Wylie and Wylie (No 2)

[2014] FamCA 1132

FAMILY COURT OF AUSTRALIA

WYLIE & WYLIE (NO. 2) [2014] FamCA 1132

FAMILY LAW – ORDERS – CONTRAVENTION – Where six specific contraventions alleged – Where specific contravention of a general order alleged – Where court found without more the specific allegations were not enough to establish a breach of the general order – Where the court found that on the balance of probabilities it could not be said that the father made no reasonable attempt to comply with the order – Where in the alternative the court found that the father had a reasonable excuse for contravening the order – Where the amended application contravention is dismissed.

FAMILY LAW – ORDERS – CONTRAVENTION – Where one contravention alleged – Where drafter of the application for the contravention departed from the wording of the order from ‘do all acts and things’ to allege a failure to do ‘any and all acts and things’ – Where the mother accepted the father had done something in compliance with order – Where the court found it could not be said that on the balance of probabilities the father made no reasonable attempt to comply with the order.

FAMILY LAW – ORDERS – CONTRAVENTION – Consideration of section 70NBA – Where section 70NBA allows a court to make an order varying a primary order even if the court does not find that a person committed a contravention – Section 70NBA not a general opportunity for parties to seek to completely re-agitate issues which have no relationship to or bearing on the contravention application – Where the court considered the orders the mother sought dramatically changed the parenting regime and as such were not within the courts power to vary under section 70NBA.

Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NBA

APPLICANT: Ms Wylie

RESPONDENT: Mr Wylie

FILE NUMBER: TVC 1088 of 2011

DATE DELIVERED: 28 February 2014

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Tree J

HEARING DATE: 2 December 2013
28 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

THE APPLICANT:

Ms Merkin on 2 December 2013

In person on 28 February 2014

THE RESPONDENT: In person

Orders

1. The Applicant’s Contravention Application filed 7 November 2013 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wylie & Wylie 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 TOWNSVILLE

FILE NUMBER:   TVC 1088 of 2011

Ms Wylie

Applicant

And

Mr Wylie

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

INTRODUCTION

1. Before me is an application alleging several contraventions of parenting orders which were made by me by consent on 7 June 2013.  Those orders flowed from a bitterly contested trial that had been conducted before me in February, April and May 2013.  The trial had an unusual course, in that during it a subpoena was issued directed towards a therapist that the mother had seen, the answer to which disclosed the strong probability that the mother had committed perjury in the course of her evidence before me.

2. Although at that point in time the mother and father had both filed notices of risk of abuse, alleging that each represented a risk to the children, perhaps in large part because the matter stood to be determined by questions of credit, and the mother’s untruthfulness was therefore a highly relevant matter to the likely outcome of the trial, the orders which I made on 7 June by consent largely reflected the father’s position.  Those orders saw the children live with the father and spend only supervised time with their mother. 

RELEVANT ORDERS

1. Relevant to these contravention proceedings are orders 8 and 14.  Order 8 provided:

   Both parents shall encourage the children to build meaningful relationships with both the maternal and paternal grandparents and extended families.

2. Order 14 provided:

   Upon compliance with order 13 the father and mother shall do all acts and things necessary to seek funding from the Legal Aid Office Queensland for the conduct of a Legal Aid family dispute resolution conference so as to discuss or attempt to resolve the future arrangements for the children to spend time and communicate with the mother.

ALLEGED BREACHES OF ORDER 8

1. The mother alleges that there were six contraventions of order 8, and her application specifies the details of those six alleged breaches.  They fall into two categories.  The first is not permitting the grandparents to spend unsupervised time with the children.  The second is the failure to allow the maternal grandparents to attend school events in relation to the children.

2. To these alleged contraventions the father denies that he contravened the orders, and, in the alternative, says that he has a reasonable excuse for any contravention in that he did not understand the obligations imposed by the orders to extend to him complying with the several requests made of him by the grandparents. 

3. Section 70NAC of the Family Law Act details the meaning of “contravention of an order.” Subsection (a) relevantly provides two alternatives. The first is an intentional failure to comply with the order. The second is to make no reasonable attempt to comply with the order. Further, section 70NAE sets out the basis upon which a party may seek to argue that they had a reasonable excuse for contravening the order, including in 70NAE(2)(a) that at the time of the alleged contravention the respondent did not understand the obligations imposed by the order that bound him.

4. It will be appreciated that order 8, in the consent orders made by me, was expressed as a general obligation to encourage the children to build meaningful relationships.  Ms Merkin, who on the first day of the hearing of this contravention appeared for the mother, was made aware on numerous occasions of my concerns that to specifically allege six instances which could, if established, be found to comprise an instance of non-encouragement of the children to build relationships, may not individually comprise a breach of order 8.  Order 8, in my view, requires a consideration of the totality of the circumstances, so that, upon balance, the court would need to be satisfied that overall there has been a failure to encourage the children to build meaningful relationships.

5. That is not what this contravention application alleges.  Moreover, notwithstanding that this matter was brought to the attention of Ms Merkin virtually at the outset of the proceedings, no application to amend the application was then made.  Rather, Ms Merkin suggested that the general provisions requiring the court to proceed expeditiously and without complexity meant that I could, in some unspecified way, construe the contravention application as extending to a generalised allegation.  I reject that argument.  In my view, what is required in order to establish a breach of order 8 is an overall failure to encourage.  Pointing to specific instances where it might be said that the father might have been able to do more to encourage of itself, and without more, will not comprise, at least on the basis of the facts here, a breach of order 8.

6. If I am wrong as to the construction of order 8 then it is incumbent upon me to descend to an analysis of the case and, more particularly, the facts here.  The definition of “contravention” is, as I have already indicated, in the alternative, either an intentional failure to comply, or a failure to make a reasonable attempt to comply.  Here it is apparent from the evidence that, on the first occasion when the grandparents sought to spend unsupervised time with the children, the father responded by, in part, identifying the need for there to be a dialogue between himself and the grandparents to seek to allay concerns which he had arising from their past conduct.

7. The grandparents did not take up that offer, and indeed, notwithstanding the fact that that was brought to their attention in successive emails thereafter, it does not seem as though have ever accepted the father’s suggestion that as a precondition to them spending time with the children, there would first need to be a dialogue in order to allay the father’s concerns.  It is, of course, highly unfortunate that the grandparents have not spent time with the children. other than at the Contact Centre on some occasions when the children were spending time with the mother.  However, the impression I have, and I so find, is that each party has adopted a position where they are seeking to dictate to the other the terms upon which they may interact with the grandchildren.  That is unfortunate.  However, as I say, that is apparently what the parties have done.

8. I do not think it could be said that the father made no reasonable attempt to comply with order 8, because he was prepared to, it seems, permit the grandparents to spend time with the children.  However, as a precondition to doing so, he wanted there to be dialogue between he and the grandparents to allay his concerns.  In my view, I could not make a finding, on the balance of probabilities, in relation to any of the contraventions involving a failure to encourage the grandparents’ relationship, that the father had made no reasonable attempt to comply with the order.

9. If I am wrong as to that then I need to deal with the father’s alternative basis for saying that there is no contravention established, namely, that he had a reasonable excuse for contravening the order.  He says that he did not understand the obligations imposed by the order required him to permit the grandparents to do those things which they were seeking to do.  In my view, on the balance of probabilities, accepting that the onus of establishing a reasonable excuse is on the father, I am satisfied that at the relevant time he did not believe that an order requiring him to encourage relationships between the children and the grandparents extended to requiring the grandchildren to spend unsupervised time with their grandparents.  I am therefore satisfied, on the balance of probabilities, that the father had a reasonable excuse for contravening that order.

ALLEGED BREACH OF ORDER 14

1. That then leaves the alleged contravention of order 14.  Order 14 has already been referred to and recited earlier in these reasons.  It will be appreciated that the order requires the father and mother to “do all acts and things” to seek Legal Aid funding for the purposes of the Family Dispute Resolution conference.  Notwithstanding that wording, the drafter of the application for a contravention has alleged that the father failed to do “any and all acts and things”.  Precisely why the drafter chose to depart from the wording of the order is unclear.

2. However, the father is entitled to defend the specific contravention that is alleged.  He asserts, and was not challenged, that in fact he made a telephone inquiry of the Legal Aid office, and during the course of that inquiry he was told by the person he was speaking to that it was unlikely that there would be Legal Aid funding made available for the purpose of a conference, but they would get back to him.  The mother says that he ought to have gone further and made a formal application for Legal Aid.  However, she ultimately accepted that the father did indeed do something necessary to seek funding from the Legal Aid office by making the telephone inquiry.

3. Moreover, I am mindful that the meaning of “contravention” includes “made no reasonable attempt to comply with the order”.  In my view, having made a telephone inquiry of Legal Aid and having been told that they would get back to him, albeit that the prospect of funding was not great, I do not think it could be said, on the balance of probabilities, that he made no reasonable attempt to comply with the order. 

4. Moreover, there is an aspect of futility to this whole complaint, as it is not in dispute that in fact, ultimately, the mother’s application for Legal Aid funding was refused.  Therefore even if I were satisfied that the father had contravened the order it is not a breach of a kind that, in my view, ought attract any penalty whatsoever.  I therefore find that there is no breach of order 14 as alleged.

SECTION 70NBA

1. Although no contravention has been established in relation to any aspect of the mother’s amended application, that is not the end of the matter. By section 70NBA a court may make an order varying a primary order even if the court does not find that the person committed a contravention. In my view, the purpose of section 70NBA is to enable the court to address issues or ambiguities in orders which have given rise to the contravention proceedings. In my view, section 70NBA is not a general opportunity for parties to seek to completely re-agitate issues which have no relationship to or bearing upon the contravention application.

2. The mother handed up to me proposed orders which she sought that I make.  Although by the time she did so she was unrepresented, I understand the likely basis for her seeking that variation is section 70 NBA.  The orders which she now seeks would dramatically change the parenting regime in relation to these children, and specifically would permit the children to forthwith commence spending unsupervised time with the mother, and, indeed, to spend time with the mother during the forthcoming school holidays as well.  Moreover, that regime would continue until 14 July, when the proposed orders would see, as I understand them, the parenting regime evolve into an equal shared care arrangement.

3. In my view, dramatic changes such as that are not within the court’s power to vary under section 70NBA, or at least are not within the court’s power to order in the circumstances of this case. If I am wrong as to that then I would nonetheless, in the exercise of my discretion, decline to make the proposed orders sought by the mother. I would do so because there are many procedures of this court, including the prospect of the appointment of an Independent Children’s Lawyer, the preparation of a Family Report, and the opportunity for the court to be updated in relation to the children’s circumstances generally, which would ordinarily occur before making of final parenting orders.

4. In my view, there is nothing in the material before me which suggests that those procedures should not be followed in this case.  I therefore decline to make the proposed orders sought by the mother.

CONCLUSION

1. Therefore the formal order will be that the mother’s Amended Application-Contravention, filed 13 November 2013, will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 28 February 2014.

Associate: 

Date:  28 February 2014