Withers and Russell

[2017] FamCA 1145

FAMILY COURT OF AUSTRALIA

WITHERS & RUSSELL [2017] FamCA 1145

FAMILY LAW – ORDERS – Contravention – Where the father filed two Application-Contraventions – Where Court satisfied the first contravention is established – Where the mother failed to return the child’s passport to the father – Where Court not satisfied the second contravention is established – Where the order did not specify the mother had to provide the father her itinerary within a set time period – Ordered the mother enter a good behaviour bond for six months

Family Law Act 1975 (Cth) ss 70NAF, 70NBA, 70NDA, 70NEA, 70NFA
Family Law Rules 2004 (Cth) r 21.08

APPLICANT: Mr Withers

RESPONDENT: Ms Russell

FILE NUMBER: CAC 223 of 2015

DATE DELIVERED: 23 November 2017

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 23 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

1. For the contravention of Order 36 made on 20 September 2016 without reasonable excuse, pursuant to Division 13A of Part VII of the Family Law Act, the respondent mother shall, within 28 days hereof, enter into a good behaviour bond upon the following conditions:

   a.The bond shall be without surety and without security;

   b.The mother must be of good behavior for the duration of the bond, which shall include compliance with all existing parenting orders; and

c.The bond shall be for a period of six months, commencing on the date the mother enters into the bond.

1. In relation to the orders made between the parties on 20 September 2016, Order 14 thereof is discharged and in lieu thereof an order in the following terms is substituted:

14.For the purpose of implementing Order 13 hereof:

a.The husband may request the wife in writing to provide information about the date, time and place of her arrival into and departure from Australia; and

b.The wife shall provide such information in writing to the husband not later than 14 days prior to her arrival into Australia.

1. Otherwise:

   a.The Application-Contravention filed on 27 February, 2017 is dismissed; and

   b.         The Application-Contravention filed on 8 June, 2017 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: CAC 223 of 2015

MR WITHERS

Applicant

And

MS  RUSSELL

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. Pending before the Court are the following two Applications-Contravention, brought by the applicant father against the respondent mother:

   (a)The Application-Contravention filed on 27 February 2017 (but only in respect of count 1, because counts 2-4 inclusive were determined by orders made on 27 April 2017, at which time the hearing in respect of count 1 was adjourned); and

   (b)The Application-Contravention filed on 8 June 2017.

2. In support of the alleged contraventions, the father relied upon his affidavits filed on 27 February 2017 and 8 June 2017 (though in respect of the latter affidavit, paragraphs 5-7 inclusive and the annexures referred to therein were struck out on the mother’s objection).

3. The mother denied both contravention allegations. She cross-examined the father and gave oral evidence in her defence.  She was, in turn, cross-examined by the father. 

4. The first contravention allegation is sustained, but the second allegation is not, for the following reasons.

Background

1. The parties are the parents of two children, now aged eight and six years respectively. 

2. The parties’ past litigation over the children was concluded when Watts J made final orders under Part VII of the Family Law Act 1975 (Cth) (“the Act”) on 20 September 2016. Under those orders, the children live with the father in Australia, while the mother lives in the United States of America.

3. Both parties have complaints about the way in which the orders either have or have not been implemented. However, for present purposes, the father’s complaints relate to the mother’s alleged failure to:

   (a)Deliver the youngest child’s passport to him, under Order 36; and

   (b)Provide to him, in response to his request, evidence about her travel to Australia, as required by Order 14.

Adjournment

1. Both parties attended the contravention hearing by telephone. The father was in Sydney, NSW and the mother was in the USA.

2. Neither party was legally represented. 

3. Before the hearing commenced, the mother applied for an adjournment. Her application was refused and these are the reasons why. 

4. The mother advanced three reasons for the adjournment:

   (a)Her medical condition;

   (b)She maintained she had not been able to prepare adequately; and

   (c)She had no legal representation.

5. There was no evidence before the Court of the mother’s sufferance of any medical condition which would impede her attention to the hearing. She said she could get it but, significantly, she did not have it because she did not procure it in advance. In any event, when the trial proceeded, she actively participated by cross-examining the father, giving evidence-in-chief herself, submitting to cross-examination, and making submissions. There was no outward sign of her being impaired in any way.

6. The mother had plenty of time to prepare for the hearing. The first allegation against her was made by the father in February 2017 and the second allegation was made in June 2017. It is now November 2017. The mother was aware, from orders made on 11 August 2017, that the proceedings were adjourned until today for hearing. Indeed, the hearing was adjourned on that earlier occasion, at her written request, over the father’s objection.

7. The absence of legal representation was not an impediment which caused the mother any greater prejudice than that suffered by the father. He also lacked legal representation. Neither was legally represented at a prior contravention hearing between them, concluded in April 2017.

The Law

1. The consequences of a party’s failure to comply with Court orders affecting children are prescribed by Division 13A of Part VII of the Act.

2. The Act prescribes two levels of sanctions for contraventions of orders without reasonable excuse. The first category falls under Sub-division E and the second category under Sub-division F. 

3. Sub-division E applies if no previous sanction has been imposed for a past contravention, or if the Court considers it is more appropriate to apply that subdivision irrespective (ss 70NEA, 70NFA). 

4. Sub-division F applies if the respondent’s contravention manifests serious disregard of the obligations created by the subject order (ss 70NEA(4), 70NFA(1) and (2)).

5. There was no dispute about either the procedural or substantive law by which this dispute would be determined. The procedure is prescribed by r 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”). The Act prescribes that the alleged contravention of the order must be established by the applicant, but the onus then falls to the respondent to establish the existence of any reasonable excuse. The standard of proof in respect of any reasonable excuse is on the balance of probabilities (ss 70NDA(c) and 70NAF).

Contravention alleged on 27 February 2017

1. Order 36, made by Watts J, on 20 September 2016, provides as follows:

   Within seven days, the wife or her nominee deliver [the youngest child’s] current passport to the husband…

2. The father alleged the mother failed to comply with that order. 

3. Although the mother denied the contravention, her evidence and submissions proved that to be incorrect. She actually admitted her non-compliance. Rather, she contended she had a reasonable excuse not to comply because she does not have the youngest child’s passport in her possession. She contended that, if she does not have the passport in her possession, she cannot surrender it, as required by the order.

4. On many occasions between October 2016 and January 2017 the father requested the mother to surrender the youngest child’s passport to him.  Although the mother alleged she responded to the father, telling him she did not have the passport, the father denied she responded to him until very recently in two emails, dated 12 and 16 November 2017.

5. The mother failed to produce to the Court copies of any emails she allegedly sent to the father before 12 November 2017 to contradict his evidence, in circumstances where she must have known they would be relevant and, perhaps, even very important.

6. Watts J made Order 36 imposing a positive obligation on the mother to surrender the youngest child’s passport within seven days. It is unlikely such an order was made unless his Honour was satisfied the wife was probably then in possession of the youngest child’s passport. The mother admitted she was in possession of both children’s passports as recently as 2015 and that, as late as June 2016, she made an application to the Court to take both children with her back to the USA. She could not remember if she still had the children’s passports in her possession in 2016, but she did not deny it. The father certainly did not have the passports in his possession. Most likely, the children’s passports were in the mother’s possession at the time the hearing concluded before Watts J in June 2016 and when the final orders were made on 20 September 2016.

7. The mother certainly failed to surrender the youngest child’s passport to the father at any time after those orders were made, let alone within the seven days allowed by Order 36. Given the proven breach, the mother bore the onus of proving, on the balance of probabilities, her reasonable excuse, but she failed to do so. She could not say what happened to the youngest child’s passport when, as between the parties at least, it was last in her possession. She failed to respond to the father’s request for the passport to be surrendered in a timely way. She did not reply until November 2017 – many months after the father’s inquiries were made and only days before this contravention hearing occurred alleging she no longer had possession of the youngest child’s passport and disavowing any knowledge of its whereabouts. 

8. The contravention is established by the father. The mother has failed to establish a reasonable excuse. The question of sanction will be addressed shortly.

Contravention alleged on 8 June 2017

1. Order 13, made on 20 September 2016, specifies the times at which the children shall spend time with the mother. 

2. In respect thereof, Order 14 provides as follow:

   For the purpose of [Order 13] the husband is entitled to request and the wife shall then provide, evidence that she will be or is in Australia.

3. The father alleged the mother failed to comply with Order 14 in respect of the children’s holiday visit with her, pursuant to Order 13.7, in the Australian winter school holidays in about June/July of 2017.

4. The mother emailed the father in April 2017, indicating her intention to see the children in Australia in the winter school holidays. 

5. Then, in May 2017, the father emailed the mother requesting details of her planned trip, pursuant to Order 14.

6. The mother responded to the father’s email, but not until about six weeks later, on 29 June 2017. 

7. Accordingly, it was uncontroversial the mother provided the necessary information (or “evidence”, as described in Order 14) to the father about her trip, so their dispute was really confined to whether or not her response was sufficiently timely.

8. Although the order does not say so, the father imputed its intention was to require the mother’s response to his inquiry relatively quickly. On the other hand, the mother says her provision of the necessary information, at any time in advance of her trip, will represent sufficient compliance with Order 14.

9. Self-evidently, the order does not impose any temporal limits on either the father’s request or the mother’s response. In this instance, the last day of the second school term at the children’s school was agreed to be Friday 30 June 2017. The father received the mother’s response the day before, on Thursday 29 June 2017. 

10. The father precipitously filed his Contravention-Application several weeks beforehand on 8 June 2017 and has maintained it ever since. He was in error.  The contravention was not proven and his application will be dismissed. 

11. Nonetheless, remedial action is warranted to avoid a repeat of this pointless and petty dispute. Pursuant to s 70NBA of the Act, Order 14 will be amended to make more specific provision for the parties’ obligations in the following terms:

    14.      For the purposes of implementing Order 13 made on 20 September    2016:

    (a)      The husband may request the wife in writing to provide   information about the date, time and place of her arrival into and                   departure from Australia; and

    (b)      The wife shall provide such information in writing to the husband                 not later than 14 days prior to her arrival into Australia.

Sanction

1. The mother has already been found, once before, to have contravened orders without reasonable excuse, but on that occasion no sanction was imposed (see Order 3 made on 27 April 2017). Division 13A, Sub-division F, therefore arguably applies.

2. However, the current contravention of Order 36 was prosecuted simultaneously with the contravention earlier proven on 27 April 2017, even though heard and determined at a different time. Had the applications been heard simultaneously in April 2017, Sub-division E would have been applied in both instances and so will now be applied.

3. In determining the appropriate sanctions for individual contraventions, the Act prescribes alternative burdens of proof. Before the Court is permitted to impose a fine, community service order, or sentence of imprisonment, the Court must be satisfied beyond reasonable doubt that the grounds for making such an order exist (s 70NAF(3)). Otherwise, satisfaction on the balance of probabilities will suffice (s 70NAF(1)).

4. The mother’s breach without reasonable excuse of Order 36 made on 20 September 2016 has been continuous since the order became operable seven days thereafter, so it has been long-standing, despite the father’s request of her to rectify the breach.

5. Nevertheless, the dispute between the parties over the implementation of Order 36 can be averted relatively simply. Order 18.2, made by Watts J in September 2016, provides the wife is restrained from making an application for an Australian passport or travel-related document in respect of either child. Further, Order 2 made by Watts J invests the husband with sole and exclusive parental responsibility for both children. If an Australian passport currently exists for the youngest child and it is unexpired, the father is at liberty to exercise his exclusive parental responsibility for the youngest child by approaching the Australian immigration authorities to cancel the existing passport and to issue a fresh passport to him for the youngest child. If, as he believes, the mother then continues to possess an expired or cancelled Australian passport in respect of the youngest child, it will be inoperable and will prevent her frustrating the orders made by Watts J in September 2016.

6. The relatively simply way in which the current imbroglio can be resolved between the parties ameliorates the seriousness of the mother’s contravention. Nevertheless, the breach still deserves some form of censure. The parties provided little, if any, assistance settling upon the appropriate sanction. I am satisfied, on the balance of probabilities, it is appropriate to impose upon the mother a good behaviour bond for a period of six months.  

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 23 November 2017.

Associate: 

Date: