Wainwright and Garner

[2013] FamCA 401

FAMILY COURT OF AUSTRALIA

WAINWRIGHT & GARNER [2013] FamCA 401

FAMILY LAW – ORDERS – Contravention – no reasonable excuse – bond

Family Law Act 1975 (Cth)

APPLICANT: Mr Wainwright

RESPONDENT: Ms Garner

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER: DGC 756 of 2007

DATE DELIVERED: 8 March 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Carter

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

THE RESPONDENT: In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Hardys

Orders

UPON THE COURT FINDING:

(a)That allegations 1, 2, 3, 5 and 6 of the contravention application filed 6 February 2013 are proved and the mother being found to have had no reasonable excuse.

IT IS ORDERED

1. That pursuant to s 70NEC of the Family Law Act 1975 (Cth) (“the Act”), the mother enter into a bond for a period of two years from the date of its execution but no later than 4.00pm on 22 March 2013 such bond, attached to this order, to be executed in the presence of an Australian legal practitioner that she will abide by all orders of the court and attend any further hearing if called upon to do so.

2. That the mother provide to the father as soon as practicable after 4.00pm on 22 March 2013, a copy of the executed bond and the original shall be filed with the court.

3. If the mother fails or refuses to enter into the said bond, at the request of the father, the matter be relisted before the Honourable Justice Cronin on a date by arrangement with the court for further determination of the said contravention application.

4. That the question of the process service fees, father’s travel for the purposes of the failed contact periods as well as the costs incurred by the father in respect of the supervisor are all reserved to the next return date.

5. That all extant applications for final orders are listed to a DIRECTIONS HEARING before the Honourable Justice Cronin at 10 am on 10 April 2013 for the purposes of listing the matter for final hearing.

6. That the parties and if represented, their legal practitioners, attend the first day of hearing.

7. That notwithstanding applications/responses have already been filed:

   (a)by 4 pm on 5 April 2013, the Applicant file and serve on all other parties, an amended application setting out with precision the orders to be sought at trial; and

   (b)by 4 pm on 8 April 2013, the Respondent(s) file and serve on all other parties, an amended response setting out with precision the orders to be sought at trial.

8. For the purposes of the foregoing order, the father shall be the applicant for parenting orders and the mother the respondent.

9. To the extent that the Independent Children’s Lawyer has a firm position as to intended proposed orders, the Independent Children’s Lawyer advise each party of those proposals and on the return date, present to the Court a copy of those orders.

10. That a copy of this order be served upon the Independent Children’s Lawyer.

11. That paragraph 3 of the orders made on 14 December 2012 are suspended and the father shall spend time with the children named in that order from the conclusion of school on Friday to the commencement of school on the Monday morning (save the immediate weekend which shall conclude on the Tuesday) on each of the weekends of the 8 March 2013, 15 March 2013 and 22 March 2013.  Thereafter, paragraph 3.4 of the orders of 14 December 2012 shall resume on the Friday of the weekend of 5 April 2013 and conclude on Monday 8 April 2013 and the collection and delivery shall be at the McDonald’s store in Town A.

12. After the conclusion of the period in the immediate foregoing order, the father shall spend time with the children until further order on each alternate weekend from the conclusion of school on Friday to the commencement of school on the following Monday commencing 19 April 2013.

13. That the father’s application for costs is dismissed.

14. That a copy of these orders be provided by the solicitor for the applicant to Ms D as soon as practicable.

15. That the hearing before the Senior Registrar on 14 March 2013 is vacated.

16. That for the purposes of Division 13A of the said Act, the mother attend a parenting course as nominated by the Independent Children’s Lawyer notwithstanding such attendance has already taken place previously and provide a new certificate to the Independent Children’s Lawyer and the solicitor for the father of such attendance.

17. On 10 April 2013, the mother produce evidence of having enrolled in such course notwithstanding it may not have been completed.

18. That the father’s contravention application filed 4 March 2013 is otherwise withdrawn.

19. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wainwright & Garner has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 756 of 2007

Mr Wainwright

Applicant

And

Ms Garner

Respondent

REASONS FOR JUDGMENT

1. Orders were made by consent in this Court on 14 December 2012, concerning B, who was born in November 2005 and is, therefore, aged 7.  C was born in March 2007 and is, therefore six years of age shortly.  I am now dealing with an application by the father of those children that their mother be dealt with by the Court for contravention of the orders.

2. The applicant father has been represented by counsel and the mother has represented herself.  I have explained the process to the mother and notwithstanding there was some suggestion this morning that she wanted legal representation, she has chosen to proceed.  Indeed, she has had legal advice about the particular application.

3. To each of the six allegations, the mother agreed she had not complied with the order but to each she said that she had a reasonable excuse. Section 70NAC of the Family Law Act 1975 (Cth) (“the Act”) sets out the meaning of “contravened an order.” For the purposes of that section and so far as it is relevant to these proceedings, a person is taken to have contravened an order if and only if, where they are bound by the order, they have intentionally failed to comply with the order or made no reasonable attempt to comply with it.

4. Section 70NAF sets out the standard of proof.  In all but the issue of the most serious of cases the standard of proof is the balance of probabilities.  I raise that because counsel for the applicant has indicated that upon a finding of breach having occurred, she wanted me to treat the breach as in the most serious category.  If I was to do that then I would have to be satisfied beyond reasonable doubt.  Therefore, it is only if I find that this is within the serious category that I need to deal with that.

5. As I pointed out to the mother, s 70NAE of the Act provides some guidance for what is a reasonable excuse for contravening an order. It is not an exhaustive definition, but some of the definitions that give rise to such an excuse are that a person was acting on reasonable grounds to protect the health and safety of another person. In this case the mother’s defence is that the child is strongly resisting attending pursuant to the orders.

6. In this case there are six quite specific allegations.  Before dealing with those it is important that I put them in context. 

7. This case has something of a tragic background, but the starting point is that orders were made on 29 November 2011, before Murphy J.  It is of some significance that on that occasion all parties were represented by counsel and agreement was reached such that orders were made at the request of the parties by the Court and the case was then put into a list because it was desirable that the orders be given an opportunity to be operative.

8. Up until that point in time, it seems that the mother was alleging that the father had abused the children.  It is distinctly noticeable that there is a notation attached to the orders of Murphy J.  I quote from that notation:

   The parties agree that the question of whether there is an unacceptable risk of sexual abuse of the children, based on the information and material available as at this date, shall no longer be pursued.

9. Thereafter there seems to have been contact.  The matter came back to the senior registrar on 14 December 2012, and on that occasion each of the parties was again represented by counsel.  There is a specific order about the time that the applicant father was to spend with the children.  It might be described as a graduated process, but the first of those dates was to have been Saturday, 22 December 2012.  Indeed, on that day, the time was to be supervised by a commercial supervisor.  Ironically, that is the first breach alleged.

10. On 22 December 2012, the father alleged that contact with the two children did not occur under the orders.  His evidence was that he had his lawyers contact the then known lawyer for the mother and was told that the mother was in Queensland.  Indeed, that is exactly where she was, because she conceded that she flew there with the children on 17 December.

11. The mother’s evidence was that everyone knew that she was going to Queensland including her own lawyers, because her father was ill.  Against that evidence there are two important things to take into account.  The first is that only eight days before that, at a time when the mother was represented by counsel, she personally signed the minute of order indicating that she knew what her obligation was;  namely, that the contact was to start on 22 December.

12. The second is that on 20 December 2012 the mother’s solicitor wrote a letter, two paragraphs of which are relevant.  The first one reads:

    Our client is currently in Queensland on holiday.  Attempts by her to bring forward a return air ticket to return to Victoria for this weekend have been unsuccessful.  Our client acknowledges that the spend time arrangements must be commenced with your client.

13. The grammatical error is obvious.  I conclude, therefore, that even if the mother knew that she was going to Queensland, it would seem no one else did.  On that basis, bearing in mind the test that I have outlined and the obligation to prove the issues, there cannot be said to be a reasonable excuse in relation to that allegation.  I find it proved.

14. Only a week later the second allegation arose.  On that occasion it is common ground that C attended, but B did not.  That is not entirely accurate either, but the evidence seems to be that the mother could not get B to go with his father.  That is certainly supported by the supervisor’s evidence.  It was not the supervisor’s function to make B go, but rather that of the mother.  The mother’s evidence was that B was insistent that he was not going.

15. The bottom line in this particular allegation is that the mother said – and B seems to have said this to the supervisor as well – he wanted to go back to the contact centre.  I bear in mind that B is seven years of age.  I am very troubled about the fact that the mother says that she cannot get B to do what she thinks is in his best interest.  On the basis of that evidence I could not find that the mother has a reasonable excuse.  That allegation is proved as well.

16. The third allegation relates to a short time later.  This is 12 January.  On this occasion neither child went and the basis of the mother’s defence is that the children were ill with an ear infection.  Her evidence is that there was a medical certificate provided.  Indeed, a letter from the solicitor purporting to act for the mother indicates that a certificate would be provided.  The father’s evidence was he certainly has not seen it.  It is now 8 March.

17. To the extent that the children were both ill and, therefore, both unable to go on contact, one would have expected that something more than just a certificate would be produced.  It is often seen in this Court that people produce a medical certificate which indicates that children are not fit for work.  If a child has an ear infection that is one thing, but being unable to be cared for in an environment where there is another parent is another thing.  I could not be satisfied, therefore, that the mother had a reasonable excuse in respect of 12 January.

18. A week later, 19 January 2013, the children did not attend again.  This allegation is a little different.  19 January was the day of the local bushfires and the father agreed that he was notified that the mother was unable to get to where she had to go because of the bushfires, but agreed that there would be make up time.  Whether or not that make up time occurred is irrelevant.  I am satisfied on that occasion that the mother did have a reasonable excuse.  The allegation of 19 January is, therefore, dismissed.

19. Further, a week later, 25 January, the mother said that B refused.  This time it was also suggested that there was an illness.  Again, the problem arises about the fact that it was B who was determining whether or not he would go.  The mother’s evidence is that the child becomes distressed, indeed threatens to kill himself and refuses to have anything to do with his father.

20. The difficulty with that evidence is that it is entirely inconsistent with the evidence of the Court appointed expert.  Ms E is a psychologist who was appointed pursuant to the Court order to do an updated family report.  That report was dated 25 October 2012 and whilst that is some weeks before these events occurred, reading this report shows that it is replete with criticisms of the mother that she is making the child make the decisions and in reality, whilst the child is hesitant, if not resistant, it is hardly surprising if the mother is not supportive of it.

21. I have read that report carefully and I am satisfied that it has some significance in these proceedings.  On the basis of that evidence, combined with the mother’s insistence that the child did not want to go, indeed, would only go and see his father if it was at a contact centre, I could not be satisfied that the mother has a reasonable excuse.  I am satisfied, therefore, that that allegation is proved.

22. The sixth and final allegation relates to the 1 February 2013.  On that occasion the father was to collect the children from school.  It transpires that at the time that he went to the school they were not there.  Indeed, I am concerned that the same incident is being repeated today, because when I asked who was collecting the children, bearing in mind they are in a country town, I was told by the mother that a neighbour is.  But it is noticeable that the children are being collected at 2 o’clock, rather than the normal conclusion of school.

23. In any event, on 1 February this year, the mother said that she took the children to school, the school rang just after 9 am and the principal then rang her solicitors, because a counselling appointment had been made and that was to take place on the Saturday that would have otherwise been the point at which the father collected the children.  Exactly what happened on that occasion is hard for me to know.  But to the extent that an appointment was made with a counsellor and that was the only date that could be available, at least the father should have been notified.  It seems to me that this was another attempt by the mother to simply evade her responsibilities.

24. Attached to the order of 14 December 2012 and part of it is the Court’s document that is drawn from s 65DA(2) and s 62B.  That document, in very clear and unequivocal terms, is headed Parenting Orders, Obligations, Consequences and Who Can Help.  That document sets out what the obligations are for each parent.  Under the heading Your Legal Obligations, the following appears:

    You must do everything a parenting orders says.  In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect.  You must also positively encourage your children to comply with the orders.  For example, where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so.  There are agencies in the community that can help you and your family adjust to and comply with the order.

25. It is significant, in this case, that Ms F is highly critical of the mother for not being positive about the father having a role.  It is also significant that the mother’s evidence is that no one seems to believe the fact that this child was at risk of sexual abuse.  That flies in the face of the notation attached to the orders in 2011 which was signed by the mother.  It is also significant, in this case, that notwithstanding there have been problems since the start of December and we are now at the start of March, no application has been brought by the mother to suspend the existing orders.

26. I appreciate that there may have been problems in getting legal representation.  If the mother had read the obligations under the orders in both November 2011 and December 2012, she would have known that it is her obligation, not that of her lawyers.

27. On that basis, I find five out of the six allegations proved.  The question then is which of the categories in division 13A apply in this particular case.  I am told that there has been no allegation of a previous breach that has been proved.  Notwithstanding my reservation about some of the evidence of the mother, I am not prepared to find, in this case, that this was in the serious category.  I am prepared to find, however, that the subdivision relating to the contravention having been proved without a reasonable excuse is, indeed, the correct one.

28. On that basis, the powers of the Court are set out in s 70NEB.  In that section, the Court is empowered to do a number of things.  First of those is the Court may order a parent to attend a post-separation parenting program.  That seems to me essential in this case so that the mother can understand what her obligations are.  She certainly articulates that she has done everything within her power.  I reject that.  I do not think that she is, indeed, encouraging and endeavouring to solve this problem with these children, particularly having regard to their respective ages.

29. A second option for the Court is to make a further parenting orders that compensates a person for the time that they did not spend with a child as a result of the contraventions.  That is a matter that I will address in a moment when the provisions of s 70NBA are addressed.

30. The third option is to allow the proceedings to be adjourned so that further parenting orders can be considered.  I do not think that is a wise move in this case, having regard to the fact that these proceedings were put on hold in November 2011 and have been revisited in December 2012.  It is time for this case to be heard properly and finally.

31. The fourth option for the Court is to require the mother, in this case, to enter into a bond.  That is a very attractive proposition for the Court in this case because what it does is put the position very squarely in the mother’s court.  A condition of such a bond would be that she comply with orders of the Court and bearing in mind the legal obligations that I have mentioned that she has, she would have to think very carefully before she agreed to that or disagreed with it.

32. Another option for the Court is that if the contravention relates to a parenting order which is not being carried out, then the Court can make orders of a monetary nature which effectively overcomes some of the losses incurred, in this case, by the father.  I will deal with that issue in just a moment.  The same applies in respect of costs.

1. In this case, what I propose to do is to do two things immediately.  The first is to order that the mother enter into a bond to comply with orders.  Second is that I propose to order that she attend a post-separation parenting program.  I will hear Ms Carter now on the question of costs.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 March 2013.

Associate: 

Date:  22 April 2013