W & N - [2003] FMCAfam 240

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & N

[2003] FMCAfam 240

FAMILY LAW – Children – contact – orders – contravention – claim of reasonable excuse – children aged 9 years and 8 years.

WORDS & PHRASES – “Made no reasonable attempt to comply”.

Family Law Act 1975, ss.70NC(a), 70NEA, 70NF, 70NG, 70NJ, 112AD

O’Brien (1993) 16 Fam LR 723; FLC 92-396
Stevenson v Hughes (1993) FLC 92-363

Applicant:

R J W

Respondent:

S L N

File No:

PAM 3814 of 2002

Delivered on:

25 March 2003

Delivered at:

Parramatta

Hearing date:

17 March 2003

Judgment of:

Scarlett FM

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

The allegation of contravention by the Respondent between 12 January and 26 January 2002 of Order 6(c) made by the Family Court of Australia at P on 1 May 2001 is dismissed.
The contravention by the Respondent on 8 February 2002 of Order 6(a) made by the Family Court of Australia at P on 1 May 2001 is found proved.
The allegations that the Respondent contravened the said Order 6(a) between 22 February and 24 February 2002 and between 8 March and 10 March 2002 are withdrawn.
The contravention by the Respondent of the said Order between
22 March and 25 March 2002 is found proved.
The contravention by the Respondent of the said Order between
5 April and 7 April 2002 is found proved but the Respondent has established that she has a reasonable excuse for the said contravention.
The allegation that the Respondent contravened the said order 6(c) between 12 April and 20 April 2002 is dismissed.
The allegations that the Respondent contravened the said Order 6(a) on 3 May, 17 May, 31 May, 14 May and 28 June 2002 are dismissed.
The allegation that the Respondent contravened Order 6(b) made by the Family Court of Australia at P on 1 May 201 between 5 July and
13 July 2002 is dismissed.
The allegation that the Respondent contravened the said Order 6(a) between 26 July and 28 July 2002 is dismissed.
The contravention by the Respondent of the said Order 6(a) between
9 August and 11 August 2002 is found proved.
The contravention by the Respondent of the said Order 6(a) between
23 and 25 August 2002 if found proved.
The allegation that the Respondent contravened Order 6(e) made by the Family Court of Australia at P on 1 May 2001 between 30 August and 1 September 2002 is dismissed.
The allegation that the Respondent contravened the said Order 6(a) between 20 September and 22 September 2002 is dismissed.
The contravention by the Respondent of the said Order 6(b) between 27 September and 5 October 2002 is found proved.
The mother has not proved that she has a reasonable excuse for any of the said contraventions referred to in Orders 2, 4, 10 and 11 above.

BY CONSENT

Orders made by the Family Court at P on 1 May are varied as follows:-
(a)Order 6(a) is varied so as to provide that the father’s contact with the said children is to conclude at the commencement of school on Monday extending to the commencement of school Tuesday where the Monday is a public holiday or pupil free day;
(b)Order 9 is vacated provided that the mother has established that the F C Public School can provide appropriate programs for the child B;
(c)Order 10 is vacated.
That the Respondent mother is to authorise the Principal of any school attended by the children B and L to forward to the Applicant father copies of all school reports, bulletins, newsletters, information about school photographs and any other information normally forwarded by the school to the parents of the children attending the said school.
Pursuant to section 70NG and to compensate for contact previously missed, the father is to have contact with the said children B and L, for the whole of the Autumn school holiday period commencing at 9.00am on Saturday 12 April 2003 and concluding at 6.00pm Sunday 27 April 2003.
The Application is removed from the pending cases list.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 3814 of 2002

R J W

Applicant

And

S L N

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the father of two children, a boy called B L W who was born on 3 July 1992 and a girl called L K W who was born on 6 July 1994, to deal with the mother for a number of alleged contraventions of contact orders made by the Family Court on 1 May 2001.
The contraventions are alleged to have taken place over a period of time from 12 January to 5 October 2002. The mother denies the allegations for several different reasons. She has filed a detailed affidavit setting out the reasons why she believes that the application should not succeed. In respect of two allegations, the mother says that contact did in fact take place and the father concedes that this might have been so. Accordingly, those two allegations have been treated as withdrawn and the orders will reflect this fact.
In respect of the other allegations the mother's case is:
a)The child L went on contact but the child B refused to go.
b)On some occasions the father did not attend for contact.
c)On one occasion the contravention alleged was not a contact weekend according to the orders.
d)On once occasion contact changeover did not take place because she says that the father assaulted her.
I note that the application refers to allegations of breaches of orders (3) and (4) but no particulars are provided of any specific breach. I also note the father's affidavit refers to certain acts or omissions by the mother without reference to any particular breach of an order and I am not therefore in a position to rule on whether any contravention has occurred in respect of these generalised complaints.
Part C of the form of application requires the applicant to state the facts alleged to constitute contravention of the orders including the date, time and place of each act or omission. The applicant has provided an annexure B which sets out a number of allegations referring to breaches of orders (6)(a), (b) and (c) on or between various dates.

I have taken those to be the allegations which the mother is required to meet.
The orders sought to be enforced are those orders made by a Judge of the Family Court at P on 1 May 2001. Those orders provide that the two children are to reside with the mother and the father is to have contact on alternate weekends and during the school holidays. There are specific provisions relating to contact changeover which provide that the father shall collect the children outside the school at the commencement of contact where contact takes place after school, and for all other occasions the father shall collect the children at the commencement of contact and return the children at the end of contact to the mother at her residence. The matter has been complicated somewhat by the existence of an apprehended violence order which places restrictions on the father's entry into the school premises.
The father's application points out that there are contraventions alleged on specific dates relating to the four occasions of school holiday contact, on one occasion a specific weekend contact relating to Father's Day and on the balance of the occasions, breaches of weekend contact. They, go from 12 January 2002 through to 5 October. The date actually referred to is 5 September but it is quite clear from the text that that was a typing error and the matter proceeded on the basis that it was in fact 5 October.
The father gave evidence by affidavit and opens with a generalised statement that he has not had contact in accordance with the orders, and sets out reasons why he believes in a generalised form that the respondent has contravened the orders. He refers to the fact that the child B attends the ED unit at school which requires him to be picked up early. The child L travels by bus to the father's residence which is along the normal bus route to the mother's residence. There is other material mentioned which is not of specific relevance to the contraventions which are sought to be proved but needless to say, they are matters of some concern to the father.
It is fair to say at this stage that the child B, and there is evidence of this fact in the form of an exhibit, has a long standing history of behavioural and emotional difficulties delayed learning and according to the evidence which is exhibit 1, he was attending what is called the ED unit at N E Public School. There is certainly evidence from both the father and the mother which would indicate that, to use a slang term, at times B can be a bit of a handful. Nevertheless, despite these difficulties each parent has a commitment to B. The father is particularly keen that there should be regular contact with B just as there is contact with L.
The mother, as I said, has made a number of detailed replies in her affidavit sworn 15 October. She has spent some time going through and replying to various matters contained in the father's affidavit, paragraph by paragraph. The parties in fact gave oral evidence on the last occasion.
There are two instances where the mother deposed in her affidavit that contact had in fact taken place, which I have previously referred to, and they relate to the weekend 22 to 24 February (Friday to Sunday) and the weekend from 8 to 10 March 2002. The father quite appropriately made concessions and those matters were treated as withdrawn and I will be making a formal order withdrawing those allegations.
The situation generally is that the parties have each given evidence and whilst there are different interpretations, on many occasions there is common ground between them as to what the facts are. The matters in issue between the parties are what interpretation the Court should place on the particular facts. The mother has indicated that there have been occasions where the child L has gone on contact with her father but the child B refused to go. On some occasions, she said that the child L has refused to attend, although the refusal by one child has been more often the case of B rather than by L.
What I should point out at this stage is that where it is conceded that contact should have taken place but did not, what is sought to be shown is not that there was not breach of the order (because there was), but that the person has a reasonable excuse.
I will state a couple of principles of the law at this stage which are important to be taken into account in dealing with the specific allegations. A person who is bound by an order is taken to have contravened that order if and only if he or she has intentionally failed to comply with the order or made no reasonable attempt to comply with the order. That is set out in section 70NC(a) of the Family Law Act. If the person has a reasonable excuse, he or she bears the onus of proving that excuse. That is set out in section 70NF(1)(ba). The standard of proof is proof on the balance of probabilities.
The Full Court of the Family Court has expressed strong views about the responsibility of the parent with whom the child resides to encourage contact. Parents have positive obligations in relation to contact, they must generally comply with the order by encouraging access, as contact used to be described. Token compliance or passive resistance is not sufficient. The authority for that is the decision in O'Brien (1993) 16 Fam LR 723, FLC 92-396. In the decision in Stevenson v Hughes (1993) FLC 92-363, the Full Court quoted with approval these passages from the judgment of Moore J who was the Judge at first instance:
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. It is not a sufficient discharge of a 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.
I will deal with the specific allegations bearing in mind those provisions set out by the Family Law Act and the guidance given to me by the Full Court of the Family Court in the matters of O'Brien and also Stevenson v Hughes.
I turn first of all to the allegation of a breach relating to contact in school holidays from 12 to 26 January 2002. On that occasion the evidence before me is the child L did have contact with the father, the child B refused to go although B had, on the evidence before me, a change of heart during that period and in fact telephoned the applicant and asked if he could visit him. That in fact took place. The evidence is the father collected the child B, that there was some contact and then he returned both children on 26 January 2002. Of course it can well be argued that that was an imperfect period of contact, not contact strictly in accordance with the orders of the Family Court on 1 May. It often happens where there is contact provided for a period that for some reason contact does not commence at the time when it should and this Court has often had the opportunity of pointing out to parents that if contact does not start when it should it is no excuse for the parent to say, "Oh well, there wasn't contact over that period of time and therefore it couldn't have happened at all" because if contact can take place, albeit late, that would certainly be regarded by the Court as a significant factor.
In this case I am of a view that whilst contact with L commenced as it should, contact with B started late but did take place, I am of the view that on balance I would see that as a reasonable attempt by the respondent to comply with the order pursuant to section 70NC(a) of the Act and accordingly I am not satisfied that that allegation has been made out. Accordingly, that one will be dismissed.
I look at the allegation of the contravention by the respondent on the weekend commencing 8 February. What the mother says there is L went for contact but B refused to go. The evidence before me is that the child B just did not go on contact with the father that entire weekend. It is quite clear, as set out, that there is an obligation placed on the parent with whom the children reside to make a positive effort to encourage contact, not just stand there and say "Well, he refuses to go". That is specifically covered by the Court in Stevenson v Hughes. So the evidence before me indicates that contact did not take place in respect of the child B. I am not satisfied that a reasonable excuse has been made out, although I bear in mind the fact that B is not the easiest child to deal with and both parents have made it quite clear to me that at times he can be extremely difficult. But I am not satisfied that it has been shown that the mother made the efforts required by the Full Court. Accordingly, I find that contravention proved.
I look at the allegation of contravention between 22 and 25 March. This again is one where the child L went on contact, the child B refused to go. For the same reasons as I previously set out, I am not satisfied that a reasonable excuse has been established and I find that allegation proved.
I turn now to the allegation of 5 April where the mother said the child L went on contact and the child B refused to go. There is a specific reference in the mother's evidence to an allegation of assault, and I refer to this allegation in the general overview of the mother's defence to these proceedings. The mother has provided a statement she made to the police relating to this allegation of assault and in that she describes an altercation with the father; the father walked over to the car, she said that he said, "You've been asked not to come here,

Ms N". The mother says that the father had his hands on top of the car door as he said this.
He then pushed the door closed causing the glass in the door to hit me in the write side of the face. My hand was on the door handle at the time and somehow my right ring finger was scratched when the door closed on me. I looked over to the schoolyard and could see that B was upset.
The mother said that she went on to say to the school principal that the applicant had just slammed the car door on her head and that the child B became distressed and called out to the father, "Don't touch my mother. I'm going to kill him" and at that stage one of the teachers pointed out that the child had a butter knife. There was some discussion between the father and the school principal and the police arrived. The mother made an allegation of some injuries.
I am satisfied from the evidence before me that on the balance of probability there were supervening circumstances which prevented contact changeover. I am satisfied therefore that a reasonable excuse has been made out.
The next matter that needs to be looked at is a breach of school holiday contact between 12 and 20 April. That has been again replied to by the mother. It is one where the mother says the father did not attend at the appropriate time to collect the child B. I am of the view that parties seeking to enforce contact orders must show that they have in fact made the effort to commence the contact at the appropriate time. There is no evidence in rebuttal of this and I am satisfied therefore that that allegation has not been proved and it be dismissed.
There are a number of allegations relating to failure for weekend contact between 3 May and 28 June; 3, 17, 31 May, 14, 28 June. There is similar evidence there that the father for one reason or another did not attend to commence the contact. I am satisfied that although he did not turn up to commence the contact with B the child L did in fact go on contact with the father as she had separate arrangements. I am of the view there has been shown to be a reasonable compliance with the order and that any non-contact that occurred would appear on the balance of probability to be related to the father not attending. I am not satisfied therefore that those allegations are made out and they will be dismissed.
There is an allegation relating to order (6)(b) between 5 and 13 July 2002, which is school holiday contact. Again, the evidence by the mother is the father did not attend to collect the child B but the child L went on contact in the normal way. I am of the view therefore that that allegation has not been made out and will be dismissed.
There is a similar allegation in respect of weekend contact which is order (6)(a), the weekend 26 to 28 July. There is similar evidence that the father did not attend to collect the child B but the child L had contact. I am satisfied that there is a reasonable compliance with the order. That allegation will be dismissed.
There is an allegation that contact did not take place the weekend

9 to 11 August on which the child B refused to go, although the evidence appears to be that the father sought to have contact. I am satisfied that there is a breach. I am not satisfied a reasonable excuse has been made out and that allegation will be found proved.
There is a further allegation in respect of 23 to 25 August. On that occasion the child L is alleged to have refused to go. There is no evidence before me as to what effort the mother had taken to persuade the child L to go, but there is evidence that she rang the father and both children said they did not want to go. I am not satisfied a reasonable excuse has been made out and I find that allegation proved.
There is an allegation that contact did not take place on the weekend

30 August to 1 September. The evidence is again that the father did not attend to collect the child B but the child L went on contact. I am not satisfied on the balance of probabilities that a contravention has been shown. That application will be dismissed.
There is a similar allegation in respect of the weekend 20 to

22 September. The evidence is that that was not a contact weekend. It is alleged the father did not attempt to contact the children. I am not satisfied that that has been proved. That allegation will be dismissed.

There is an allegation of contravention of school holiday contact between 27 September and 5 October 2002. On that occasion the child L is said to have refused to go on contact or the father did not turn up to collect B. There is no evidence as to the efforts made by the mother to persuade the child L to go. I am not satisfied that a reasonable excuse has been made out. That allegation is found proved.
I will read out onto the record the formal orders and formal findings that I have made. There are fifteen of them.
I propose to order a transcript of my reasons for the decision.
What I propose to do and what in fact I am required to do by the law, is to look at what orders should be made as a result of the findings that I have made in respect of those four particular contraventions.
The Family Law Act says that one of the first things I go to look at is whether any Court has found that Ms N has previously contravened the orders made on 1 May 2001. There has been no such finding.
What that means is that I deal with matters under the provisions of section 70NF of the Family Law Act which is what the Act calls Stage Two of the Parenting Compliance Regime. I would not do that if I found circumstances in respect of any of those four matters that show that Ms N had behaved in a way that showed a serious disregard for her obligations under the primary order. That is a very serious finding indeed and that is one that is very rarely made. In the circumstances, the evidence would not indicate that I should find a serious disregard for which to impose a more serious range of penalties. What this means is that I propose to deal with this matter under as I said what is called Stage Two of the Parenting Compliance Regime.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S.Polley

Date: 1 July 2003