Veitch and Dempsey
[2019] FamCA 187
•29 March 2019
FAMILY COURT OF AUSTRALIA
| VEITCH & DEMPSEY | [2019] FamCA 187 |
| FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Contravention – Where the children did not go into the mother’s care on two occasions – Where the father admits on one occasion but pleads reasonable excuse – Where the father does not admit the second occasion – Where the children have become involved in the inter-parental dispute |
| Family Law Act 1975 (Cth) div13A pt VII, ss 70NAC, 70NAE, 70NAF |
| Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 Stevenson & Hughes (1993) FLC 92-363 |
| APPLICANT: | Ms Veitch |
| RESPONDENT: | Mr Dempsey |
| FILE NUMBER: | ADC | 508 | of | 2015 |
| DATE DELIVERED: | 29 March 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 19 March 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Litigant in Person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Ms Ross |
| SOLICITOR FOR THE RESPONDENT: | Jacqui Ion Lawyers Pty Ltd |
ORDERS
UPON NOTING that Count 2 of the Application for Contravention filed 1 February 2019 is proven
IT IS ORDERED:
That the Application for Contravention is set down for the sentencing of the father on 9 April 2019 at 9.00 am.
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 Veitch & Dempsey 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 508 of 2015
| Ms Veitch |
Applicant
And
| Mr Dempsey |
Respondent
REASONS FOR JUDGMENT
Introduction
On 1 February 2019 Ms Veitch (“the mother”) filed an Application for Contravention of orders made 17 August 2018 (“the application”).
Mr Dempsey (“the father”) is the respondent to the proceedings.
When filed, the application alleged four counts of breaches of the parenting orders pertaining to C born in 2002, and H born in 2008 (collectively “the children”).
The mother alleges that the father failed to comply with the parenting orders made 17 August 2018 and that he did so without reasonable excuse.
The application was supported by the mother’s Affidavit filed 1 February 2019. Whilst not obliged to do so the father elected to file an Affidavit on 15 March 2019.
Background
C and H currently reside with the father. B born in 2004 currently resides with the mother.
The parties are of European descent. Their relationship commenced in 1998, they were married in 2006 and separated in 2014.
Following separation the children remained in the mother’s care whereupon she took the children to Belgium. The parties are not able to agree the circumstances surrounding the children leaving Australia. The mother contends that the children’s travel was with the knowledge and consent of the father. He denies that he either knew or gave consent for the children to travel to Belgium and contends that the mother’s actions were consistent with her plan to deny him a relationship with the children.
The children were ultimately returned to Australia in April 2015 following the father commencing an application pursuant to the Hague Convention on the Civil Aspects of International Child Abduction. A return order was made.
Since that time the relationship between the parties has been highly conflicted. There are allegations of family violence and each party considers the other to be at fault in the currently non-existent relationship between B, who resides with the mother, his siblings and the father and C and H, who currently reside with the father, and B and the mother.
Final orders were made by consent on 24 May 2017, but it could not be said that represented a resolution to the dispute between the parties.
Following contested interim proceedings, the following orders were made on 17 August 2018:-
(1)That paragraphs 3 and 4 of the orders made 24 May 2017 be suspended.
(2)That C born … 2002, B born … 2004 and H born … 2008 (“the children”) spend time with the mother between 10 am and 4 pm on each fourth Sunday commencing 19 August 2018 with handover to occur at the Suburb K McDonald’s Restaurant.
(3)That the said children spend time with the father between 10 am and 4 pm on each fourth Sunday commencing 2 September 2018 with handover to occur at the Suburb L Shopping Centre.
The parties considered that a potential way forward was to support orders that would bring the three children together. This may then provide a basis for further consideration of the ongoing future arrangements for the children to spend time with each of the parties.
Preliminary matters
At the commencement of the proceedings the Court raised with the mother that she should consider whether the alleged breach of the order on 11 November 2018 (Count 1) could be sustained in circumstances where she concedes that the father and the children were at the place of handover, but the mother by mistake was not.
In addition, the father’s counsel submitted that the alleged contravention of the order on 20 January 2019 (Count 4) should be dismissed on the basis that the statement of alleged contravention referred to the child B not being able to spend time with the father, C and H.
The proceedings were stood down whilst the mother obtained legal advice from the duty solicitor. Upon her return she sought that Count 1 and Count 4 be dismissed.
Accordingly, the proceedings alleging contravention relate only to an alleged contravention of the order on 9 December 2018 (Count 2) and on 6 January 2019 (Count 3).
Count 2
The alleged breach in respect of [2] and [3] of orders made 17 August 2018 allege that on 9 December 2018 at 10 am at Suburb K the father without reasonable excuse refused to allow the mother to spend time with C and H.
Count 3
The alleged breach in respect of [2] and [3] of orders made 17 August 2018 alleges that on 6 January 2019 at 10 am at Suburb K the father without reasonable excuse refused to allow the mother to spend time with C and H.
The father admitted the breach in Count 2, but considers he has a reasonable excuse. The father does not admit the breach as alleged in Count 3.
The law
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 for orders made under the Act. The alleged contraventions as set out arise from the parenting orders made by consent on 8 September 2014.
Subdivisions C to F of div 13A of pt VII provides the orders 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
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)…
(5)…
(6)…
(7)…
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.
Section 70NEA sets out the manner in which a Court should deal with a contravention in circumstances where it is considered less serious.
In respect of a more serious contravention the provisions are to be found at s 70NFA.
Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) outline the procedure for hearing of an application for contravention orders.
Rule 21.08 – Procedure at hearing
At the hearing of an application mentioned in item 1A, 2, 3, 4 or 5 in Table 21.1, the court must:
(a)inform the respondent of the allegation;
(b)ask the respondent whether the respondent wishes to admit or deny the allegation;
(c)hear any evidence supporting the allegation;
(d)ask the respondent to state the response to the allegations;
(e)hear any evidence of the respondent; and
(f)determine the case.
Evidence and submissions
Count 2
The mother relies upon her Affidavit filed 30 January 2019 in support of her application, but in particular [8].
There is agreement that C and H were due to spend time with the mother on 9 December 2018 pursuant to the orders. On 5 December 2018 the mother received a text message from C advising her that H had a birthday party and they would not be coming to spend time with her.
The text message also referred to B – inviting him to make contact with his father, C and H if he wished to spend time with them.
On the morning of 9 December 2018 the father acknowledges that H was to spend time with the mother but was conflicted by her invitation to “her best friend’s birthday party”. The father was aware that C had communicated H’s commitments to the mother and agrees that he knew C had advised the mother that H would not be coming.
At 9.11 am on 9 December 2018 the father sent his own text message to the mother explaining that H had a birthday party. The father acknowledges that the mother did not reply and accepts that he did not attend with the children.
There is considerable history to the hostility between the parties and in particular the extent to which each of them have invested the children with some level of leverage in terms of the extent to which they may be prepared to see the parties.
The father acknowledges that C should not have become involved with the arrangements for the children to spend time with the mother. His evidence is that he spoke to C and expressed his displeasure at C’s level of involvement in the inter-parental dispute.
The parties acknowledge that the H has not spent time with the mother since 17 October 2018. The orders were made on 17 August 2018. No application was taken by the father to suspend or vary the orders in circumstances where it was obvious to him that H was not spending time with the mother.
The father’s motivation may well be informed by the content of [6(h)(iv)] of his affidavit:-
The mother came over to my car and told me that it was important to follow the orders as she wanted to keep working on the relationship with H. I told the mother that the orders had no value if she expected me to comply with them but not her.
Whilst the sentiment relates to the father’s conduct on an earlier occasion, it is reasonable to find that he was not supportive of H’s relationship with the mother unless B resumed spending time with him.
The unfortunate outcome of what might be summarised as “tit for tat” behaviour of the parties is that the siblings have been split with little or no relationship between them or with the non-live with parent.
The father contends that he has a reasonable excuse for not complying with the order namely, that H had a prior commitment.
The father does not assert that H could not reasonably be made to spend time with the mother albeit she is reluctant to attend without C.
It was put to the mother in cross examination that she recognised H was resistant to spending time with her and that it was only likely to occur if she attended in the company of C.
The mother concedes that C is at an age when he can decide the extent of the relationship that he would wish to have with his mother. It is not suggested that H is at such a stage.
There is some suggestion by the father’s counsel that I could make use of a family report that had been prepared for the earlier interim parenting hearing. No arrangements were made for the family consultant to be called and it was put to counsel that it would not be permissible for me to receive the report unless by consent in circumstances where the report may assist in the wishes of H, but then made recommendations that H would spend regular and extended time with the mother.
In Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 at [25] the following is recorded:-
The obligation to ensure compliance with a parenting order carries with it more than merely an obligation to remain passive. It requires a positive application of parental authority. A parent cannot be said to deny a child medical or dental treatment or an education merely on the basis that such denial complies with a child’s expressed wishes. A parent has an obligation to ensure, so far as possible, compliance with the orders of the Court where those orders reflect the Court’s determination of what is in the best interests of the child.
In Stevenson & Hughes (1993) FLC 92-363 at page 79,813 the Full Court held that:-
[A]n access order [for time with a child] imposes an obligation which goes beyond mere passive non-interference and it imposes upon the party who is obliged to give access a positive obligation to encourage that access.
The father admits that the order has been breached and I find that the evidence does not support a finding that he had a reasonable excuse to do so.
Count 3
On 6 January 2019 the mother alleges that at handover C and H walked towards the mother’s car. C told the mother that they were not planning to stay with her but wanted to wish her a happy New Year.
B was with the mother and was disappointed that he would not be spending time with his brother and sister. In an attempt to alter the decision of C and H, the mother told B to go to his father’s car and to express his feelings.
The mother drove her car closer to the father’s car and there was a discussion between the parties as to how the children might spend time with each other.
The mother alleges that there was disagreement between the parties centred upon previous conduct of B where he put up his “middle finger” in defiance of the father.
The parties exchanged hostile communication and each drove off.
The father responds to the mother’s allegation by disavowing any knowledge of the conversation between the mother, C and H.
The difficulty may well be that the parties have invested too much responsibility in C to intercede on their behalf.
Whilst it is obvious that the children’s interests are best served by resuming and then maintaining a relationship with each of the non-lived with parents, nonetheless, what is under consideration is whether there has been a breach of the order.
I find that the mother did not press the father in respect of H coming into her care on 6 January 2019 and given the mother had effectively driven away following her discussion with C, it is open for the father to have considered that the mother had declined to force the issue and gave her tacit consent to H remaining with the father.
I do not find Count 3 proven.
I make orders as appear at the commencement of these reasons.
I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 29 March 2019
Associate:
Date: 29 March 2019
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