within a trial, but the fact remains that I am yet to adjudicate on the substantive issues in this case, and if I do, it will be against the background of me having unambiguously formed the view that the mother has lied to me about the circumstances relating to her failure to give time-spent under the orders, so it is not just the credit finding, it is the credit finding tied up with what must be thought to be a fairly significant aspect of a relocation case.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 28 June 2012
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