Zachary and Quick

[2017] FCCA 2870

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZACHARY & QUICK [2017] FCCA 2870

Catchwords:
FAMILY LAW – Contravention – where the Applicant was unable to establish a prima facie case in relation to all alleged contraventions – application dismissed.

Legislation:

Family Law Act 1975, ss.70NAA, 70NAC, 70NAF

Applicant: MR ZACHARY

Respondent: MS QUICK

File Number: PAC 4823 of 2016

Judgment of: Judge Obradovic

Hearing date: 8 August 2017

Date of Last Submission: 8 August 2017

Delivered at: Parramatta

Delivered on: 1 December 2017

REPRESENTATION

Appearing for the Applicant: In person

Appearing for the Respondent: In person

Appearing for the Independent Children's Lawyer: Ms Ryan

Solicitors for the Independent Children's Lawyer: Legal Aid Commission New South Wales

ORDERS

1. The Application – Contravention filed 23 June 2017 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Zachary & Quick is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4823 of 2016

MR ZACHARY

Applicant

And

MS QUICK

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 23 June 2017 the Applicant father filed an Application -Contravention alleging:

   Count 1:

   That on 3 December 2016 at 9.15am at (omitted) Contact Service, (omitted) the Respondent mother from the 3^rd to 17^th of December, refused to pay the required fees and participate in the procedures to facilitate Order 3 in breach of Orders 3, 4 and 5 made by consent on 28 November 2016.

   Count 2:

   That on 31 January 2017 at 2pm at (omitted) Day Care, (omitted) the Respondent did change the pre-school for X and Y without notice or consultation in breach of Order 1 made by consent on 28 November 2016.

   Count 3:

   That on 9 February 2017 at 2pm at the Family Court of Australia, Parramatta the Respondent did cause the change of residential address for X and Y without notice or consultation in breach of Order 1 made by consent on 28 November 2016.

   Count 4:

   That on 9 February 2017 at 2pm at the Family Court of Australia, Parramatta the Respondent did approach the father in unlocked safe room to intimidate in breach of Order 5 made by consent on 28 November 2016.

   Count 5

   1.That on 29 April 2017 at 9am at (omitted) Contact Service, the Respondent without reasonable excuse failed to present for changeover and allow the Applicant to spend time with the children Y and X in breach of Order 3 made by consent on 28 November 2016.

2. The Respondent mother entered a plea of not guilty to each of the alleged contraventions.  The father’s case in respect of the alleged contraventions was heard on 8 August 2017.

3. The father bears the onus of proof in respect of the alleged contraventions. The standard of proof is set out in s70NAF. The section in itself is difficult to apply in that it requires the Court to apply a different standard of proof depending upon the type of penalty that might be considered if the contravention is found to have been proved.

4. In this instance, the Court has assessed the father’s evidence on the balance of probabilities.

The Law Dealing with Contraventions

1. The relevant legislative provisions dealing with contraventions of parenting orders are found in Part VII Division 13A Family Law Act1975 (Cth).

2. Division 13A is organised in a progression from lesser to greater seriousness, as explained in s70NAA. In summary it deals in turn with:

   1.Preliminary matters, including definitions and a provision relating to the standard of proof (s 70NAF): subdivision A;

   2.Varying parenting orders, which can be regarded as the least punitive response to the problem: subdivision B;

   3.Contravention alleged but not established - provision for costs orders against the person bringing the proceedings: subdivision C;

   4.Contravention established, but a reasonable excuse - the Court can make orders for compensation for time lost, and costs orders: subdivision D;

   5.Less serious contraventions, and no reasonable excuse - the court has various powers, for example orders for compensation for time lost, orders for post-separation parenting programs, bonds, and costs: subdivision E;

   6.More serious contraventions, and no reasonable excuse - the court has more punitive powers, including fines and imprisonment: subdivision F

3. The meaning of “contravened an order” is set out in s70NAC of the Family Law Act1975 (Cth):

   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;

   …

   (emphasis in original)

Previous Orders

1. On 28 November 2016, the Court made a number of orders. Relevantly for the present application, those orders provided as follows:

   The parties shall have equal shared parental responsibility for the children Y and X born (omitted) 2012.

   The children shall spend time with the father each Saturday from 9am until 6pm with changeover to occur at the (omitted) Contact Service at (omitted) to commence 3 December 2016.

   The parties shall by 5pm on 29 November 2016 do all acts and things and sign all documents necessary to contact the (omitted) Contact Service at (omitted) to participate in the intake procedures for changeover to facilitate order 3.

   Unless provided for in these orders herein, pursuant to section 68B of the Family Law Act 1975, each party is restrained from approaching the other and from approaching within 200 meters of their place of residence.

2. The evidence in support of the Application-Contravention was contained in the father’s Affidavit filed on 23 June 2017. The father was cross-examined. [1]

   [1] Although at the time of hearing of the Application – Contravention, the mother had filed an Affidavit on 1 August 2017, the father did not rely on the contents of that that Affidavit in respect of any of the contraventions alleged. The mother’s Affidavit was filed in support of her Application in a Case, which is listed for hearing on 1 December 2017.

Count 1

1. The father relied upon correspondence annexed to his Affidavit dated 10 December 2016 from (omitted) Contact Service stating that the mother was “still not agreeable to pay her share of the fees…” That letter then goes on to say that:

   “Your court orders to not stipulate who pays the cost of changeover. The service agreement stipulates that where the court order do not stipulate who pays the fees that both parties are responsible too (sic) share the costs.”

2. The father submitted that the mother did not comply with the intake procedure in breach of order 4. The letter annexed to the father’s affidavit indeed states that the mother “During the intake procedure… advised that she will not pay the fees for the service as she is not the one wanting to use the Children’s Contact Centre for changeover you are.”

3. The orders are silent as to who is to be responsible for the payment of the fees associated with changeover occurring at the contact centre.

4. The father’s evidence, on the balance of probabilities, does not establish that the mother failed to comply with the intake procedures.

5. The father has not established a prima facie case in respect of this contravention.

Count 2

1. The father’s evidence is that on 31 January 2017, the manager of (omitted) Day Care Centre informed him over the phone that the children were no longer attending the centre. Again, the father says, on 2 February 2017, he spoke with the owner of (omitted) Day Care Centre who confirmed that the children were no longer attending.

2. The father then goes on to say:

   Requests to supply something in writing confirming this was rejected. He later disclosed that [the children]… are attending (omitted) but as casual clients.

3. The father also relied upon the Child Dispute Conference Memorandum dated 9 February 2017 to establish Count 2. On page 2 of that Memorandum, the Family Consultant notes that:

   Ms Quick said that she received legal advice that she was permitted to move the children’s residential location and child care/preschool without Mr Zachary’s knowledge or consent.

   At its highest, this is evidence of what the mother said was the advice she received.

4. All of the evidence in the father’s Affidavit is hearsay.

5. There is no evidence of the father ever attending the pre-school to enrol the children, any evidence of the children’s actual enrolment as at 31 January 2017, the father has not obtained any records from the school through subpoena or otherwise, nor is there any evidence as to how it is said that the mother on 31 January 2017 changed the children’s pre-school.

6. Indeed, on the father’s case the information he received from the pre-school suggests that the children remain attending as casual clients.

7. The relevance of the mother’s Affidavit of 7 March 2017 as annexed to the father’s Affidavit was not identified by the father, although it was referred to in the body of his Affidavit as being evidence in support of this particular count.

8. The father has not established a prima facie case in respect of this alleged contravention.

Count 3

1. The father does not give any evidence as to the children’s address prior to 9 February 2017 and post 9 February 2017. He does not give any evidence that the children’s residential address is in fact different. He simply asserts that this was confirmed by the mother.

2. The father relied upon the Child Dispute Conference Memorandum dated 9 February 2017 to establish Count 2. On page 2 of that memorandum, the Family Consultant notes that

   Ms Quick said that she received legal advice that she was permitted to move the children’s residential location and child care/preschool without Mr Zachary’s knowledge or consent.

   Once again, at its highest, this is evidence of what the mother said was the advice she received.

3. Even if there was such evidence, the children live with the mother pursuant to interim orders made by this Court. It was not explained by the father how a change of residential address[2] is a breach of the order for equal shared parental responsibility for the children.

   [2] The father does not even allege that the mother moved such a distance that it prevents him from spending time with the children in accordance with the orders. The father is completely silent as to the details of the alleged move. 

4. The relevance of the mother’s Affidavit of 7 March 2017 as annexed to the father’s Affidavit was not identified by the father, although it was referred to in the body of his Affidavit as being evidence in support of this particular count.

5. The father has not established a prima facie case in respect of this alleged contravention.

Count 4

1. The restraint in order 5 is that “each party is restrained from approaching the other”. Apart from asserting in his evidence that the mother on 9 February 2017 “did approach protected Father in unlocked safe room to intimidate”, and annexing correspondence between the Court security and the father, there is no other evidence in support of this allegation. What can be gleaned from the correspondence is that the father alleges “an incident occurred between 13.45 and 15.00”. No further details are provided.

2. The father has not established a prima facie case in respect of this contravention.

Count 5

1. Annexure E to the father’s Affidavit is an email dated 28 April 2017 from the mother. In that email she states:

   I am unable to attend tomorrow due to the physical pain of sitting for long periods which driving [to and from changeover]... will cause.

2. The difficulty with the father’s evidence is that he does not say that he attended changeover on 29 April 2017 at the relevant time, and that the mother did not bring the children.

3. While the intention not to attend on 29 April 2017 is apparent on the face of the email, there is no evidence in the father’s case that the mother actually contravened the orders.

4. The father has not established a prima facie case in respect of this contravention.

Conclusion

1. The Court finds that the contraventions have not been established.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date: 1 December 2017