Whitfield and Moore and Anor

[2019] FCWA 250

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WHITFIELD and MOORE & ANOR [2019] FCWA 250

CORAM: O'BRIEN J

HEARD: 26 NOVEMBER 2019

DELIVERED : Ex tempore

FILE NO/S: PTW 2083 of 2008

BETWEEN: MS WHITFIELD

Applicant

AND

MR MOORE

First Respondent

AND

MS THOMSON

Second Respondent

Catchwords:

PARENTING - CONTRAVENTION - Where contraventions admitted and no reasonable excuse established - Turns on its own facts.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	Self-Represented Litigant
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

McClintock & Levier (2009) FLC 93-401

Oswin & Oswin [2019] FamCAFC 164

Rice & Asplund (1979) FLC 90-727

Whitfield & Moore & Anor [2018] FCWA 128

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Whitfield, Moore & Thomson has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1The matter for determination is the Form 18 contravention application filed by [Ms Whitfield] (“the grandmother”) by which she alleges that the respondents, her son [Mr Moore] (“the father”) and [Ms Thomson] (“the mother”) have contravened orders made by me on 23 July 2018 without reasonable excuse.

2Those orders provide for the children of the respondents, [Child A] born [in] 2008, [Child B] born [in] 2009, and [Child C] born [in] 2012 to spend time with the grandmother.

3The orders as framed provide for that time to occur for a period of eight weeks from the date of the orders each alternate Friday from the end of school or 3.00 pm until 6.00 pm. Thereafter, the children were to spend time with the grandmother again each alternate Friday – with those visits themselves alternating between a short visit from the end of school or 3.00 pm until 6.00 pm, and a longer visit extending to 9:30 am on the following day. Otherwise, specific orders were made for the grandmother to spend time with the children for each child’s birthday party, and on each Christmas Day from 10.00 am to 1.00 pm by joining in the relevant family celebrations unless the respondents agreed in writing to her taking the children away to spend time with them alone. Various other specific issues orders were made.

4The primary orders were made following a trial which took place on 2 July 2018. The mother participated in the trial and was represented by a lawyer; the father did not attend. The grandmother was self-represented. The relevant background leading to that trial, and the evidence given in it and my relevant findings, are summarised in my judgment published on 23 July 2018 and do not require repetition for present purposes.[1] Fundamentally, however, it may usefully be noted that the mother’s case at trial was that the children should spend time with the grandmother, but that such time should be supervised by her.

The present proceedings

[1] Whitfield and Moore & Anor [2018] FCWA 128.

5All parties were self represented in the contravention proceedings.

6Accordingly, at my direction, the Principal Registrar provided to each party under cover of a letter dated 12 November 2019 copies of s 205C, s 97, s 205E, s 205N, s 205O, s 205SA and s 205SB of the Family Court Act 1997 (WA) (“the Act”), advising that those sections were relevant to the application and that it was in their best interests to read them carefully prior to the hearing.

7At the commencement of the hearing this morning, I confirmed with each party that they had received and read those sections. I also spent some time explaining the relevant sections to them. In particular, I explained the meaning of the word “contravened”, the meaning of the words “reasonable excuse”, the standard of proof to be applied, the differences between subdivisions 5 and 6 of Division 13 of Part 5 of the Act, and the powers open to be exercised under each if a finding of contravention without reasonable excuse was made.

8I further explained to the parties the process by which the hearing would be conducted. In particular, I made it clear to the respondents that they were under no obligation to give evidence; I record that at the contravention conference held before a Registrar of the Court on 6 November 2019 they confirmed that they did not intend to file any affidavits, nor to call any witnesses.

9I further explained to the parties their right to object to inadmissible evidence. I drew to the attention of the parties the inadmissible nature of annexure A to the affidavit of the grandmother filed on 12 March 2019, and upheld the objection made as a result. In short, as the author of the document was not called to give evidence and made statements of fact in the document, the rule against hearsay was offended.

10I then put each of the alleged contraventions to each respondent individually. A significant number of the contraventions were admitted. The respondent mother contended however that there was reasonable excuse for each of them. The father simply admitted them.

11A number of the alleged contraventions were disputed, effectively based on an assertion by the mother that the grandmother did not seek to spend time with the children on the relevant occasion, where the grandmother would contend that she did not attend to collect the children based on the consistent refusal of the mother to comply with the primary orders.

12Sensibly, the grandmother did not pursue those disputed matters, given the number of contraventions admitted. The trial focussed on the issue of whether the admitted contraventions occurred with reasonable excuse.

13The father did not give evidence in that regard.

14The mother gave evidence in which she asserted that on the first scheduled visit the grandmother appeared to be affected by alcohol. She refused to hand over the children unless the grandmother accompanied her to her home and submitted to a breathalyser test. The grandmother denied being affected by alcohol and refused to accompany the mother to her home or to submit to a test.

15The mother further gave evidence that the children were embarrassed by being collected from school and she accordingly insisted on the grandmother collecting them from her home notwithstanding the express terms of the order.

16The mother also raised issues in relation to the attendance of the children at sporting commitments during the time when they were scheduled to be with the grandmother.

17The mother’s evidence in that regard, commonly with her evidence generally and her presentation of her case both at trial and in the preliminary hearing, was singularly unimpressive. She presented as having very firm views as to the correctness of her position and her right to unilaterally vary the orders, or simply not comply with them, if she so chose. Apart from the allegation that the grandmother was affected by alcohol at the first scheduled visit, the matters raised at trial were not raised by the mother in the preliminary hearing of the contravention application in which she simply asserted that “she is not getting the time that I spend with my children” and “she doesn’t get to spend more time with my children than I do.” At that preliminary hearing she clearly stated that she did not intend to comply with the primary orders between that date and the date of trial. She raised no issue about handover venue or children’s sporting commitments or any alleged embarrassment to the children.

18In cross examination today the mother readily acknowledged that she doesn’t want the grandmother to see the children. She made comments about the father knowing the grandmother better than anyone and not liking her.

19In short, I do not accept the evidence of the mother in relation to the issue of reasonable excuse. No reasonable excuse for the admitted contraventions is established.

20Accordingly, I find that each of the respondents, without reasonable excuse, contravened the orders contained in paragraph 1 of the primary orders on each of the dates alleged in the Form 18 application other than those dates which were expressly abandoned by the grandmother at the commencement of trial.

21The questions then arise as to, firstly, whether the contraventions should be dealt with pursuant to subdivision 5 or 6 of Division 13 of Part 5 of the Act, and following on that determination, what penalty if any is appropriate. The further question arises as to whether any order should be made varying the primary order in the circumstances.

22Prima facie the contraventions would fall to be dealt with pursuant to subdivision 5, as no court has previously made an order imposing a sanction or taking an action in respect of any contravention by either respondent of the primary orders, nor have proceedings been relevantly adjourned. It remains open to determine that the proceedings should be dealt with pursuant to subdivision 6 bearing in mind the express provisions of s 205N(4) which provides for that course if the Court is satisfied that the person who contravened the primary order has behaved in a way that showed a serious disregard for his or her obligations under that order.

23I squarely raised that issue with the parties and invited their submissions. The applicant conceded that the contraventions should be dealt with under subdivision 5 as being less serious.

24On balance, and while in my view the alternative would be open to me, that concession having been made I consider it appropriate to deal with the contraventions under subdivision 5.

25I would not wish any of the parties to misunderstand the implications of that decision. It does not in any sense indicate that the Court does not take the contraventions seriously; rather, it acknowledges the possibility that even now the respondents might think better of their conduct, and also bears squarely in mind the point emphasised by the Full Court that the focus of a court in dealing with a contravention application must be in making orders which will enforce future compliance with its orders.[2] The emphasis is upon the individual party and orders, and future compliance, rather than punishment for its own sake, or some general policy of deterrence.

[2] McClintock & Levier (2009) FLC 93-401; see also Oswin & Oswin [2019] FamCAFC 164, [37].

26Having made that determination, it is appropriate to summarise the submissions of each of the parties as to the appropriate orders to be made to enforce future compliance.

27The applicant submitted that each of the respondents should be ordered to enter into a bond of $1,000 for a period of 1 year.

28The respondent mother submitted that while she had the capacity to pay a bond, all her money is applied to the benefit of the children. When I pointed out that no payment would be required unless she again contravened the orders her response was to say that she “probably will”. She submitted that the father does not earn enough to cover a bond.

29The father did not make any submissions. I made it clear to him that he was welcome to do so, but that it was otherwise open to him to simply adopt the submissions made by the mother.

30In my view, the appropriate course is to impose a bond on each of the respondents, to compel their compliance with the primary orders for a period of 12 months. Bearing in mind the submissions made as to the father’s finances in particular, limited though those submissions were, I consider $500 each a more appropriate amount than that sought by the applicant.

31While I have considered the possibility of directing the respondents to attend a Post Separation Parenting program, in the circumstances of this case as outlined both in these short reasons and in the primary judgment, I see no utility in that course. Nothing that I have heard from any party this morning would deviate me from that view.

32As the progression of the children’s time contemplated in the primary orders has not taken place, I similarly see no particular utility in ordering compensatory time, nor do I regard it as being in the children’s best interests to do so. Rather, I consider it preferable to make orders which will meet the intent of the primary orders.

33I have considered also the possibility of adjourning the proceedings pursuant to s 205O(1)(c) to allow any of the parties to apply for a further parenting order; while at the conference on 6 November 2019 the respondents indicated their intention to file such an application, they have not done so to date. They did not appeal the primary order, instead choosing simply not comply with it. While of course it remains open to them to commence further proceedings if they consider it appropriate, I have no means of knowing at present whether issues arising from the principle summarised in Rice v Asplund would properly arise.[3] Accordingly, I consider it inappropriate to adjourn the contravention proceedings pursuant to the relevant subsection, and I note also that no party sought that I do so.

[3] Rice & Asplund (1979) FLC 90-727.

34In reaching that view, I have as required by s 205O(6) had regard to the fact that the primary order was made following a trial and not by consent, that the respondent mother were represented at that trial but the applicant was not, and the length of the period between the making of the primary order and the occurrence of the various contraventions set out in the contravention application.

35No relevant expenses or costs were brought to my attention for consideration pursuant to subsections 205O(1)(e), (f) or (g).

36Section 205P(5) requires that if a court proposes to require a person to enter into a bond it must, before making the requirement, explain to the person in language likely to be readily understood by that person the purpose and effect of the proposed requirement and the consequences that may follow if the person fails to enter into the bond or, having entered into the bond, fails to act in accordance with it.

37I record that during the course of the submissions of the parties I advised them that I was contemplating requiring the respondents to enter into a bond, and that to the extent possible I provided the explanation required by s 205P(5). I heard from the parties, and from the respondents in particular, as to their financial circumstances prior to considering the imposition of the bond. I took into account not only those submissions, but also the reality that while I propose to require each of the respondents to enter into an individual bond, their household resources are pooled, and any impact on those finances may in turn impact upon the children.

38Having determined those matters, I have considered further whether the primary orders should be varied at this point, as permitted by the legislation in the context of the contravention proceedings and without the need for separate application.

39I have concluded that it is in the best interests of the children to vary the primary orders so that they operate from this point forward in the manner in which they were initially intended to operate. In short, the intention of the orders was to achieve a progression in the children’s time with the applicant grandmother over a relatively short period, with them resuming an arrangement whereby they spent regular time with her on Friday afternoon before progressing to an extension of that time to overnight. A failure to vary the orders at this point would mean that, by their terms, the children would immediately begin spending time with the grandmother overnight without the contemplated progression; given the history of the matter both before and after trial, and the ongoing antipathy between the parties, that would not only be contrary to their best interests (which is the only relevant consideration) but additionally would simply invite further contravention of the primary orders.

40I am also prepared to make the variations to which the parties have agreed this morning. Rather than picking up the children at school, the grandmother has indicated her willingness to accept the proposal of the parents that she collect the children from their home and return them there at the end of each relevant period. While a slight adjustment of times is not agreed, I propose to make it so that the change in handover arrangements does not reduce the children’s time with the grandmother.

41The parents also raised the issue of the children’s sporting commitments. The grandmother indicated her willingness to be required by order to take the children to those commitments if they arise during her time with them. I will vary the primary order to that end.

42Each party suggested other variations to the primary orders, some more substantial than others. There was insufficient evidence to persuade me that any of those changes should be made in the context of the present proceedings.

Orders

43There will be the following orders:

1.The Respondent father having this day been found by the Family Court of Western Australia to have contravened without reasonable cause an order made by this Court on 23 July 2018 is hereby ordered to enter into a bond in the sum of $ 500, for a period of 12 months, pursuant to the provisions of section 205P and upon the conditions set out below:

(a)to abide by the provisions of the orders of the Court made on 23 July 2018 as amended this day for a period of 12 months;

(b)such bond to be without surety.

2.The Respondent mother having this day been found by the Family Court of Western Australia to have contravened without reasonable cause an order made by this Court on 23 July 2018 is hereby ordered to enter into a bond in the sum of $ 500, for a period of 12 months, pursuant to the provisions of section 205P and upon the conditions set out below:

(a)to abide by the provisions of the orders of the Court made on 23 July 2018 as amended this day for a period of 12 months;

(b)such bond to be without surety.

3.The orders made by this court on 23 July 2018 (“the primary orders”) be and are hereby varied pursuant to section 205G of the Family Court Act 1997 (WA) as follows:

(a)the period of eight weeks referred to in paragraph 1(a) of the primary orders will commence at 3.10 pm on Friday, 29 November 2019, at which time the children the subject of the primary orders are to be made available by the respondents for collection by the applicant from [their home] at 6.10 pm by the applicant returning the children to the said address;

(b)all periods the children are to spend with the Applicant pursuant to paragraphs 1(a) and 1(b) of the primary orders are to commence at 3.10 pm and conclude at 6.10 pm where the orders do not provide for overnight time, and otherwise commence at 3.10 pm Friday and conclude at 9.40 am the following day;

(c)the operation of paragraph 1(b) of the primary orders will commence on Friday, 24 January 2020, on which day the children the subject of the primary orders are to be made available by the respondents for collection by the applicant from their home at 3:10 pm and are to spend time with the applicant until 9:40 am on Saturday, 25 January 2020, with the applicant to return the children to their home;

(d)handover for all periods the children are to spend with the Applicant is to occur at their home;

(e)the grandmother must ensure that when spending time with her pursuant to these orders the children punctually attend any pre-arranged sporting commitments;

(f)for the avoidance of doubt, the entirety of the primary orders otherwise remains in full force and effect other than as varied in this order.

4.The contravention application filed on 25 March 2019, and the Form 2 application of the applicant grandmother filed 25 March 2019 otherwise be and are hereby dismissed.

These reasons are the reasons for decision delivered on 26 November 2019, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM
Associate

28 NOVEMBER 2019