Watkins and Watkins
[2014] FCCA 2104
•24 September 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WATKINS & WATKINS | [2014] FCCA 2104 |
| Catchwords: FAMILY LAW – Children – contravention – consent to vary the order before breach – order open to two interpretations – reasonable excuse, respondent ought reasonably be excused. |
| Legislation: Family Law Act 1975, s.70NAE |
| Hale & Hale [2011] FMCAfam 1107 |
| Applicant: | MR WATKINS |
| Respondent: | MS WATKINS |
| File Number: | BRC 8468 of 2009 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 17 July 2014 |
| Date of Last Submission: | 17 July 2014 |
| Delivered at: | Brisbane |
| Delivered on: | 24 September 2014 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Solicitors for the Respondent: | In person |
ORDERS
That the amended application for contravention filed 12 June 2014 be dismissed.
That all changeovers in relation to the child X born (omitted) 2009 occur with the father to collect the child from the (omitted) State School at the beginning of his time and the mother to collect the child from Gloria Jeans, (omitted) at the conclusion of such time.
IT IS NOTED that publication of this judgment under the pseudonym Watkins & Watkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 8468 of 2009
| MR WATKINS |
Applicant
And
| MS WATKINS |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application made by the father for contravention in relation to an order that was made by the Court on 30 October 2013.
Of the contraventions that were proceeded with, the mother admitted each of them but indicated that she had a reasonable excuse.
The Material
The father relied upon the following material:
a)The amended application for contravention filed 12 June 2014; and
b)The affidavit of Mr Watkins filed 12 June 2014.
The mother relied upon the following material:
a)The affidavit of Ms Watkins filed by leave on 17 July 2014.
The Law
The law in relation to contraventions has been carefully described by Federal Magistrate Brown, as he then was, in Hale & Hale [2011] FMCAfam 1107:
“The legal framework applicable
[39] Division 13A is the part of the Family Law Act 1975 which deals with the consequences of a failure to comply with orders, and other obligations, that affect children. Pursuant to section 70NAA(1), the division empowers the court to make orders “to enforce compliance with orders [made] under this act affecting children.” This power includes the authority to vary any order earlier made. These powers are contained in Subdivision B of Div 13A.
[40] The expression “order under this Act affecting children” is defined in section 4. It includes a parenting order. There is no controversy, in this case, that the orders of 21 August 2009 and the amending order of 14 December 2009 are parenting orders.
[41] Pursuant to section 70NAC, a person is taken to have contravened such an order “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; or
(b) otherwise — he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
[42] The expression “reasonable excuse for contravening” an order affecting children is defined in section 70NAE but are not limited to the circumstances delineated in that section. They include the following:
• The person bound by the order in question did not understand the obligations imposed and the court is satisfied that he or she ought to be excused in respect of the contravention [section 70NAE(2)];
• A person contravening an order with whom a child is to spend time with another parent believed on reasonable grounds that not allowing the child in question to spend time with the other person was necessary to protect the health or safety of some other person concerned, including the child affected by the order; and
• The period during which the contravention occurred was not longer than was necessary to so protect the health or safety of such person [section 70NAE(5)].
[43] The prerequisite standard of proof to be applied in determining matters arising under Div 13A, other than matters involving incidents which are characterised as being more serious contraventions is proof on the balance of probabilities [section 70NAF].
[44] Accordingly, the onus is on Mr Hale to establish on the balance of probabilities that Ms Hale has breached the parenting orders in question. If he is successful in discharging this onus, the onus then shifts to Ms Hale to establish on the balance of probabilities that she has a reasonable excuse for not complying with the applicable orders.
[45] In Jets & Maker[10]O’Ryan J said as follows in respect of the standard of proof:
[10] Jets & Maker [2010] FamCAFC 55 at [83] – [85]
The onus of proof rests on the applicant to prove that the respondent contravened an order affecting children. The standard of proof is on the balance of probabilities having regard to the gravity of the allegation. The breach must be shown to be intentional but it does not require proof of contumacious behaviour.
…
The respondent must prove that he or she had a reasonable excuse for the contravention. Again, the onus is on the respondent and the standard of proof is on the balance of probabilities. The Act provides a definition of what amounts to reasonable excuse, however, the definition is not exhaustive.
[46] The expression “reasonable excuse” is not defined within the Family Law Act 1975 other than in section 70NAE. It is important to note that the definition provided in the section is not confined to the specific incidents which exculpate a contravention of children’s order set out in subs (2), (4), (5), (6) and (7) of the section.
[47] The words “reasonable excuse” must therefore be given their ordinary English meaning. By use of the word “reasonable”, the legislation requires that the explanation given by a person, for contravening an order affecting children, must be reasonable when judged by reference to an objective standard. In Kelly & Kobelnek[11] Hannon J expressed the test as follows:
[11] Kelly & Kobelnek [1998] FamCA 296 at p 3-4
In my opinion the respondent, in order to exculpate herself from the contravention must establish that she has or had a reasonable excuse according to an objective test namely, whether a reasonable person in the position of the mother would consider on reasonable grounds that she had a reasonable excuse for the contravention.
[48] In Taikato & R[12] the High Court discussed a criminal statute, which contained the phrase “reasonable excuse”. The statute concerned rendered it an offence for a person to possess, in a public place, any instrument capable of discharging an irritating substance. It was a defence, under the statute, if the person concerned had a “reasonable excuse” for possessing the item in question.
[12] Taikato & R (1996) 186 CLR 454
[49] The appellant in the case was charged and convicted of possessing an aerosol canister of formaldehyde. It was her defence that her possession of the canister was excused because she carried it for self defence. In this context the majority of the High Court[13] considered the expression “reasonable excuse”. They said as follows:
[13] Brennan CJ, Toohey, McHugh and Gummow JJ
The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception.”[14]
[14] Ibid at p 464 (footnotes excluded)
[50] The High Court pointed out the desirability of the criminal law being uniform in its application to circumstances which are not materially different. In this context, defences founded upon a reasonable excuse pose some difficulty because they may depend upon a court making a value judgment rather than applying a uniform rule. This difficulty arises in the present case given the non-exhaustive definition of “reasonable excuse” in section 70NAE(1).
[51] In this context, the High Court said as follows:
… the reality is that when legislatures enact defences such as “reasonable excuse” they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence.”[15]
[15] Ibig (sic) at p 466
[52] Contravention proceedings have been described as quasi criminal in nature.[16] They are not an inquiry into the best interests of any child or children affected by the order alleged to have been contravened. Before contravention proceedings are started, the court has previously determined the outcome which will best enable a particular child or children to be parented.
[16] See Davis & Davis (1976) FLC 90-050 at 75,207 per Asche J
[53] In addition, serious consequences may follow for a person if a contravention is found to have occurred, without reasonable excuse or otherwise. Such a person may be required to enter into a bond. Given these circumstances, the procedural requirements pertaining to a contravention proceeding should be strictly complied with.[17]
[17] See Sahari & Sahari (1976) FLC90-086
[54] The procedural requirements attaching to contravention applications are set out in r 25B.04 of the Federal Magistrates court Rules (sic). At the hearing of any such application, the court must:
(a) inform the respondent of the allegation; and
(b) ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c) hear any evidence supporting the allegation; and
(d) ask the respondent to state the response to the allegation; and
(e) hear any evidence for the respondent; and
(f) determine the proceeding.
[55] In Jets & Maker, which concerned an appeal from a decision of a Federal Magistrate arising from contravention proceedings, O’Ryan J reiterated the need for strict compliance with these requirements and revisited earlier authorities of the Full court which stipulated that contravention proceedings were analogous to a summary criminal trial.[18]
[18] See Jets & Maker (above) at [89]
[56] In particular, O’Ryan J made reference to Attreed & Attreed[19] in which it was said as follows:
[19] See Attreed & Attreed (1980) FLC 90-907 at 75,732
Contempt proceedings must be conducted in a formal manner as in the case of a person charged summarily with an offence and with due observance to all the procedures and safeguards applicable to such charges. The concept of the Family court as a “helping court” is admirable but it cannot in any way impinge on the court’s duty to require that the applicant make a specific charge of non-compliance upon which the case must stand or fall … ”
[57] One such safeguard is, if there is any ambiguity arising from the order or orders, which give rise to the contravention application in question, such ambiguity should be resolved in favour of the person facing the contravention. It being fundamental that he or she can only be found responsible for an act or omission if he or she knows precisely what is required of him or her pursuant to the applicable order.
[58] The eschewal by the Full court of its role as a “helping court” does not sit comfortably with more recent authority, particularly what was said by the Full court in Stevenson v Hughes[20]. In that case, Fogarty J indicated that it might be necessary to reappraise the “strict criminal approach” for contravention proceedings, given changing community attitudes, some of which were reflected in changes to the applicable legislation.
[20] Stevenson v Hughes (1993) FLC 92,393
[59] Stevenson v Hughes was a “contact” case, in which it was alleged that a parent had been passively resistant to a child spending time with the other parent concerned. In the case, Fogarty J endorsed the following comments which had been made at the initial hearing of the contravention application in question.
It is not a sufficient discharge of 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. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.”
[60] In this context, Fogarty J alluded to the situation prevailing in many parenting cases, which have been on foot for lengthy periods of time and which involve significant levels of conflict. His Honour said that it was important that custodial parents “appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance.”[21]
[21] Ibid at 79,815 – 816
[61] These comments are apposite, in the present case, because counsel for the father, Ms Lewis prefaced her closing submissions by saying that her client had come to this court “for help”. In particular, Ms Lewis drew my attention to comments made by me, in the reasons for judgment, which lead to the orders of 21 August 2009. I said as follows:
A more logical solution to the problem is that Ms Hale should direct the children to get on the plane and brook no opposition from them. Although Ms Hale may believe my attitude is harsh, I expect her to be able to win any battle of wills with a ten year old child. That she should direct the children to spend time with their father is an integral part of her responsibilities as a parent.”[22]
[22] See Hale & Hale (No2) [2009] FMCAfam 873 at para 535
[62] No doubt Mr Hale also took notice of other comments, which I had made, critical of the mother for not involving him in the process of decision making concerning the children’s education and health. In this context, he again seeks the help of the court to obtain information about the children, from whose lives he feels excluded.
[63] The current Div 13A was inserted into the Family Law Act 1975 as part of the package of reforms contained in the Family Law Amendment Bill (Shared Parental Responsibility) Act 2006. The explanatory memorandum to the Bill indicated that the Act was being amended:
To strengthen the existing enforcement regime in the Act. Breaches of court orders are a major source of conflict and distress to all parties involved. The amendments provide the courts with a greater range of options to better enforce parenting orders. This is necessary to ensure that one of the main objects of Part VII of the Act is fulfilled and that children are able to have a meaningful relationship with both parents. In addition, the amendments repeal the existing Div 13A of Part VII of the Act and replace that Division with clearer and more accessible provisions that will make the whole Division easier to understand.
[64] The greater range of options, available to the court in respect of contravention applications, are fourfold:
• Contravention alleged but not established — Stage 1
• Vary the order concerned [section 70NBA(1)(b)(i)];
• Award costs against the unsuccessful applicant concerned [section 70NCB];
• This latter power is presumably to deter unmeritorious would be enforcers. However, the court is specifically conferred with the power to vary a children’s O (subject to best interest considerations) in recognition of its role as a “helping” court.
• Contravention established but reasonable excuse made out — Stage 2
• The court again may vary the order concerned;
• Make an order for compensatory time;
• Award costs against the applicant concerned.
• Contravention established without reasonable excuse — less serious contraventions — Stage 3
In these circumstances, the court may:
• Order the defaulting parent to attend a post-separation parenting program;
• Make a compensatory parenting order compensating a parent for time lost with any child concerned;
• Adjourn the proceedings to allow either party to apply to the court to vary the orders contravened;
• Order the defaulting parent to enter a bond;
• Make an order for costs against the defaulting parent;
• Make an order compensating the contravened parent for any expenses incurred as a result of the contravention in question — eg lost fares etc;
• An order for costs.
• Contravention without reasonable excuse — more serious contraventions.[23] — Stage 4
[23] Contravention applications are deemed to be more serious if the party concerned has previously been found to have contravened a parenting order.
• In these circumstances the court may:
• Impose a community service order or bond;
• Make an order for compensatory time;
• Make an order for compensation;
• Award costs;
• Fine or imprison the contravening parent;
• It should be noted however that when the court is considering either a fine or imprisonment, the burden of proof required shifts to beyond reasonable doubt.
[65] It should be noted that pursuant to s 70NBA the court is empowered, when dealing with any contravention proceedings, to vary the existing parenting order concerned. This power exists even if the contravention is unproven or it is proven but reasonable excuse is found to exist.
[66] The concept of “equal shared parental responsibility” is one which is also created by the shared parenting amendments. The rationale of these amendments was said to be in recognition of the need for separated parents to have a “cooperative approach to parenting”. The relevant amendments were said to be intended to:
“Promote the object of ensuring that children have a right to have a meaningful relationship with both their parents and that parents continue to share responsibility for their children after they separate.”[24]
[24] See Explanatory Memorandum at Schedule 1
[67] In both the earlier reasons for judgment and these current reasons, I have set out the provisions of the Family Law Act 1975 dealing with equal shared parental responsibility. The relevant sections are section 65DAC; section 65DAE and the definition of major long term issue in section 4. The applicable explanatory memorandum says as follows about these provisions:
“These sections provide that, where parents are exercising shared parental responsibility in accordance with the terms of a parenting order that involves making a decision about a major long-term issue in relation to a child, both parents are required to discuss any proposed decision with each other and reach agreement about the decision. However, where a child is spending time with a person pursuant to the terms of a parenting order, that person is not required to consult on decisions about issues that arise during that time that are not major long- term issues. Of course, parents may choose to consult on these issues. The clarification of what issues are major long-term issues is intended to reduce disputes about what falls into this category and to make it clear that day to day decisions can be made by the parent who has care of the child, thus reducing litigation about those issues.”[25]
[25] Ibid at paragraph 27
[68] So far as the terms “child’s education” and “child’s health” are concerned, the explanatory memorandum indicates that the former is intended to capture issues “such as which school a child attends” and the latter was intended “not [to] capture a child’s short term illnesses, such as a cold, but may capture issues such as immunisation, which may affect the child’s long term health or when the child has ongoing medical needs.”[26]
[26] Ibid at paragraph 24
[69] In regards to issues pertaining to [X]’s education, there is evidence of the parties consulting in respect of the issue, as delineated in the Explanatory Memorandum with the consultation concerned being initiated by Ms Hale. On 12 October 2010, she emailed Mr Hale and indicated that [X] was considering going to another school in the next year “in order to achieve her academic goal”.[27]
[27] See exhibit 1
[70] A few weeks later, Ms Hale again emailed Mr Hale to indicate that [X] had been accepted into a private school from the commencement of the academic year in 2011. Ms Hale directed to the school’s internet site and invited him to contact the college concerned. She asked if he had any objections to [X] attending the school in question.[28]
[28] See exhibit 2
[71] The Full Court has indicated that it is possible for a parent to be found to have breached an order which provides for joint parental responsibility for issues pertaining to the long term care, welfare and development of a child.[29] However the Full Court did not provide definitive guidance in respect of the issue.
[29] See Vlug v Poulos (1997) FLC 92-778 at 85,596 - 597
[72] It found that a joint long term responsibility order could be contravened in circumstances where a person in whose favour such an order had been made was “hindered or prevented from carrying out his or her joint responsibility under the order” by any other person, including the other parent upon whom parental responsibility had been conferred.
[73] Section 65DAC requires two parents who share parental responsibility to make decisions pertaining to major long term issues in relation to their child or children jointly. Any such order is taken to require the parents concerned to consult with one another and make a genuine effort to come to a joint decision about the issue concerned.
[74] The Explanatory Memorandum says this about the provision:
“New section 65DAC provides a rule that where parental responsibility is to be shared in relation to a major long-term issue under a parenting order, this means that decisions should be made jointly. This clarifies for parents or others who may have parental responsibility, what exercising shared parental responsibility actually involves. This will ensure that both parents have a meaningful involvement in the child's life. This does not only apply in situations where parents are sharing exactly equal responsibility. In all cases where there is some sharing of responsibility then consultation, then discussion about major long-term issues is required for those parts of responsibility that are shared.
…
New subsection 65DAC(3) specifies that in the context of making decisions jointly, consultation between those persons and making a genuine effort to come to a decision is required. This will allow a party to seek to enforce a parenting order in circumstances where there has been no genuine attempt to consult.”[30]
[30] Ibid at paragraphs 196 and 198
[75] The intention of 65DAE, which stipulates that parents sharing parental responsibility are not obliged to consult in respect of issues that are not major long-term ones, is to make it clear that, while a child is with a parent, that parent takes responsibility for the management and care of the child concerned. It being hoped that this provision will reduce “litigation about minor details”.
[76] Controversy may potentially arise between parents as to whether consultations between them are genuine and whether the issue at the heart of any dispute is indeed a major long-term one. However, the rationale of the provisions is to give meaning to the sharing of decisions about long-term issues and encourage a cooperative approach to parenting.[31]
[31] Ibid at paragraph 200
[77] Given Mr Hale’s obvious interest and concern about the lives and personal development of [X], [Z] and [Y] and the fact that he has hitherto discharged his financial responsibility towards the children [section 60CC(3)(i) & section 60CC(4)], it does not seem unreasonable that there be an order for shared parental responsibility in this case. In these circumstances, it would appear contrary to the rationale of the shared parenting legislation that one parent should be excluded from major decision making in respect of children whom he both loved and maintained.
[78] However, the reality of the parties’ situation is that their relationship with one another, as parents, is fraught with all manner of difficulties, which stem from the difficult circumstances of their separation, which in turn precipitated the mother’s application to relocate the children to Adelaide.
[79] For all these reasons, the case is a difficult and complex one. The legislative provisions, designed to facilitate cooperative parenting, are complex. There is some tension between the applicable jurisprudential considerations which pertain to the hearing of contravention applications.
[80] The case encapsulates some of the tensions arising from cases such as Attreed and Jets & Maker on the one hand and Stevenson & Hughes on the other. Ms Hale is entitled to be dealt with in a manner which is procedurally fair, given the possibility that an outcome of the proceedings, adverse to her, may lead to her being criticised and possibly sanctioned. As such, the court should not act upon uncertain charges or imprecise proofs. The benefit of any doubt or uncertainty in respect of any of the charges or allegations arising should be accorded to her.
[81] On the other hand, the contravention application has not arisen in a vacuum. It comes following a long history between the parties of parental dysfunction and unhappiness. There is an obvious lack of tolerance between them and impaired levels of communication.
[82] Against such a background, one parent makes a plea for help to the court and urges it to do what it can to get the other parent to abide by both the spirit of the orders in question and the ethos of the applicable legislation, which promotes an ideal of cooperative parenting. The steel in the plea for help arises from the fact that it comes in the form of a contravention application.
[83] That is not the end of the complexity. As with many contravention applications, some of the actions of the respondent, alleged to constitute contravention, seem of little moment and not to be harmful to the best interests of the children concerned – lack of consultation about [X]’s braces; the unanswered email of 4 April 2011; and the question of the mother’s counselling, given the fact that the father did not advocate in the first place and thought it would be useless – by way of example.
[84] Such situations may lead to the conclusion that there is some pettiness in the complaints made and “a perception from the evidence that the interests of the court in obedience to its orders is being invoked in support of a power struggle between the parents [which leads to] the frustrating prospect of lending the support of the law to a poor motive …”[32]
[32] See Oxley & Inglis [2007] FamCA 1606 per Warnick J at [2]
[85] However, as Warnick J pointed out such a matrix can throw up diverse consequences. One being that:
“… insufficient understanding is given to the dilemma for a party with the benefit of an order which has been breached, especially repeatedly, and even if only in a way that does not harm the child’s interests. If the court has made an order, whether by consent or not, one rightly assumes it had purpose and gravity. “Small” but repeated breaches can constitute a real detriment to the beneficiary of an order. Yet a contravention application can seem pernickety.”[33]
[86] The defence of reasonable excuse, which Ms Hale invokes, requires the court to prescribe “the relevant rule of conduct after the fact of its occurrence”. Necessarily, this will lead the court to having to examine individually the circumstances of each alleged contravention. This process does not lend itself to a holistic examination of the conduct of each of the parties over the very many years of their unhappy and largely dysfunctional relationship.
[87] As previously indicated, these proceedings have taken some time to reach finalisation. Initially I had hoped that, if arrangements for the twins to go on holiday to [D] were put back on track Mr Hale might reconsider the utility of the contravention application. Between the initial hearing of the matter and the date allocated for final hearing, two school holidays fell, during each of which the twins attended in [D].
[88] In addition, regrettably the time initially allocated for the hearing of the contravention application proved to be inadequate. In these circumstances, the matter proceeded part-heard. Again, during the period of the adjournment, the twins went to [D] for the mid-year school holiday. Notwithstanding these circumstances, Mr Hale has continued with the contravention application, as he is entitled to do.
[89] Relations between Mr Hale and [X] broke down in 2007. After the hearing of 2009, notwithstanding some earlier difficulties, the twins regularly visited their father. As I remarked in the earlier reasons, it may be simplistic to approach a case involving a child of comparatively mature years, who ostensibly refuses to go on “contact” as being one concerned with a bad or alienating parent and a good and innocent parent, given that a third person, namely the child concerned, might also have motivations and reasons of his/her own in respect of the issue.
[90] In this context, regardless of the ultimate outcome of the contravention proceedings, I am concerned that their prolongation must inevitably have implications for the nature of the relationship Mr Hale has with all three children. These consequences have the potential to reverberate for all concerned with possibly deleterious consequences.
[91] My function is to deal with the specific incidents of contravention which have been alleged by Mr Hale and what are said to be the exonerating circumstances surrounding those propounded by Ms Hale. It is not my role to allocate fault or blame for the current disastrous relationship between the parties or to determine what factors have been at play with the children.”
[33] Ibid at [3]
The First Contravention
The father alleges that Order 7(a)(i) of the Order of 30 October 2013 was breached. That Order provides:
“[7] That the child spend time with the applicant father at all times as agreed in writing between the parties and failing agreement as follows:
(a) In a two (2) week cycle as follows:-
(i) In week 1 from 2pm Wednesday until 2pm Friday and each alternate week thereafter; …”
It is alleged that on 11 December 2013, at 2.00pm, the mother refused to hand the child over to the father as per the Court order. The mother admits that she did not hand the child to the father but her evidence was that she had a reasonable excuse.
The mother annexes, in annexure “C” to her affidavit, a message from the father that is timed 1.19pm on 11 December 2013 that say:
“X ready to talk to u now”
Then at 1.21pm on 11 December 2013, a further message from the father says:
“As per your last message I will pick X up this Friday at 2pm the 13th December 2013”
The father is not able to succeed in a contravention application when he has consented to varying the order prior to 2.00pm on 11 December 2013.
The parties are at liberty at any time to vary Court orders by consent. The text message referred to above has the father consenting to picking up X at “2pm the 13th December 2013”. Therefore, I will dismiss that application.
The Second Contravention
The father did not proceed with the second count in the amended contravention application.
The Third Contravention
The third count alleges a breach of order 5(a) of the Orders of 30 October 2013. Order 5(a) provides:
“[5] That the time that the child will spend with parties for holidays shall be as follows:-
(a) Pending the child commencing her prep year at school, each parent shall be at liberty to spend two periods of six (6) days with the child each calendar year on the following terms:
(i) In the event that a party wishes to spend a holiday period with the child then they will give the other party twenty-eight (28) days notice in writing of their intention to spend the holiday time with the child;
(ii) Such holiday time shall not occur on either 24, 25 or 26 December in each year or on 6, 7, or 8 January each year
(iii) The time that the child spends with the parties pursuant to Orders 4 and 7 (a), 7 (b) and 7 (c) shall be suspended during the holiday period.”
The statement of the alleged contravention states:
“The Court Order stipulates that each parent has 2 periods of 6 day holiday with the child each year. The mother requested the 4th – 13th December 2013, clearly a 9 day holiday period. This was outside the court order. The father advised the mother that he objected to this holiday time period, but the mother failed to hand the child over on the 11th December 2013, as per Court Order.”
In my view, the same excuse applies to this matter, as to the preceding one. The mother obtained consent to extend the time from 11 December 2013 until 13 December 2013 in the text message from the father. The text message said:
“As per your last message I will pick X up this Friday at 2pm the 13th December 2013”
The time on that message was 1.21pm, 11 December 2013. The mother is not in breach of an order that has been varied by the consent of the parties and the father consenting to the change means that there has been no breach of the order. That application is dismissed.
The Contraventions in Relation to the Changeover Location
There are five (5) contraventions that allege order 7(d) has been breached. Order 7(d) provides:
“[7] That the child spend time with the applicant father at all times as agreed in writing between the parties and failing agreement as follows:
…
(d) Save where otherwise provided for in these Orders, changeovers shall take place at Gloria Jeans, (omitted) unless otherwise agreed in writing.”
The father alleges that on 1, 6, 15 and 20 January 2014, as well as 9 June 2014, the mother failed to deliver the child to the father at the changeover location at Gloria Jeans, (omitted). The mother admits that but says that she has a reasonable excuse. Order 7(b) provides:
“[7] That the child spend time with the applicant father at all times as agreed in writing between the parties and failing agreement as follows:
…
(b) Provided that from 1 January 2014, sub-paragraph 7 (a) shall cease to have effect and in lieu thereof the child shall spend time with the applicant father in each alternate week with the applicant father to collect the child from school on Wednesday afternoon and to deliver the child to school the following Monday morning.”
The two orders in relation to the changeover were open to more than one interpretation. In my assessment, both views of the correct meaning were open to the parties. The mother considered that the (omitted) School was the appropriate changeover from 1 January 2014 (in accordance with Order 7(b)). The father’s view was that the appropriate changeover was at Gloria Jeans (in accordance with Order 7(d)).
The Family Law Act 1975 (Cth) (as amended) (“the Act”) provides at s.70NAE:
“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 are not limited to, the circumstances set out in subsections (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.”
In the present case, it is my view that there were two interpretations open, unfortunately, with respect to the orders. The mother’s view was that the (omitted) School became the changeover point from 1 January and the father’s view was that it remained at the Gloria Jeans until the child actually commenced attending school and the school changeover was only during the time the child attended school.
It is not even clear that there was a contravention of the order. The orders were ambiguous and I am satisfied that the mother ought reasonably be excused. She sought and obtained legal advice that confirmed her opinion that the proper venue for the changeover was the school.
The Final Contravention
The father also alleges a breach of Order 24(a) of the orders of 30 October 2013, which provides:
“[27] Each of the parties is hereby restrained and enjoined against:
(a) Denigrating the other parent within the hearing of the child; …”
It is alleged that the mother denigrated the father within the hearing of the child. The mother denies this. The father sets out particulars of the alleged contravention in an email that he sent to the mother on 13 April 2014 in the second paragraph:
“You then stated that X will not be coming back to see me “until she is back at school”. I then said, “what are you saying, X will not see me on Easter Sunday?” You then said, no she won’t, as it is now my time to have X.” (sic) At this point X commenced to cry and huge (sic) me, the father, and yet you then continued your tirade of words towards me stating that X “will over time see the father you really are and that she will become to hate me for the person I am.””
The mother denied saying this. Whether it amounts to denigration is a moot point. The mother has denied it and I am not able to make a finding when the contest is between two parties and one’s evidence is that it was said and the other’s evidence is that it was not. So I am not satisfied that the applicant came up to proof on the balance of probability on that contravention. I will therefore dismiss it.
All contraventions have therefore been dismissed.
The only matter remaining is to determine what amendment should be made to the order to ensure there is no confusion in the future about where the changeover should occur. I am inclined to have it in the one place but I will hear submissions of the parties in relation to this issue.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 24 September 2014
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