WHITE & LOCKHART
[2015] FCCA 810
•17 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WHITE & LOCKHART | [2015] FCCA 810 |
| Catchwords: FAMILY LAW – Whether mother contravened parenting orders without reasonable excuse – highly conflicted relationship – communication ineffective – contraventions found without reasonable excuse – order for make–up time. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975, Part VII Division 13A, ss.70NAD, 70NAD(b), 70N, 70NAC, 70NAE, 70NAE(2), 70NAE(5), 70NAE(1), 70NBA, 70NDB, 70NDB(1)(c), Subdivisions E & F Pt. VII, Div. 13A, ss.70 NEAB, 70NAF, 70NAE(5)(a) |
| White & Lockhart [2012] FMCA Fam 127 In the Marriage of Stavros (1984) 9 Fam LR 1025 |
| Applicant: | MR WHITE |
| Respondent: | MS LOCKHART |
| File Number: | MLC 7583 of 2009 |
| Judgment of: | Judge Jones |
| Hearing date: | 4 March 2015 |
| Date of Last Submission: | 4 March 2015 |
| Delivered at: | Melbourne |
| Delivered on: | 17 April 2015 |
REPRESENTATION
| Solicitors for the Applicant: | Self Represented |
| Solicitors for the Respondent: | Self Represented |
THE COURT DECLARES THAT
The respondent mother is guilty of counts 2 and 9 of the Contravention Application filed on 10 September 2014 without reasonable excuse being proven.
The respondent mother is guilty of counts 1, 4, 5, 6, 7 and 8 of the Contravention Application filed on 10 September 2014.
THE COURT ORDERS THAT:
Commencing 12 May 2015, Order 3(d) of the Orders made on 8 March 2012 be suspended during the period the father is to spend time with the child, X born (omitted) 2008 (“X”), on four following alternate weekends (suspension period).
During the suspension period the father shall spend time with X in each of the alternate weekends from after school on the Friday to the commencement of school on Monday.
Order 4 above, is subject to the father ensuring X attends his soccer training/match on Fridays and Karate on Saturday mornings.
IT IS NOTED that publication of this judgment under the pseudonym White & Lockhart is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 7583 of 2009
| MR WHITE |
Applicant
And
| MS LOCKHART |
Respondent
REASONS FOR JUDGMENT
Introduction
By his contravention application and affidavit filed 10 September 2014, the father alleges that the mother has contravened parenting orders made on 8 March 2012 (“the 2012 Orders”) during the period 15 November 2012 to 31 October 2013. The contraventions alleged that the mother failed to make the child of their relationship X, born (omitted) 2008 (“the child”) available to spend time with him in accordance with order 3(b) of the 2012 Orders.
By orders made on 24 September 2014, the father’s contravention application was listed for hearing on 4 March 2015 and the mother was required to file and serve her affidavit material by 11 February 2015. The mother filed her affidavit on 11 February 2015. The father stated at the hearing that the mother’s affidavit was not served on him until 23 February 2015. The father filed a further contravention application on 27 February 2015 alleging contraventions of the 2012 Orders on 28 March 2014, 2 April 2014 and 11 September 2014. I declined to deal with this contravention application at the hearing on the basis that the mother had not been given sufficient time to file and serve her affidavit in response.
Before I consider and determine the father’s contravention application, it is appropriate to set out extracts from the decision of Federal Magistrate Burchardt (as his Honour then was) made on 8 March 2012, giving rise to the 2012 Orders regarding the relationship of the parents and their conduct during the proceedings before him. I do so, because it seemed to me that his Honour’s observations made in 2012 were apt to describe the conflict between the parents and their conduct in these proceedings in 2015. Whilst this historical background is not directly relevant to the contravention application, it places the alleged contraventions and the conduct of the parties in context. In his decision his Honour stated at [40] and [41]:
“[40] I should make it clear that I have had regard to all of the evidence filed, including that of those witnesses who were not called to the stand. There is no question whatsoever that the father adores his son and is a perfectly competent father to care for him in a general way. There is equally no question that some of his attitudes towards the mother range from the offensive to the bizarre. They are most unfortunate and very troubling. I am particularly concerned, although it might seem to be a small matter, that on the one hand the father says that he has moved on and wishes to communicate and improve his relationship with the mother, and then on the other hand says in re-examination that if he wrote down all of his complaints, they would constitute “War and Peace”. The obvious inconsistency between these assertions is extremely troubling. I have no doubt that it is the latter remark that more truly reflects his state of mind.
[41] Likewise, however, the mother continues to have oversensitivity to the father and a tendency to exaggerate. She was extremely combative in cross-examination, and many of her answers were unresponsive. She is a highly intelligent woman and has an unfortunate tendency to exaggerate what, in some respects at least, are merely clumsy, insightless actions or initiatives on the part of the father.”
Referring to extracts from a Family Report prepared during the litigation his Honour stated at [61]:
“[61] Those observations entirely accord with my own view of the situation. These two parents are unable even to pass [X] from the one to the other without bitterness and mutual obloquy, which can only be distressing to him. They cannot take him to the doctor, toilet-train him, or otherwise aid in his development in a mutually cooperative way and, indeed, such issues only give rise to mutual recrimination. It should be noted in passing that one of the striking features of this case is that neither party concedes in even the smallest measure that they may have themselves contributed to the difficulties that presently obtain. Each completely self-exculpates and, on the other hand, vividly blames the other."
In his conclusions his Honour stated at [94] and [99]
[94] I should make it clear that I think that the relationship between the two parents is so sundered that it is unlikely to improve in the foreseeable future, and as likely as not will never do so. With all the professional assistance they have received, the parties have made little, if any, progress in their interrelationship. On the part of the father in particular, I think his lack of insight is likely to ensure that this remains the case on an ongoing basis.
…
“[99] What one would hope, however forlornly, is that by the time [X] goes to school and there is a significant change in his day-to-day routine, this matter will settle down, and the parties, as they ought to, will achieve some measure of resolution that enables them to deal with [X]’s affairs in the cooperative way that is in his best interests. They ought, by then, to be able to work out the future between them. This applies in particular to school holidays. I have granted liberty to apply in respect of disagreement about this aspect of the matter.”
The 2012 orders provided that the mother has sole parental responsibility for the child but that she was required to consult with the father about any significant medical treatment for the child and any choice of school to which the mother proposes to send the child. The orders provided that the child live with the mother and spend time with the father as follows:
3. The child spend time with the father:
a)Each alternate Saturday commencing 10 March 2012 from
9:00 am to 5:00 pm with the changeover at [organisation omitted], [Suburb A];b)On each Tuesday and Thursday commencing 13 and 8 March 2012 respectively from 9:00 am to 6:00 pm with changeover at [organisation omitted];
c)From 1 January 2013, from the first weekend the child spends with the father, from Saturday 9:00 am to Sunday 12:00 pm;
d)From 1 January 2014, from the first weekend the child spends with the father, from Saturday 9:00 am to Monday 9:00 am, with return to be to crèche or school as applicable;
e)From when the child starts school on each Wednesday from after school until Thursday at the start of school, with the father to collect and return;
f)When the child starts school, at such times as the parties agree during school holidays, and liberty is granted to the parties to apply in the event they are unable to agree;
g)On Father’s Day from 10:00 am to 5:00 pm with changeover at [organisation omitted];
h)If the child is in crèche on the father’s and the child’s birthday from 9.00 am until 5.00 pm;
i)As otherwise agreed between the parties; and
j)In the event that any of the father’s time falls on a public holiday, other than Easter, Christmas or Boxing Day such time is suspended to the next day on which crèche or [organisation omitted] is open;
Each of the contraventions alleged by the father are in relation to order 3(b) and (j) of the 2012 Orders.
Before turning to the specific contraventions alleged by the father, I shall set out general matters arising out of the parties evidence and submissions.
The father relies on his affidavit filed 9 September 2014. He says he wants make up time because his time with X is precious. He agreed with the mother, on cross-examination, that there were times he did not spend with X in accordance with the 2012 orders. He does not agree that there were thirteen times he did not see X in 2012 and four times in 2013, however, he cannot recall the amount of times he did not see X. He says his failure to see X during his spend time was because of work or other commitments. I note that an example of this is contained in Annexure H1 to the father’s affidavit filed 12 September 2014 which contains a text message sent by the father to the mother on 2 November 2013 at 8.40am in which the father states “Due to unforeseen circumstances I will not be able to see X today.”
I asked the father whether he had sought make up time on those occasions he was unable to spend time with X in accordance with 2012 orders. He responded that he had not.
The father says that the orders that he seeks from the Court where the alleged contraventions are found are for make up time. He says that he would like an order that provides for one overnight time for each of the eight contraventions alleged. In practical terms he seeks that this be achieved by him collecting X from school on the Friday of the alternate weekend he presently spends with X pursuant to order 3(d).
The father denies that he filed the contravention application because the mother had filed an application on 7 July 2014 to the Court for an order that a passport be issued for X without the father’s consent and that she be permitted to travel overseas to (country omitted) with X.
The mother relies on her affidavit filed in 11 February 2015. The mother admits each of the alleged contraventions but argues that she had a reasonable excuse. She says that on each of the alleged contraventions except for the dates 24 October 2013, 29 October 2013, 31 October 2013 and 5 November 2013, she offered make up time to the father which was either refused by him or taken. Consequently, she says that any make up time order should provide for make up on four occasions, bearing in mind that at the time the contraventions occurred the father spend time was from 9.00am to 6.00pm during the day. Her preference for the way in which make up time is implemented on the four occasions is that the father spend from Saturday to Monday morning on the weekends X would be living with her. In other words there would be an eight week period during which X spent from Saturday morning to Monday morning with his father on each weekend. This is because she is not confident the father will take X to his soccer on Fridays and Karate on Saturdays.
She says that there were many occasions the father did not spend time with X in accordance with the orders. She says there were 13 occasions in 2012 and 4 occasions in 2013. In the circumstances she does not understand why the father is pursuing contravention applications in relation to contraventions that occurred some time ago. She believes that the father made his contravention application in retaliation for her application to obtain a passport without his consent to travel to (country omitted) with X over December 2014 to January 2015.
The facts are that the mother’s application was filed on 7 July 2014 and the father’s contravention application was filed on 10 September 2014. The father says that he attempted to file his contravention application earlier but there was a difficulty with Registry. His explanation for failing to take timely steps to pursue the alleged contraventions (which occurred over late 2012 to late 2013) was that he was attempting to work things out with the mother. I find this explanation somewhat disingenuous, given the apparent very poor communication between the parties and the evident incapacity to discuss and agree upon variations to the parenting orders, including any make up time.
The Law
Part VII Division 13A of the Family Law Act 1975 (“the Act”) deals with the consequences of failure to comply with orders and obligations that affect children.
Section 70NAD of the Act deals with the requirements necessary in certain orders. Under s.70NAD(b) the order relevant to the contravention must be a parenting order and this includes a parenting order relating to the time that a child spends with a parent in accordance with s.65N of the Act.
Meaning of “contravened an order”
Section 70NAC of the Act deals with meaning of “contravened an order” and states:
“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; 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.”
In other words, in relation to non-compliance with a Court order, it is clear that the provision requires the Court to be satisfied a respondent to a Contravention Application has either intentionally failed to comply or has made no reasonable attempt to comply with the relevant orders.
The applicant to a Contravention Application bears the onus of proving the contravention of the respondent on the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) refers to the standard of proof and provides for the Court to take into account the nature of the proceedings in determining whether it is satisfied as to the requisite standard and states:
“(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.”
Meaning of “reasonable attempt to comply with the order”
The issue of whether a respondent to a Contravention Application has made a “reasonable attempt to comply with the order” has been considered in a number of cases. It is clear that a parenting order in relation to a child spending time with the other parent is not a mere declaration, but casts an obligation upon the relevant parent (the mother in this case):
“to take reasonable steps to deliver the child to the [other parent] at the commencement of the access period.”[1]
[1] In the Marriage of Stavros (1984) 9 Fam LR 1025 at 1030.
Whether the steps that were taken by the relevant parent were a reasonable attempt to comply with the relevant parenting order will ultimately depend on the facts and circumstances of each case. As Riethmuller FM (as his Honour then was) stated in TVT & TLM (2006) FMCAfam 20:
“[I]t is accepted that the residence parent has a duty to ensure that the child not only attends, but does so in a positive manner.”[2]
[2] TVT & TLM, at [33].
Indeed, the Full Court of the Family Court of Australia (“the Full Court”) stated in the case of In the Marriage of Stephenson & Hughes (1993) 16 Fam LR 443 that a primary carer, such as the mother, must appreciate that they are not entitled to treat the other parent “as an enemy who [is] to be thwarted whenever possible by active steps or by passive resistance”.[3]
[3] In the Marriage of Stevenson & Hughes (1993) FLC 92-363; (1993) 16 Fam LR 443, per Fogarty J at 450.
Meaning of “reasonable excuse for contravening an order”
Section 70NAE of the Act deals with the meaning of a “reasonable excuse for contravening an order”.
The section commences:
(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).
Under s.70NAE(2):
“(2) A person (the respondent) is taken to have 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 Court on the person bound by it; and
(b)the Court is satisfied that the respondent ought to be excused in respect of the contravention.”
Section 70NAE(5) deals with contravening an order as to with whom a child is to spend time. It states:
“A person (the respondent) is taken to have a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than necessary to protect the health of the person referred to in paragraph (a).”
It is apparent from s.70NAE(1) that where an order deals with the time a child spends with the parent, s.70NAE(5) prescribes the circumstances where a person is taken to have a reasonable excuse but does not limit the circumstances in which a Court may find that the person has a reasonable excuse.
As to the defence available under s.70NAE(5) of the Act, which is expressed in similar words to that available under s.112AC of the Act at that time, Smithers J in the case of In the Marriage ofO’Brien (1992) 16 Fam LR 723 stated at 727:
“[I]t seems to me that the passing of s.112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether, in the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out the access order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person, including the child.”
Where a contravention is established
If a contravention is established, then, regardless of whether the contravention was reasonably excused, the Court has powers under s.70NBA of the Act to vary the parenting order and the powers under s.70NDB to make an order compensating a parent for time lost. More specifically, s.70NDB(1)(c) states that the Court:
“(c) may make a further parenting order that compensates the person for time that the person did not spend with the child (or the time that the child did not live with person) as a result of the current contravention.”
Indeed, the provision is clear that the Court is required to consider what I will describe as a ‘time lost order’ (more commonly referred to as a ‘makeup order’) provided that such is in the best interests of the child.
Contravention without a reasonable excuse
Subdivisions E and F of Pt.VII, Div.13A, when read together, make it clear that the Court has powers to deal with contraventions committed with a reasonable excuse and those without a reasonable excuse. Apart from a ‘time lost’ order, the Court has a range of powers to deal with contraventions without a reasonable excuse.
The structure of these two subdivisions is such that the Court must decide whether subdivision E or F is the appropriate subdivision in the circumstances. Subdivision E applies where the person who has contravened an order without reasonable excuse has previously not had a sanction imposed on him or her for contravention of a parenting order or acted with serious disregard of that order: see s.70NEAB. In considering whether to make certain orders under subdivision E or subdivision F, such as a bond, community service orders, fine or a sentence of imprisonment, I must be satisfied beyond reasonable doubt that the grounds for making the order exists: s.70NAF(3).
Where the Court is not satisfied that there has been serious disregard by a person of their obligations under a parenting order and a sanction has not previously been imposed, then the orders that can be made in less serious cases include:[4]
i)an order to attend a post-separation parenting program to better understand the obligations created by parenting orders;
ii)a bond under s.70NEC of the Act; and
iii)a costs order.
[4] Subdivision E, particularly s.70NEB of the Act.
Where the Court is satisfied that there has been serious disregard by a person of their obligations under a parenting order and a sanction has previously been imposed, then the orders that can be made include[5]:
i)a community service order;
ii)a bond;
iii)a fine not exceeding 60 penalty units;
iv)a sentence of imprisonment; or
v)a costs order;
[5] Subdivision F, particularly s.70NFB(2) of the Act.
I should say that I am satisfied that the 2012 orders are parenting orders.
The Alleged Contraventions
15 November 2012 - Count 1
The father alleges that on 15 November 2012, in contravention of the orders made on 8 March 2012, the mother contravened order 3(b) in that she “refused to allow access claiming X had a medical appointment.” – Count 1.
In his affidavit the father deposed that the mother “refused to allow access claiming X had a medical appointment on that day. To date I have not been provided with any evidence of the appointment or the outcome of the alleged appointment make up time has been repeatedly refused and denied. See attachments A1 to A2, G1 to G4.”
Annexure A1 to the father’s affidavit filed 10 September 2014, is a text message sent by the mother to the father on 15 November 2012 at 7.37am in which she states:
“Hi, X has a medical appointment that I have to take him (sic). I’ll send you details in the email. We will have to do make up time. I can do this Sunday or next week which ever suits you.”
Annexure A2 is an email sent by the father to the mother at 7.49am on the same day asking the mother about the details of X’s “claimed illness that is so bad that I am unable to take him to an appointment or is he in the emergency ward? If so which hospital has he been admitted to?” The father then states, if it is a doctor’s appointment, he is able to take him. He finishes the email stating, “I do not accept your ridiculous claim that only you are able to take X to a medical appointment.”
During cross-examination by the mother, the father was taken to a copy of an email attached to the mothers affidavit filed 11 February 2015, Annexure L A. The email is dated 17 November 2012 and was sent from the mother to the father’s email address (the father confirmed that was his current email address at the time). The email informs the father that the appointment was for an ultrasound for X’s abdomen. She informs the father that the family’s General Practitioner referred X there as a consequence of X experiencing constant pain in his stomach with unusual protruding. She states that the appointment was in (omitted) MIA, this being the earliest appointment available. She states that the reason she had to take X was because the referral document contained her address details, and she was expected to provide them with her personal documents on the appointment date. In evidence the mother said that she was aware of the appointment some three days before it was scheduled.
The father’s evidence is that he did not receive this email. In the absence of expert probative evidence before the Court which would satisfy me that an email sent to the father’s address, being the identical email address sent by the father to the mother on 15 November 2012 (see Annexure A2 to the fathers affidavit filed 10 September 2014) was not transmitted and received by the father, I am unable to accept his explanation.
I am satisfied that the mother did provide the father with an explanation of their reasons for the appointment and her decision to attend the appointment with X herself. I am satisfied that it was reasonable and natural that she would want to follow up the referral from X for medical imaging, in circumstances where it is apparent X had suffered his complaint for a period of time. There is no evidence before the Court about which parent or indeed whether both parents have X on their Medicare card. It is probable that the father, notwithstanding his details were not on the referral, would have been able to have signed and paid for the medical imaging. However, on balance I am satisfied that the mother’s explanation was reasonable.
A question that I must determine, given that the contravention is in relation to the time the child was to spend with the father, is firstly, whether the mother believed on reasonable grounds that her actions were necessary to protect the health of the child: s.70NAE(5)(a). Clearly, this is not a circumstance where the mother was protecting the child from something else or another person. Rather, it was the mother taking action to safeguard the child’s health by following up, at the earliest time possible a referral for medical imaging. I am satisfied that read naturally, the ordinary meaning of the text in s.70NAE(5)(a) is apt to cover circumstances where the parent takes action, they reasonably believe on reasonable grounds is necessary to protect the child’s health by attending upon medical practitioners. In any event the Court’s determination of whether the mother had a reasonable excuse is not limited by s.70NAE(5).
I am satisfied the mother had a reasonable excuse. She made the appointment on referral from the General Practitioner and it was appropriate for her to follow up on it. I am also satisfied that the mother should be excused.
The mother claims that she offered make up time on 15 November 2012. I am satisfied that she did as this is clearly evident in her SMS text message to the father (Annexure A1). The father claims that the mother blocked him on her phone and he was unable to contact her. Whatever the truth of this is, they were clearly still able to communicate by email during the relevant time. I am satisfied that the father failed to respond to the mother’s offer for make up time in a timely fashion. There is no doubt having regard to annexures G1 to G4, that in April 2013 the father raised the fact that make up time was owing him. He referred to “the day u claimed he was sick?” The father confirmed in evidence that he was referring to 15 November 2012.
The text messages continue with the mother responding that she had suggested make up time but didn’t hear from him and stated she would “talk with Berry Street (the contact Centre) and make up your one day, on one of Saturdays at the end of this month” (Annexure L3). The father then responded we can use this Friday as it is convenient for him. The mother responded that Friday is not convenient because of pre- planned arrangements which can’t be cancelled. She stated that “Fridays won’t be convenient due to fixed plans. So I’ll check with Berry Street and my diary and tell you which Saturdays we are available” (Annexure L4). The father responded, “I will let u know when I can take the day as I did today.”
I have frankly found the parent’s approach to this issue of a make up day childish and lacking any sense of accommodation or flexibility. It reflects the dismal state of their relationship which Burchardt J reflected upon in his decision in early 2012.
The mother’s evidence is that make up time for 15 November 2012 occurred on 21 September 2013. She relies on a text message interchange between the parties in or around 18 September 2013, where the father sends a text message to the mother stating, “I will need to pick X at 9.00am at (omitted) crèche”. The mother then sends a text to the father (Annexure L, Mothers Affidavit filed 11 February 2015) in which she states:
“Will bring him at 9.00am. The only day I missed was 15 November last year when X was sick. You refuse (sic) make up time that weekend, and a few times that I suggested. Since then you haven’t shown up so many times yourself. To end the drama let this Sat be make up time for 15 November 2012.”
The father’s evidence in response to this proposition was that if it had been make up time for anything, he would have “ticked it off”. In his evidence, he initially said whether or not he has had makeup time, is something he keeps in his head, then he stated he had written that on a piece of paper and then he stated he kept a diary. He said he had it somewhere but he did not have it here, meaning in the Court. Having observed the fathers response I have formed the view that this notion that he had some process by which he recorded makeup days he was owed and which had been ticked off was evidence he contrived in order to maintain his position that there had been no makeup time for the alleged contraventions.
On the balance of probabilities, having regard to the material before me and the evidence of the parties, I am satisfied that make up time was eventually arranged between the parties in relation to the time the father did not spend with X on 15 November 2012, in accordance with the 2012 orders.
Accordingly I find that:
a)On 15 November 2012, the mother contravened order 3(b) of the orders made on 8 March 2012;
b)The mother had a reasonable excuse for the contravention and ought be excused; and
c)Makeup time was provided to the father.
25 December 2012 – Count 2
The father alleges that on 25 December 2012, in contravention of the orders made on 8 March 2012, the mother contravened orders 3(b) and (j) in that the mother “refused to allow contact on Christmas Day as set down in the orders” – Count 2.
The mother admits the contravention. She said however she did not understand at the time how order 3(j) operated. I agree that this subparagraph is an unusual order as it has the effect that the father’s time with X when it falls on a public holiday, other than Easter, Christmas or Boxing Day, is suspended. Read in context this seems to be because the crèche and contact centre would not be open on Easter, Christmas or Boxing Day, to enable changeover. The result is that time spent by either parent on Christmas or Boxing Day is not shared, as is commonly the case under parenting orders.
Of course the parties theoretically could agree on an arrangement that enabled them to share this significant time, as order 3(i) provides for that. I say theoretically because given the state of their relationship, it seems unlikely they could ever come to any common sense agreement. In my view, it matters not, whether either parent is religious or believes in Christmas Day, the fact is it is likely that it will have significance for X and that it would be in his best interests for the parents to share this day with him. However, it is up to the parties to take a mature stance about this issue not the Court.
The father submits that the mother understood this order and knew that as Christmas Day fell on the day he was to spend time with X pursuant to order 3(b), she contravened this order on 25 December 2012 without a reasonable excuse. He relies on correspondence between the parties prior to Christmas Day.
In an email dated 20 December 2012, sent to the mother, with the subject stated as “Xmas Day”, the father refers to Xmas mass and asks if he can pick X up at 8.00am from outside the crèche (annexure L3, fathers affidavit filed 10 September 2014). The mother responds by email on 20 to December 2012 stating, “I can drop him off at 9:00am 6.00pm return, I prefer (omitted) police station” (annexure L4).
On 25 December 2012 at 9.24am, the father sends a SMS text message to the mother asking her if she is delivering X today, stating he is waiting at (omitted) Police Station. The mother responds and in her SMS text states:
“Just in case you haven’t seen the email. I have suggested if we go by judges recommendation that I spend xmas with X because I don’t have family here and you have him on xmas Eve. Because you didn’t have h (sic) on xmas eve are prepared to bra g (sic) him over tomorrow. I do apologise I went on today’s arrangement because I couldn’t trace orders send (sic) didn’t remember what it said about may cover arrangement when it falls on xmas or Easter…..”
The father agreed that Judge Burchardt did express a view along the lines stated by the mother in her text message.
I am satisfied that, by reason of the email sent by the mother to the father on 20 to December 2012, she understood that the father was to spend time with X on 25 December 2012 from 9.00am to 6.00pm. I do not accept that it is a reasonable excuse for a party to parenting orders to state they could not trace the orders. I have formed the view that, as the time approached, the mother genuinely felt she would be lonely without X on Christmas Day, given she does not have family in Australia. She may well have attempted to change the arrangements along the lines suggested by Judge Burchardt, however she has not included that email as an attachment to her affidavit.
On the balance of probabilities I am satisfied that the mother understood the effect of the orders, however, appreciating that without her son at all on Christmas Day she would feel lonely, decided not to comply with the orders. There is no evidence before the Court that she attempted by email to make an alternate arrangement with the father.
Consequently, I find that the mother did not have a reasonable excuse for failing to comply with order 3(b) of the 2012 orders on 25 December 2012. In the circumstances, however, I do not regard this as a serious breach of the orders.
The father agreed that make up time was arranged in relation to that contravention.
Accordingly I find that:
a)On 25 December 2012, the mother contravened order 3(b) of the orders made on 8 March 2012;
b)The mother did not have a reasonable excuse for the contravention; and
c)Makeup time was provided not to the father.
18 July 2013 – Count 3
The father alleges that on 18 July 2013, in contravention of the orders made on 8 March 2012, the mother contravened order 3(b) in that the mother “refused contact as (the mother) had to attend an event. Make up time has been repeatedly refused.”- Count 4.
At some time before 7.46am on 18 July 3013, the mother sent the father an SMS text message stating:[6]
“Hi. I’m sorry but I have to take X to an event that I can not cancel. I will make up time by you returning him at 5.30pm this Sunday on the weekend that he’ll sleep over. Or one Saturday or Sunday of my weekend, except 27 -28 July 2013.”
[6] Father’s affidavit filed 10 September 2014, annexure C1
The father responded asking what the event was and stating he could take X. The mother stated that it was something she had to take him to otherwise she would have asked him to do so. The father then asks if the mother can take X to his (hobby omitted) class at 3.00pm. She responds that she will aim to do so but can’t promise.
The SMS text communication ends there. I have formed the view that, by reason of the father’s last text to the mother on that day, asking her to take X to his (hobby omitted) class, he was impliedly agreeing to the change in the arrangement, as the parties are permitted to do by reason of Order 3(i). In other words, by agreement, the parties waived the obligation under Order 3(b) on 18 July 2013.
As was a constant theme in these proceedings, the mother’s evidence was that make up time was arranged between the parties in accordance with the mother’s proposal. The father denies this. As I have found that there was no contravention it is unnecessary to deal with this dispute.
Accordingly I find that the alleged contravention on 18 July 2013 of Order 3(b) of the orders made on 8 March 2012 is not proved.
24 October 2013, 29 October 2013, 31 October 2013 and 5 November 2013 – Counts 4, 5, 6, 7
Although the father alleges separate contraventions on each of the days on 24 October 2013, 29 October 2013, 31 October 2013 and 5 November 2013, I have grouped them together for the purpose of considering the evidence as each contravention which is admitted by the mother occurred as a consequence of X’s involvement in a (hobby omitted) project arranged through her work. The mother is employed as a (occupation omitted) with (employer omitted).
The contraventions alleged are that the mother contravened order 3(b) of the orders made on 8 March 2012 because:
a)On 24 October 2013 in that she “refused contact as (the mother) was “unable to bring X today” - Count 4;
b)On 29 October 2013 as the mother “refused to allow contact as X was “required for a (omitted) project”. Make up time has been refused” – Count 5;
c)On 31 October 2013 in that she “refused to allow contact as X, had a (omitted) project to attend. Make up time has been refused” – Count 6; and
d)On 5 November 2013 as the mother “refused to allow contact as X had a (omitted) project to attend. Make up time has subsequently been refused”- Count 7.
The mother admits she contravened the order on each of those days but argues she had a reasonable excuse. She says that she offered makeup time for all those dates missed by extending the father’s day time with X through prior arrangement with the contact centre.
Each of the dates related to a (hobby omitted) project involving children and parents, especially women, from a multicultural background. The (hobby omitted) company approached her work and she thought it would be a great experience for X. She said that the first two dates on which the orders were contravened involved an interview process. She says she was delighted when X was finally selected to participate in the (hobby omitted) project. She said that she was often only given last minute notice of a (hobby omitted) date and that she was often inconvenienced because of her work commitments.
When asked why she did not ask the father to take X to the interviews and/or (hobby omitted), she said she felt she should be the constant person involved in transporting X and observing the process. She also stated that she did not trust the father to take X to the locations where (hobby omitted) occurred.
Annexure E to the father’s affidavit contains a copy of a SMS text message from the mother to the father suggesting two weekends with a 5.30pm return as make-up time.
The father concedes that there was an arrangement reached for him to spend extended day time but he says he pulled out of this arrangement at the last minute (that morning)[7] because he realised he was only getting one makeup period for two day time periods lost. I asked why he did not proceed with this day and then attempt to arrange further make up time with the mother. His response was he knew what the mother was like. I found this response churlish and immature.
[7] Ibid Annexure H1
In the context of a sundered relationship where the parties appear generally unable to turn their minds to X’s best interests and away from their ongoing enmity, I am satisfied that the mother’s concerns the father might not take X to each and every location he was required to attend for the purpose of interview and (hobby omitted) was legitimate and reasonable. Having observed the contemptuous attitude the father displays towards the mother during the proceedings, it may well have been a probability that he would not have agreed to co-operate in a (hobby omitted) project that originated from the mother’s work. Yet it is patently obvious that participation by X, given his cultural background, in a (hobby omitted) embracing multiculturalism, was clearly in his best interests. The mother’s failure to inform the father until the morning of his time spend no doubt is a concern and no doubt caught up with her anxiety that the father would not cooperate in this venture.
I am satisfied, having regard to the evidence that, in the circumstances the mother’s decision to contravene order 3(b) on each of the days 24 October 2013, 29 October 2013, 31 October 2013 and 5 November 2013 was reasonable and she should be excused.
I accept the mother attempted to come to an arrangement regarding make up time. However, I am satisfied there was no make up time, in part at least due to the churlish behaviour of the father.
Accordingly I find that:
a)On 24 October 2013, the mother contravened the Order 3(b) of the orders made on 8 March 2012 with reasonable excuse – Count 4;
b)On 29 October 2013, the mother contravened the Order 3(b) of the orders made on 8 March 2012 with reasonable excuse – Count 5;
c)On 31 October 2013, the mother contravened the Order 3(b) of the orders made on 8 March 2012 with reasonable excuse – Count 6;
d)On 5 November 2013, the mother contravened the Order 3(b) of the orders made on 8 March 2012 with reasonable excuse – Count 7.
26 December 2013 – Count 8.
The father alleges that on 26 December 2013, in contravention of the orders made on 8 March 2012, the mother contravened order 3(b) in that the mother “refused to allow contact with X, make-up time has subsequently been refused.”- Count 8
The evidence is that X was spending time with his father, in accordance with Order 3(b) on 24 December, this being a Tuesday. He failed to return X, as he was obliged to do at 6.00pm that day. He over held X until around 5.00pm Christmas Day.
At 9.13am on 26 December 2013, the father sends a SMS text to the mother saying he is waiting at the Creche. The mother responds by text:[8]
“Please refer to court orders and the events of past two days where you decided to keep X over night and not return him until 4 yesterday ….”
[8] Ibid Annexure J1.
The fathers responds by text:
“Orders clearly state that boxing day is the same as Easter and Xmas day u must deliver X or u will again be in breach of the orders.”
I asked the father whether he thought his position, that she deliver X in to his care after he had (in breach of the orders) spent time with X from 24 December 2013 to late afternoon on Christmas day, the very next day was unreasonable. He responded no, he stated she had done it to him the previous Christmas. In other words he was engaging in a tit for tat. He made this clear in a SMS text he sent on 26 December 2013, where he stated, “Yesterday was makeup of 25 December 2012.”[9]
[9] Ibid Annexure J2.
The mother admitted the contravention but argued that she had a reasonable excuse. This being that, because of the father’s contravention of the orders, she had not seen X at all from the morning of Christmas Eve to late afternoon Christmas day. She felt it was in X’s best interests to have time with her. I agree.
I am satisfied that in the circumstances, the mother had a reasonable excuse for contravening order 3(b) on 26 December 2013, and she should be excused.
I find the father’s claim that he should be entitled to make up time completely disingenuous given he had spent time with X for the whole of Christmas day when he was not entitled to do so under the orders. I am satisfied that, by reason of over holding X from Christmas Eve to the end of Christmas Day, he had make up time.
Accordingly I find that:
a)On 26 December 2013, the mother contravened order 3(b) of the orders made on 8 March 2012;
b)The mother had a reasonable excuse for the contravention; and
c)Makeup time was provided to the father.
31 December 2013 – Count 9
The father alleges that on 31 December 2013, in contravention of the orders made on 8 March 2012, the mother contravened order 3(b) in that the mother “refused to allow contact with X, make-up time has subsequently been refused.”- Count 9
At 7.43am on 31 December 2013 the mother sent the father a text stating:
“Due to events on Xmas Eve and Xmas day, I will not be able to bring X today, as I am concerned you will not return him back again.”
The father responded, correctly that this was a contravention of Court orders.
The mother admits that she contravened order 3(b) on 31 December 2013 but that she had a reasonable excuse as she was concerned the father would over hold X from New Years Eve and for the whole of New Years day as he had just done at Christmas time.
I am sympathetic to the mother and her concerns; however, responding in a like fashion to the way the father behaved was inappropriate and inexcusable. There is no dispute that make-up time was not provided.
Accordingly I find that the mother contravened order 3(b) on 31 December 2013 without reasonable excuse.
Appropriate Orders
I now turn to consider what order the Court should make with respect to my findings in relation to the alleged contraventions. In considering the orders which are appropriate and in X’s best interests, I have taken into account the fact that these contraventions occurred sometime ago (from November 2012 to the end of 2013). The father has not provided an acceptable reason why he has waited so long to prosecute these alleged allegations. Also relevant, is the ongoing fractious relationship between the parties, their churlish and immature behaviour in adhering to the court orders and the contemptuous manner in which they communicate. In short, little appears to have changed since the present orders were made in early 2012.
S.70NDB of the Act provides:
Order compensating person for time lost
(1) If:
(a) the primary order is a parenting order in relation to a child; and
(b) the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);
the court:
(c) may make a further parenting order that compensates the person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention; and
(d) must consider making that kind of order.
Note: If the person does not have a reasonable excuse for a contravention, the court has the power to make an order compensating a person for time lost under paragraph 70NEB (1) (b) or 70NFB(2)(c).
(2) The court must not make an order under paragraph (1)(c) if it would not be in the best interests of the child for the court to do so.
There are five occasions on which the father failed to spend time with X without makeup time being provided. One of these occasions is because the father pulled out of the make up time arrangement on the morning of the makeup day, in my opinion, for no good reason.
In the circumstances of this matter I am satisfied that I should vary the orders made on 8 March 2012 by providing for the father to have, in effect, 4 additional make-up days with X. I am satisfied I should give effect to this by increasing four of his alternate weekend times, so that he can collect X from school. I shall provide this, subject to the father ensuring that X attends his soccer training or match on the Friday after school and his Karate class on each of the Saturday mornings. If the father is not able to do this then he should advise the mother no later than 6.00pm on the Wednesday prior to the Friday makeup time that he is unable to spend time with X. If this occurs the father will have foregone his makeup time with X.
For the reasons set out in this judgment, I make the orders above.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of Judge Jones
Associate:
Date: 17 April 2015
Key Legal Topics
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Family Law
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Civil Procedure
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Appeal
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Remedies
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Jurisdiction
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Procedural Fairness
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