S & M

[2006] FMCAfam 117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & M [2006] FMCAfam 117

FAMILY LAW – Contravention of contact order – reasonable excuse – whether respondent understood the obligations imposed by the order – subjective test of understanding – objective test for determining whether court is satisfied that the respondent ought to be excused – observation on meaning of provision.

Family Court Act 1975, ss.70nc, 70ne

Attorney General v Times Newspapers Ltd [1992] 1 AC 191
Derry v. Peek (1889) 14 App. Cas. 337
Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell [2000] FamCA 313
Gaunt, In the marriage of (1978) FLC ¶90‑468; (1978) 4 FamLR 305; (1978) 33 FLR 148
Kelly v Kobelnek [1998] FamCA 296 (unrep)
M & G (No. 4) [2004] FMCAfam 296
Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454
Witten, Re (1887) 4 TLR 36

Williams, Criminal Law (Stevens & Sons Ltd, London: 1961)

Applicant: S

Respondent: M

File Number: MLM 3819 of 2005

Judgment of: Riethmuller FM

Hearing dates: 8 & 9 March 2006

Date of Last Submission: 8 March 2006

Delivered at: Melbourne

Delivered on: 9 March 2006

REPRESENTATION

Counsel for the Applicant: Mr A.J. Crozier-Durham

Solicitors for the Applicant: Calleas le Brun and Burke Solicitors

Counsel for the Respondent: Mr P.J. Cronin

Solicitors for the Respondent: CE Family Lawyers

FINDINGS

1. The Court is satisfied that the wife has, without reasonable excuse, contravened Order 5(c) of the Orders made on 1 December 2005 by Federal Magistrate Connolly by failing to allow the applicant father contact with the children commencing 16 December 2006.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
melbourne

MLM 3819 of 2005

s

Applicant

And

m

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application where the father alleges that the mother has contravened orders of the court made on 1 December 2005 with respect to contact of two children: JTMS, born 24 June 199X, and NTMS born 13 October 199X.

2. The care arrangements for the children are governed by consent orders that were made by the parties on 1 December 2005 which provide for the parties to live with the mother and for the father to have contact.

3. There are two alleged contraventions, the first being that the mother did, without reasonable excuse, refuse, neglect or otherwise fail to allow the father to enjoy telephone contact with the children on 1 December 2005 at 7 pm; and the second being that the mother did, without reasonable excuse, neglect or otherwise fail to allow the father to have contact with the children for the school holiday period, commencing 16 December 2005, at Hoppers Crossing.

First Alleged Contravention

1. The first alleged contravention arises out of the father making a telephone call for contact with the children on the day that the orders were made.  The father's case is that he was speaking to the children by mobile phone and that the mobile phone call was terminated or cut short by the conduct of the mother, and thereby his telephone contact was not able to be enjoyed in terms of the orders.

2. In this case I have had the opportunity of observing both of the parties in the witness box.  It appears clear that the father's understanding of what was happening at the household (where the children were at the other end of the telephone line) is limited to what he was able to hear and glean from listening through the telephone line.  It is also clear that the telephone call was by way of a mobile call and that, for reasons that are not relevant to the contravention, the reception was not of a high quality reception.  He understood the children to be in the shower or shower cubicle of their home.  On the mother's version of events she was sending the children to the shower to prepare for bed as they each got off the phone after having a chance to speak to the father.

3. The father, after the telephone call first ended, attempted to telephone the mother on her mobile on a number of further occasions.  The mother says that the calls did not continue to ring, and having rung for only a very short time on each of those subsequent occasions, effectively precluded her from picking up the call.  The father's version is that the calls were not answered.

4. It appears to me that on the particular occasion the parties were at a stage in the proceedings where emotions would certainly have been running high, having regard to the fact that orders had only that day been made.  Having seen the mother in the witness box, I am of the view that on that occasion she certainly would not have done anything more than what she believed to be the minimum required of her under the court orders.  However, that of itself does not amount to a breach of the orders.

5. On the material available, I am not able to be satisfied to the requisite standard under the Act that the mother did in fact breach the orders or fail to comply with the orders with respect to telephone contact on that day.  It appears to me to be entirely possible that the real problem related to difficulties of connections with mobile phones or not reasonable belief by the mother at the point the telephone call ended that the children had spoken to the father.  In the circumstances I therefore find that that contravention is not proved.

Second Alleged Contravention

1. The appropriate starting point for considering the second alleged contravention is to have regard to the precise terms of the order of the court that the parties had to comply with.  The order stated:

   That the father have contact with the said children as follows:

   (c)for the long summer vacation for the first half in 2005-2006 and alternate years thereafter, and for the second half of 2006‑2007 and each alternate year thereafter, save when the father has the second half, the children shall be returned to the mother by 10 am on the day preceding the start of the new school year.

2. In this case, the only evidence with respect to the end of the school year is contained in a newsletter from the school.  There are two versions of the newsletter, one dated 1 December 2005, and one dated 15 December 2005.  Both parents had seen those newsletters at times before the relevant date, being 16 December 2005.  The relevant part of the newsletters read as follows:

   THE END OF THE SCHOOL YEAR

   The 2005 school year for students will end on Friday, 16 December, 2005 at 3.05 pm.

   Monday 19 December, Tuesday 20 December and Wednesday, 21 December will be curriculum development days for the staff.

3. The father sought to have contact commencing at 3.05 pm on 16 December 2005 on the basis that the long summer vacation had commenced when the school year ended, and that the school year ended at the dates set out in the newsletter.

4. The mother's view was set out in a letter provided on 16 December 2005 by fax to the father from her solicitors, which is in the following terms:

   We refer to your correspondence of this afternoon and are instructed as follows:

   ·The last day of the school term this year is 21 December 2005;

   ·The children have three curriculum days being the 19‑21 December 2005.  They do not form part of the summer vacation.  They are included as part of fourth term;

   ·Accordingly, it is our client's “contact” weekend this weekend.

   ·Your client contacted the maternal grandfather yesterday to advise that he would commence his summer vacation this afternoon.

   ...

5. The letter then goes on with details as to other issues between the parties and sets out some details of other arrangements the mother had put in place with the children between 16 December 2005 and 21 December 2005.

Precise terms of the order

1. The first step in determining a contravention of an order of this type is to make findings as to the precise meaning of the order.  The plain meaning of the order is that for one half of the period that the children are not attending school over the Christmas vacation, the children are to be with the father and for one half with the mother (save for the orders relating to Christmas Day which is a special and separate order, and the return date when the father has the children on the second half of the holidays).

2. I see no basis for interpreting the term ‘long summer vacation’ as meaning anything other than the period between when the children finally cease school before Christmas, and the day when the children commence school again when they return to school in the new year.  In this matter, it is only the end of school date that is relevant, and the terms of the school newsletter make it abundantly clear that the school year for students ended on 16 December 2005.  Having regard to the form of the order I see no difficulty in the interpretation of it in those terms.

3. In the circumstances, where the mother has refused to send the children on contact until 22 December 2005, the mother has not complied with the terms of the orders as drawn. I therefore find, prima facie, there is a case of breach pursuant to section 70nc in that the person bound by the order has not complied with the order. Her non-compliance in this regard was intentional in that she chose not to provide the children to the father until 22 December 2005.

Reasonable excuse for contravening order

1. The next step that I must consider is whether or not the mother has a reasonable excuse for contravening the order. The relevant part of the legislation in this regard is set out in section 70ne of the Family Law Act 1975 which is in the following terms:

   70ne  Meaning of reasonable excuse for contravening an order

   (1)  The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (1a), (2), (3) and (4).

   (1a)  A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a)  the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)  the court is satisfied that the respondent ought to be excused in respect of the contravention.

2. At common law liability for breach of an order is strict: see Attorney General v Times Newspapers Ltd [1992] 1 AC 191 at 217. Indeed, a person could be liable even if they have not read the order. For example in Re Witten (1887) 4 TLR 36, Kay J did not accept a father’s excuse for breaching a children’s order (by allowing his son contact with his friend Ms Dick) where the father claimed that he had not read the order, having been told of its contents by his solicitor, saying:

   If a man did not choose to see the terms of an order which had been made against him, and chose to act without seeing the terms of the order, he must take the consequences.

3. Section 70ne(1a) eases the common law position with respect to children’s orders by requiring the court to consider whether or not the respondent understood her obligations as imposed by the order. 

4. In order to determine whether a reasonable excuse has been shown, an objective test should be applied: see In the marriage of Gaunt (1978) FLC ¶90‑468; Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell [2000] FamCA 313 at [90]. In Kelly v Kobelnek [1998] FamCA 296, an unreported decision of Hannon J of the Family Court of 10 March 1998, the test was explained as:

   …the respondent, in order to exculpate herself from the contravention must establish that she has or had a reasonable excuse according to an objective test namely, whether a reasonable person in the position of the mother would consider on reasonable grounds that she had a reasonable excuse for the contravention. 

5. In Taikato v The Queen [1996] HCA 28; (1996) CLR 454 Brennan CJ, Toohey, McHugh and Gummow JJ said (at 464):

   The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception.

6. In applying an objective test under section 70ne some difficulties present themselves under subsection (1a).  In contrast, it is easy to see that an objective test can be applied with respect to subsection (3) when the consideration is as to whether or not there are reasonable grounds for believing that a deprivation of contact is necessary to protect the health or safety of a person.  Having regard to the way that the subsection is framed, it does not appear to me to be possible to apply a purely objective test (at least to s.70ne(1a)(a)), in that the subsection requires consideration of the state of the mother's understanding of her obligations under the orders.  In this regard, it appears to me that subsection (a) must be interpreted on the basis that I must determine whether or not the mother genuinely held the views that she did as to the nature of her obligations under the orders and if they were different to her actual legal obligations under the orders: see for example M & G (No. 4) [2004] FMCAfam 296 at [18].

7. As Glanville Williams points out (Williams, Criminal Law (Stevens & Sons Ltd, London: 1961) at §71), it is sometimes sought to import an element of reasonableness into the law of mistake ‘for the idea that reasonableness goes to the credibility of the accused as a matter of evidence. To characterise the defendant’s alleged mistake as unreasonable is often a polite way of saying “I do not believe him”.  Similarly, in Derry v. Peek (1889) 14 App. Cas. 337 at 352 Bramwell LJ said:

   I think, with all respect, that in all the judgments there is, I must say it, a confusion of unreasonableness of belief as evidence of dishonesty, and unreasonableness of belief as of itself a ground of action.

8. However, the counterbalance to the respondent’s subjective state of mind in subsection (a) is subsection (b) which requires the respondent to also satisfy the Court that the respondent ought to be excused in respect of the contravention.  Subsection (b) appears to me to require an objective test: that is, that the conduct of the mother in all of the circumstances (including her subjective state of find) must, on an objective basis, present facts or circumstances which make it reasonable that she be excused in respect of the contravention.

9. If this interpretation of s.70ne(1a) were not correct then a person could have bizarre or aberrant views about what a court order may mean (but nonetheless subjectively and genuinely believe their interpretation) and have a reasonable excuse for contravention.  In such situations, whilst they may satisfy subsection (a), they would not necessarily satisfy subsection (b).  Similarly, a person who has chosen not to read an order served on them may not clearly understand their obligations (as occurred in Re Witten), but would not be likely to satisfy subsection (b).

10. Applying an objective test under subsection (b), having regard to all of the circumstances of the particular case, does not mean that the conduct must go so far as to be bizarre or patently absurd so as to leave a person in a position where they did not have a defence under section 70ne(1a).  It is appropriate to consider the facts and circumstances of the particular case in the context of the Act (see Taikato v The Queen [1996] HCA 28) which would usually include:

    (a)the nature of the breach;

    (b)the background and circumstances of the parties;

    (c)the extent to which the person in breach attempted to comply with the orders;

    (d)the extent of any ambiguity in the wording of the orders;

    (e)the extent to which the conduct promoted the interests of the child; and

    (f)the extent to which the conduct reflected practical arrangements and minimised or exacerbated conflict.

11. Applying an objective test to s. 70ne(1a)(b) does not require that the respondent have formed a belief in a manner equivalent to that of the ‘reasonable person’.  Rather, the question is whether the respondent ought to be excused for their breach.  That is, it is for the judge or federal magistrate to apply the objective test to decide whether the particular respondent has shown a reasonable excuse in the circumstances of the particular case, bearing in mind the objects and purpose of the section in the context of the Family Law Act 1975.

The Evidence and Findings

1. I therefore turn to consider the evidence given by the parties in this case.  The evidence of the father bears little upon this question, in that he clearly required the children for contact from 16 December 2005, and he has placed before the court the evidence of the newsletter and the terms of the court order.  The evidence of the mother was that she thought that the curriculum development days were still in some way part of the school year.  There is a difference in wording between the letter that her solicitor wrote, which is to the effect that the ‘children’ have ‘three curriculum days’, whereas the newsletter makes it clear that the ‘staff’ have three curriculum development days. 

2. The mother, in cross‑examination, stated that she ‘would not have taken such a technical view of the orders,’ had the father behaved more reasonably toward her in communications with her.  I also note from the evidence that the mother did not send the children to school on the last day of the school year, saying that she had made other arrangements for them to undertake other activities and that the school had not indicated that it was compulsory for children to attend on the last day of the school year. 

3. It seems unusual to me that children would not attend school on the last day of the school year, given that they invariably have their social group of peers in their classroom and schoolyard and that the last day of the school year is the day to say goodbye to one's peers and friends until after the vacation period.  It appears to me that it is more likely that a significant factor in the children not attending that day was that the mother was aware that the father had stated he would attend on the Friday to collect the children.  However, I do not see that ultimately this assists me in logically determining the mother's state of mind under section 70ne(1a), given that by the time that these events occurred the parties had already set upon their respective courses.

4. I find that the mother has satisfied me that she had a genuine subjective belief that this is the way in which the orders could be interpreted.  I also find that her views in this regard were that she was entitled to take a technical reading of the orders and that on her technical reading of the orders she would be able to withhold the children until 22 December 2005. 

5. I must therefore turn to determine whether or not the court is satisfied that she ought to be excused in respect of the contravention.  Contact orders should not be the subject of an overly‑technical reading.  The plain meaning of an order for contact for the school vacation is to refer to the period from when the children cease school until the period when the children commence school. 

6. Other orders, in far more technical terms, may make reference to other factors, such as gazetted holiday periods or specific dates and arrangements.  However, they are not the form of orders that have been used here: and, generally speaking, the court would not wish to encourage long, detailed and technical orders for children's matters.  There is an expectation that the ordinary, plain meaning of orders will be fulfilled by parties. 

7. I do not see any real argument as to the ordinary and plain meaning of these orders: they refer to a vacation period.  The newsletter, which is the only evidence relating to the end of the school year dates, plainly says that the school year ends on 16 December 2005.  In these circumstances I find that on an objective basis a reasonable person would not have adopted the technical reading of the orders that the mother has adopted and imposed upon the father. 

1. The respondent set out to impose her own technical reading of the orders to limit the father’s contact.  The conduct was not aimed at promoting the child’s best interests, nor practical arrangements.  The conduct was only likely to increase the acrimony between the parties.  The reading of the orders that she adopted was not reasonably open to her.  It was accepted by her to be a technical interpretation on terms she would not have otherwise have insisted upon had the applicant behaved differently toward her in other respects.  I do not find that the circumstances are such that the mother ought to be excused for failing to comply with the orders.

1. Having regard to the plain terms of the orders, the material set out in the newsletter and the circumstances of the case, I am not satisfied that the mother has made out a defence under section 70ne(1a). I therefore find that the second alleged contravention is proved.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Associate:  Melissa Gangemi

Date:  2 June 2006