WILSON & MASON
[2012] FamCA 278
•1 May 2012
FAMILY COURT OF AUSTRALIA
| WILSON & MASON | [2012] FamCA 278 |
| FAMILY LAW - ORDERS – Contravention – finding on the balance of probabilities that the respondent contravened the order - reasonable excuse. FAMILY LAW - ORDERS – Variation to parenting order |
| Family Law Act 1975 (Cth) |
| Childers & Leslie (2008) FLC 93-356 Feranti & Connor [2009] FamCAFC 178 |
| APPLICANT: | Mr Wilson |
| RESPONDENT: | Ms Mason |
| FILE NUMBER: | MLC | 6729 | of | 2007 |
| DATE DELIVERED: | 1 May 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 27 March 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | Patricia Samson |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | In person |
IT IS ORDERED THAT
That paragraph 4 of the orders made on 10 June 2010 and paragraph 1 of the orders made on 26 July 2011 be varied such that all telephone calls between the father and the children shall take place between 6.00pm and 7.00pm on each Sunday with the mother being responsible for the facilitation of such telephone calls and the father being available to receive such calls.
That the Contravention Application filed by the father on 14 February 2012 and the Application in a Case filed by the father on 14 February 2012 be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilson & Mason has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6729 of 2007
| Mr Wilson |
Applicant
And
| Ms Mason |
Respondent
REASONS FOR JUDGMENT
This matter was listed for a final hearing before Cronin J on 16 January 2012 but was unable to proceed on that date. There is a significant level of conflict between the parties in this matter which was clearly evident during the proceedings before me and I have no doubt that it is that conflict that is the very genesis of this Contravention Application.
The children the subject of the order which it is alleged the mother has contravened are J (now 10 years of age) and N (now 8 years of age). The children live with the mother.
On 10 June 2011 Cronin J ordered:
that the children communicate with the father by telephone on a weekly basis on a Saturday after they have completed their soccer obligations and the mother shall facilitate such telephone call to the father notwithstanding any intervention order to the contrary.
On 26 July 2011 His Honour varied that order to provide that all telephone conversations between the father and children referred to in the order of 10 June 2011 take place at 6 pm on each Sunday, with the mother being responsible for the facilitation of such telephone call and the father being available to receive such call.
The father alleges that on each of the 23 October 2011, 30 October 2011, 6 November 2011, 20 November 2011, 27 November 2011, 1 January 2012, 8 January 2012 and 29 January 2012 the mother, without reasonable excuse, failed to facilitate the telephone call between the children and the father pursuant to the order made 26 July 2011.
Legal Principles
Section 70NAC of the Family Law Act 1975 (Cth) provides that a person who is bound by an order is taken to have contravened that order when he or she has:
(i)intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order; or
otherwise — he or she has:
(iii)intentionally prevented compliance with the order by a person who is bound by it; or
(iv)aided or abetted a contravention of the order by a person who is bound by it.
Section 70NAE sets out the circumstances in which a person is taken to have had a reasonable excuse for contravening an order including but not limited to:
(a) at the time of the contravention not knowing or understanding the obligations imposed by the order; or
(b) believing on reasonable grounds that not allowing the child to communicate with the other party was necessary to protect the health and or safety of the respondent or the child.
The standard of proof for the purposes of this application is the balance of probabilities. The father bears the onus of proof of establishing that the order has been contravened and the mother bears the onus with respect to establishing that there was a “reasonable excuse” for any contravention.
Alleged Contraventions
The father’s evidence was that, on each of the dates upon which he said the mother contravened the orders, he had his telephone available and charged, ready to receive a telephone call, but that the mother did not call. He relied upon the copy letter of 1 December 2011 from his solicitors to the Independent Children’s Lawyer (“ICL”), Mr Edney, and the mother’s email to Mr Edney of 7 December 2011, in support of his case that the mother had contravened the order. The father’s solicitor wrote to the ICL advising him that the mother had failed to facilitate telephone time between the father and the children pursuant to the order on each of the 23 October, 30 October, 6 November, 20 November and 27 November 2011 and asking the ICL to remind the mother of her obligations pursuant to the orders. The mother responded as follows:
To David, I am aware that I have not facilitated telephone contact on some of the dates shown. I have not been facilitating telephone contact on the days when [the father] has had contact with the children. I am aware that this has been my error and will rectify this. On any other occasion when it has not been possible to contact [the father] at the said time the children have contacted him after the fact….
The mother’s evidence was that she was aware of the orders and her obligations pursuant to those orders, however that on each of the 23 October, 6 November and 20 November she did not facilitate the telephone contact because she said that the father had spent supervised time with the children on those dates, which was often stressful for the children, and that she was reluctant to make further telephone contact that day. The father’s evidence was that it was possible that he had had supervised contact on those days, although he said he “can’t rely on [Ms Mason] [the mother] telling the truth.” When the father was re-examined, he provided a number of dates on which he said he had spent supervised time with the children, however it was clear that he was doing the best he could on the basis of dates he said he was given by a clerk at his solicitor’s office. One of those dates was 29 January 2012 and in evidence he said it was possible that he had not spent time with the children on that day, although it ultimately became clear that in fact he had. It was clear from his evidence that he did not have any independent recollection of the dates upon which he had spent supervised time with the children and was not certain that the dates provided to him by his solicitor’s clerk were in fact accurate. The mother disputed that the father had in fact spent supervised time with the children on some of the dates which were provided by the clerk in the father’s solicitor’s office.
The mother’s evidence was that, because of the father’s abuse and denigration of her and his ranting and raving in front of the children, the supervised time with the children was often stressful for them. The father’s response to the mother’s allegation that he denigrated her was that denigrating the mother was:
One of the things I try not to do because [the mother] is inconsistent and I have to excuse her behaviour to them in the kindest way I can.
The father, on many occasions during the proceedings, did in fact what I would describe as ‘rant and rave’ and make abusive comments both to and about the mother. Notwithstanding my many requests, both to his solicitor and to the father directly, that the father conduct himself courteously and not interject and interrupt the proceedings, he was totally unable to control or moderate his behaviour. The father left the Court on a number of occasions during the proceedings. For example, on one occasion the father stood up in Court behind his solicitor during the mother’s cross examination and, despite my request that he not interrupt her evidence, said:
I can’t sit by and listen to lies, outright lies. She has no … she can’t substantiate anything she says and she just lies directly to the Court and for five years I’ve said it’s because of her mental health issues that she won’t get treatment for and it is, it’s again the same thing… she puts herself in legal peril, I’m the one who protects her, from her own bloody perjury, an application for contempt will be made as the only way of getting this Court to understand this person continually lies, because you let her get away with it
The father then exited the Court. As I pointed out to the father’s solicitor, the father’s behaviour during the proceedings tended to confirm, and was consistent with, the mother’s evidence about his behaviour towards her and in the presence of the children. On the last of those occasions when the father left the court I stood the matter down so that his solicitor could obtain further instructions from him and I was subsequently advised that she had received instructions to proceed in his absence.
When the father gave evidence he was evasive and argumentative. Notwithstanding that he was represented and his solicitor had not objected to a particular question, the father would himself frequently object, questioning the relevance of the questions he was being asked and taking the opportunity to argue his case and criticise the mother. Throughout the proceedings the father was preoccupied with the ongoing conflict rather than the specific allegations in relation to the contravention application. In that sense his evidence was general rather than specific to those contraventions. When the mother put to the father her version of events, he often responded saying that he didn’t know or didn’t remember or that the mother’s version of events was possible. His answers left me with little confidence in the accuracy of his recollection of events or his evidence about those events.
An illustration of the flaws in the father’s evidence was that on each occasion in relation to which he claimed the mother had contravened the order and not facilitated contact, he claimed that he had his phone available and charged, when in my view that was clearly not the case. The mother’s evidence was that on 1 January 2012 she did attempt to facilitate the telephone call between the children and the father but that the father was camping and did not have mobile phone coverage. This had a ring of truth to it, as it was clear from the evidence that it had not been possible to contact the father for the purposes of confirming arrangements for him to spend supervised time with the children on the following Wednesday. The father ultimately conceded that it was possible that on 1 January 2012 when he was away camping he may have been out of range, and he did not proceed with the contravention in relation to that date. However it was not until well into the case that he made this concession.
Although on occasions the mother also used her time in the witness box to make submissions rather than answer the questions she was asked, perhaps not uncommon practice for litigants in person, I generally found her to be an honest witness. She clearly made an effort to remember the details in relation to the particular incidents about which she was questioned and was willing to make concessions when she could either not remember what had occurred or when she was asked a question which she might have perceived to be detrimental to her case. One example of her detailed recollection of events was when she was asked questions about the phone call she asserted the children made by landline on 8 January 2012. She was able to clearly identify the particular incident by reference to the fact that this was the first phone call after the occasion when both she and the children had been concerned because the father had missed an occasion of supervised time. The mother’s evidence in relation to the father not spending time with the children, which was quite detailed, was also relevant to the question of whether or not his phone was out or range on 1 January 2012, as it supported her case that he had been out of range and had not received notification of the arrangements made for him to spend time with the children.
Alleged contraventions on 23 October 2011, 6 and 20 November 2011
I am satisfied on the balance of probabilities that the mother contravened the order on each of the 23 October 2011, and 6 and 20 November 2011. In fact, the mother acknowledged that to be the case. I am, however, also satisfied that on each of those occasions the mother had a reasonable excuse for not facilitating the children’s telephone call to the father.
Firstly, I accept the mother’s evidence that the father had spent supervised time with the children on each of those dates. Secondly, it is clear from the email sent by the mother to Mr Edney that she believed, even if mistakenly, that, as the father had spent time with the children that day, she was not required to facilitate a phone call that evening. Whilst the mother may have understood generally the obligation imposed by the order, the email and her evidence make it clear that she did not understand that, in circumstances where the father had spent time with the children that day, she was still required to facilitate the children making a call to the father that evening. Although her belief that she was not required to facilitate telephone time between the children and the father on the days when the children had spent supervised time with the father might not be correct, I find that she honestly believed that to be the case and her belief was in all of the circumstances reasonable. Finally, I also accept the mother’s evidence that the father’s behaviour could be stressful for the children and that in those circumstances it was not in their best interests that they have telephone communication with the father immediately after having spent supervised time with him. In those circumstances I find that the mother had a reasonable excuse for not complying with the order on each of the 23 October 2011, 6 November 2011 and 20 November 2011.
Alleged contraventions on 30 October 2011 and 8 January 2012
In her email to the ICL of the 7 December 2011 the mother asserted that on those occasions when it had not been possible to contact the father at the exact time the children contacted him “after the fact”. The mother’s evidence was that the children had a lengthy telephone conversation with the father on 30 October 2011 and the mother produced mobile phone records which showed a mobile phone call to the father’s mobile phone on that date of some 894 seconds. According to those records that call was made at 6.32 pm on 30 October 2011. While the father ultimately conceded that he may have received that call, it was his case that the mother had contravened the order because the call had not been made at the precise time of 6.00pm. Arguably, if his case is correct, even a call made slightly before or after 6.00pm contravenes the order.
The mother’s evidence was that on 8 January 2012 at 6.43 pm she facilitated the children’s call to the father. She described terminating the call after hearing the father denigrating her to the children. She initially described that occurring when the children first spoke to the father, but later recalled that after the initial mobile phone call she facilitated a second call between the children and the father by landline. She said she had not brought her landline phone records with her because she had not believed she would need them. As I previously described, the mother had a very clear and detailed recollection of the events on that date. The father’s response on the other hand, when asked about the further telephone call, was that he “didn’t know”. However he also disputed the mother’s allegation of what she overheard him say on the phone, which tends to confirm her evidence that the conversation took place, if not the content of that conversation with the children. In these circumstances and on the balance of probabilities, I accept the mother’s evidence.
It was the mother’s case that there had to be some flexibility. It was her evidence that there were numerous reasons why the call might not be made at exactly 6.00pm and she gave various examples. These included simple explanations like the children being outside playing or having their dinner. She also gave evidence that if she happened to be in the car with the children at the relevant time, she would not make the call because she did not think it was appropriate for the children to have to speak to the father in her presence. She also gave evidence that the father was himself not always available exactly at 6.00pm each Sunday to receive the children’s calls and that there similarly needed to be some flexibility with respect to his availability.
In Feranti & Connor [2009] FamCAFC 178 the Full Court at [120-121] found that the Honourable trial Judge, Watt J, had not been in error in finding that the wife in that case had not contravened the orders and the very fact that she had made the calls albeit outside that time band “negated any suggestion that she had ‘intentionally failed to comply with the order, or made no reasonable attempt to comply with the order” (Feranti & Connor [2007] FamCA 1446 at [97]).
The very fact that the mother made the calls on 30 October 2011 and 8 January 2012, albeit not at exactly 6.00pm, flies in the face of the father’s case that the mother intentionally failed to comply with the orders or made no reasonable attempt to so comply. The mother has demonstrated a clear commitment to meeting her obligation to facilitate telephone time between the father and the children. In circumstances where it is clear from the evidence that the mother facilitated the children’s calls to the father on the required day, albeit not at the exact time, and in circumstances where that call was made within a hour of the specified time, I am satisfied that the mother has made a reasonable attempt to comply with the orders and find accordingly that she has not contravened the order.
Alleged contravention on 29 January 2012
The mother conceded that she had not facilitated a telephone conversation between the children and the father on this date. The children had spent supervised time with the father earlier that day, however this was not the reason why the mother said she had not facilitated the telephone call. It was the mother’s case that she and the children were on holiday at Wilson’s Promontory and had not had mobile coverage. I accept her evidence. In circumstances where the mother has consistently taken steps to facilitate the children’s telephone calls to the father in accordance with the intent of the order, I conclude that if there had been mobile coverage the mother would have facilitated a telephone call between the children and the father on this date. In all of the circumstances I am satisfied on the balance of probabilities that the mother had reasonable excuse for contravening the order.
Alleged contravention on 27 November 2011
As previously noted, it was the father’s evidence that, on each occasion when it was alleged that the mother had contravened the orders, he had had his telephone available and charged and ready to receive a call, although he ultimately conceded that this may not have been the case at least with respect to 1 January 2012. The father did not give specific evidence with respect to this particular alleged contravention of the order on 27 November 2011 and his evidence generally was unclear and uncertain.
The mother, having demonstrated that she had a clear and detailed recollection of events, readily conceded that she could not recall whether on this occasion she had facilitated the children calling the father or, if she had not, the reason why she had not. The mother did concede that it was possible that the call had not occurred, but stated that she had no specific recollection of the call not being facilitated.
The husband bears the onus of proof of establishing that the mother contravened the order and on the evidence I have before me I am not satisfied that the father has met that onus. I am not satisfied on the balance of probabilities that the mother contravened the order.
The father’s application to reinstate the application for contravention filed 20 May 2011
Although the parties did not require formal reasons in relation to my dismissal of the father’s application in a case, filed 14 February 2012, which was an application to reinstate the contravention application filed 20 May 2011, I have made orders dismissing that application and so, for the sake of completeness, will deal with the issue briefly. The purpose of the enforcement provisions of the Family Law Act 1975 (Cth) relating to parenting orders, in particular Division 13A of Part VII, is to ensure compliance with orders. The contravention which the father applied to have reinstated relates to the mother’s alleged contravention of orders of 17 January 2011, which have now been suspended. In circumstances where the orders the subject of the contravention application have been suspended, compliance with those orders cannot be a realistic outcome of the application, and indeed, compliance was not sought by the father in this case. The solicitor for the father submitted that the contravention application should be heard for the purpose of ‘acknowledging’ any potential contravention by the mother. Division 13A of Part VII is directed at enforcement and not ‘acknowledgment’, and in my view to entertain the application would be an inappropriate use of Court time.
Conclusion
The compliance regime in the Act provides a number of options, including options that are open to the Court in circumstances where the alleged contraventions are not made out. In this case, the alleged contraventions of the orders on the 30 October 2011, 27 November 2011, 1 January 2012, 8 January 2012 and 29 January 2012 are not made out.
Even though pursuant to s70NCB I have the power to make an order for costs against the father in circumstances where the alleged contraventions are not made out, the mother in this case represented herself and there is therefore no basis for a costs order in her favour.
I have found that the mother contravened paragraph 1 of the order of Cronin J of 26 July 2011 on each of 23 October 2011, 30 October 2011, and 20 November 2011. In respect of each of these contraventions I find that the mother had a reasonable excuse for contravening the orders.
In Childers & Leslie (2008) FLC 93-356 at 82,329 Warnick J said as follows:
This appeal involves features typical of a great many applications that assert contravention of an order that a child spend time with a parent: the complaint, even if correct, seems a heavy handed, even obsessive reaction — yet, if the incident is the latest in a series (about which there will commonly be mainly subjective comment, irrelevant to the particular proceeding) perhaps any exasperation of the complaint is at least understandable; secondly, the “excuse” offered by the respondent will seem “fair enough”, at least not to be behaviour that is out to attract punishment; and finally, whatever the outcome, it will seem unlikely to contribute to any real diminution in the particular family’s conflict.
This description is particularly apt in a case such as this one. Even if I had not found that the mother had a reasonable excuse, the contraventions would in my view be described as “less serious” contraventions. There is no basis for a finding that the mother has “behaved in a way that showed a serious disregard for … her obligations under the primary order.”
Pursuant to s70NDB, in circumstances where I find that a party has contravened an order which resulted in the other party not spending time with the child, but that party proves that he or she has a reasonable excuse for doing so, the Court may make a further parenting order compensating the party for that lost time. In circumstances where the father had spent time with the children on the day in question I do not consider it appropriate to make such an order. I can, pursuant to s70NDC, also consider making an order for costs against the father. For the reasons already given I do not propose to make an order for costs against the father.
I can also, pursuant to s70NBA, vary the parenting order, whether or not the mother is found to have contravened the order. In so doing, I must regard the interests of the children as the paramount consideration. I am conscious of the conflict and the nature of that conflict in this case. Unfortunately, the order in this case, which requires a telephone call at a particular hour, which no doubt was made with the best interests of the children in mind, appears to have only heightened the level of conflict. Both parties appear to have mobile phones, so there is no need for either party to sit by the phone to either make or receive a call. In those circumstances and in the hope of avoiding further conflict, I propose to vary the order to provide a period of time during which the mother can facilitate the children’s call to the father, to provide that the calls made pursuant to paragraph 4 of the orders of 10 June 2011 are to be made between 6.00pm and 7.00pm each Sunday with the mother being responsible for the facilitation of such calls and the father being available to receive such calls. I am hopeful that this will address what appears to be a need for some flexibility in meeting the children’s needs to speak to the father and to manage what are the normal demands of family life.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 1 May 2012
Associate:
Date: 1 May 2012
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