FEDERAL CIRCUIT COURT OF AUSTRALIA
BILLINGS & SIMPKIN	[2015] FCCA 1401	

Catchwords:
FAMILY LAW – Children – contravention of parenting orders – reasonable excuse – whether reasonable excuse established – purpose of applying sanctions for contravention of parenting orders – two-fold purpose – education of parties about the necessity of complying with parenting orders – indication of disapproval of contravention of orders – imposition of a bond.	

Legislation:
Family Law Act 1975 (Cth), ss.11C, 11F, 70NAC, 70NAE, 70NAF, 70NEA, 70NEB, 70NEC
Federal Circuit Court Rules 2001, r.25B.04	

Cases cited:
Matthews v Millar (1988) 12 Fam LR 205
McClintock & Levier [2009] FamCAFC 62; (2009) 41 Fam LR 245; FLC 93-401; 233 FLR 179
In the Marriage of O’Brien [1992] FamCA 52; (1992) 16 Fam LR23; FLC 92-396
Stevenson v Hughes (1993) FLC 92-363
Stubbs & Stubbs [2013] FamCA 427	

Applicant:	MR BILLINGS	

Respondent:	MS SIMPKIN	

File Number:	MLC 3920 of 2009	

Judgment of:	Judge Scarlett	

Hearing date:	20 May 2015	

Date of Last Submission:	20 May 2015	

Delivered at:	Melbourne	

Delivered on:	20 May 2015	

REPRESENTATION
Counsel for the Applicant:	Mr Lethlean	

Solicitors for the Applicant:	Perisic Lawyers	

Respondent:	In person	

ORDERS
(1)	The Respondent did on 15 August 2014 without reasonable excuse contravene Order 3(a) made on 26 February 2013 by refusing to allow the Applicant to spend time with the child [X] born [in] 2003.
(2)	The Respondent did on 5 September 2014 without reasonable excuse contravene Order 3(a) made on 26 February 2013 by refusing to allow the Applicant to spend time with the child said child [X].
(3)	The Respondent did on 25 December 2014 without reasonable excuse contravene Order 3(d)(ii) made on 26 February 2013 by refusing to allow the Applicant to spend time with the said child [X].
(4)	The Respondent did on an unspecified date in February 2015 contravene Order 17 made on 7 December 2009 by failing to notify the Applicant that the said child [X] had become seriously ill and required surgery to remove his appendix.  
(5)	The Respondent is required to enter into a bond under the provisions of section 70NEC of the Family Law Act 1975, without surety or security, for a period of 12 months from today on the following conditions:
(a)	That she be of good behaviour during the term of the bond; and
(b)	That she comply with Orders of this Court.
(6)	The parties are to pay their own costs.
(7)	In respect of the Application for Parenting Orders filed by the father on 19 May 2015 and returnable on 14 September 2015:
(a)	the Respondent is to file and serve a Response and an affidavit stating the facts upon which she seeks to rely within one month from the date of this Order: and
(b)	the Applicant and the Respondent are to attend a Child Dispute Conference under the provisions of section 11F of the Family Law Act and in accordance with section 11C of the said Act the Conference is to be reportable. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE	
MLC 3920 of 2009
MR BILLINGS	
Applicant

And

MS SIMPKIN	
Respondent

REASONS FOR JUDGMENT
1.	The Application before the Court is an application by the father of a boy called [X] to have the child’s mother dealt with for contravention of a number of orders made on 7 December 2009 and other orders made by consent on 26 February 2013.  There were originally the somewhat astonishing number of 72 counts alleging contraventions, although Counsel for the Applicant father very wisely elected to proceed on four counts, which in his view represented the totality of the concerns about the failure by the mother, in the father’s eyes, to comply with the Court orders.
2.	There is no issue as to the fact that this boy has not spent time with his father since the earlier contravention alleged on 5 August 2014 until today.  There were four allegations relating to spend time orders made on 26 February, two of which referred to weekends on 15 August and 5 September, one referred to Christmas Day 2014 and one referred to a failure to comply with the order made on 17 December 2009 in which it was alleged that the mother had failed to inform the father that the child had become seriously ill and required surgery to remove his appendix.
3.	Once those four counts had been decided upon, each one was put to the mother in accordance with the procedure laid down by rule 25B.04 and in each case she was asked to indicate whether she admitted or denied the allegation.  The mother indicated that she admitted each allegation, but informed the Court that she believed that she had a reasonable excuse.  The mother gave a brief summary of the reasonable excuse or excuses prior to the luncheon adjournment which were that the child, now aged 11 and a half, had said that he was scared of going to his father’s place and had been saying that for quite a while. On one occasion indeed he threatened to commit suicide if he was required to go.
4.	As far as the mother’s failure to notify the father of the child that he had undergone surgery, or he had in fact taken ill requiring surgery, the mother said that when it first happened the necessity of informing the father had passed from her mind.  After the child had recovered from surgery she asked him if he wanted her to let his father know and the child said that he did not.
5.	I informed the mother that over the luncheon adjournment I would give her the opportunity to prepare to give oral evidence expanding upon the reasonable excuse or excuses that she had informed the Court and that Mr Lethlean of Counsel who appeared for the applicant would be given the opportunity to cross-examine her.  As the mother was unrepresented it is unsurprising that she had not prepared an affidavit setting out a reasonable excuse, but I took the view that in the circumstances, with the relatively simple facts of the situation, that I would permit her to give oral evidence and Counsel for the applicant and his instructor should be in a position to prepare for cross-examination, noting that they had been given a reasonable idea by the mother in open Court prior to the lunch adjournment as to what the reasonable excuse would be.
6.	Counsel required no adjournment after the mother’s oral evidence and cross-examined the mother for approximately 20 minutes.  The mother had said in her evidence that the child had said on more than one occasion that he did not want to go to the father’s place complaining that he was scared of his father, complaining that his father and his uncles had on one occasion hung him upside down by his ankles.  He complained that his father would drink whilst the child was spending time him, and he complained of being scared of the father’s current wife, because he said she is mean to him and because of the way she speaks about the child’s mother.
7.	As to the failure to inform the father that the child had undergone surgery because of an urgent bout of appendicitis, the mother described circumstances occurring quite quickly with the child coming home from school, complaining of a headache and subsequent pain which caused the mother to take him to the doctor.  That evening by 9 pm the child was in [omitted] Hospital.  He was seen by a surgeon at [omitted] Hospital and was operated on at 4 pm the following day.  About five hours after the child had come out of surgery and was out of the anaesthetic, the mother said that she asked him if he wanted her to text his father and advise him of what had happened and the child said no.  She said that the child did not want to see his father and said that she was just trying to do the right thing for her child.  She was cross-examined on those issues and maintained her position that she was in fact responding to the firm views of her son.
8.	I indicated that I would hear submissions from Counsel for the Applicant and from the Respondent in person and I would hear them in that order, as the applicant was legally represented and the respondent was not.  Mr Lethlean of Counsel submitted that the course of the child not spending time with his mother had been set as long ago as August of last year and he submitted that the mother had not established a reasonable excuse for making the child available, nor had she established a reasonable excuse for failing to inform the father about the child’s illness.  The mother submitted that she believed that she had a reasonable excuse in respect of all four of these counts and she believed that she was protecting her son, and she said that she was standing before the Court for her son.
9.	I have examined the four allegations to which the mother admitted, and I am satisfied that they are sound in law and fact and that it was appropriate to admit on each case an admission of contravention.  The question of contravention of parenting orders is defined by section 70NAC of the Family Law Act 1975 (Cth) and where a person is bound by an order the person contravenes the order when he or she has:   (a) intentionally failed to comply with the order, or (b) made no reasonable attempt to comply with the order.  An applicant in contravention proceedings must show that there is an order in existence and that the respondent has contravened the order.  Once the contravention has been proved it is up to the respondent to show that he or she had a reasonable excuse for contravening the order.  Once the contravention has been established and the Court is satisfied that the respondent does not have a reasonable excuse, if that be the case, the Court will decide whether to deal with the matter under stage two of the three stage regime prescribed by the Act or whether stage two does not apply.
10.	It is well established in law the onus of establishing a reasonable excuse is on the respondent.  The Family Law Act 1975 sets out what is described as the meaning of reasonable excuse for contravening an order and in the various subsections sets out what may be a reasonable excuse.  It is not an exhaustive list.  The circumstance which appears to me to be relevant here, in particular subsection (5) of section 70NAE which says that:
	A person, the respondent, is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in the person and the child not spending time together as provided by the order if:  
	(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person including the respondent or the child, and 
	(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
11.	There are, as it can be seen, two legs in subsection (5), both of which must be met.  First, it must be shown that the respondent had a belief on reasonable grounds, and second, that the time within which the child and the father did not spend time was not longer than was necessary to protect the health or safety of, in this case, the child.  That is, of course, not the only reason why the mother claims that she has a reasonable excuse.  And as I said, under section 70NAE of the Act, whilst there are a number of examples given that is not an exhaustive list.  It is very much the mother’s case that it was the child himself who was stating firmly and comprehensively that he would not go and that she acquiesced in this regard.
12.	That is a question that occurs from time to time in contravention applications.  Here the mother has claimed that the child said that he did not wish to go and spend time with the father and has refused to do so and did not wish his father to be informed of his surgery, contrary to the orders made in December 2009 and February 2013.  It is not a reasonable excuse for a parent to adopt a policy of passive resistance or even to take a neutral stance.  There is a positive obligation on a parent to comply with an order that a child should spend time with the other parent in accordance with the parenting order.  It is not sufficient compliance with an order that a child spend time with a parent to tell a child that it is for the child to decide whether or not to spend time with the other parent.
13.	There is an obligation on the parent with whom the child is living to encourage the child to spend time with the other parent and to take reasonable steps to deliver the child to the other parent (see In the Marriage of O’Brien (1992) FamCA 52; (1992) 16 Fam LR 723; FLC 92-396). Similarly, it was held by Hodgson J in Matthews v Millar  that:
	In the absence of authority, my view is that what persons in the position of the defendants are obliged to do is to do whatever is reasonable to bring about compliance with the Court order.  If, in a particular case in all the circumstances it would be reasonable to take positive steps to bring about some change in the attitude and wishes of the child, then I think persons in the position of the defendants are obliged by the order to take those steps.
14.	The existence of a positive obligation to encourage a child to spend time with the other parent has been made clear by the Full Court of the Family Court in Stevenson v Hughes (1993) FLC 92-363 where their Honours said:
	It is not a sufficient discharge of a custodian’s obligations, expressed or implied, to point to words and actions and to say in effect, “You see, I tried, but the child does not want to go”, and thereafter to figuratively fold their arms as if that were an end of the matter.  Theirs is an active role with an obligation to positively encourage access.  It is not a discharge of their duty to set up access to fail.  That is to say it is not sufficient to make a token effort at compliance by the utterance of a few phrases which in the main are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.
15.	The fact is in this case, on the evidence of the mother, that it is the child who has been making the decision, albeit in strong and firm terms, that he does not wish to go and giving his reasons why he does not wish to go.  It has, of course, been pointed out by Mr Lethlean of Counsel for the applicant that the child is 11 and a half years of age and the respondent is the adult in the equation.  Nevertheless, the respondent maintains her position that she is acting not only in accordance with the expressed wishes of the child, but in a view to protect the health and safety of the child.
16.	However, in order to establish a reasonable excuse the respondent must show not only a reasonable belief that the actions are necessary by withholding the child, but that the resultant time of the child not spending time with the father is for no longer than is necessary to protect the health and safety of the child.  Here is a situation where the child did not spend time with the father on 15 August or 5 September 2014, or on Christmas Day 2014, and apparently the situation is continuing.  It is difficult to see how not notifying the father in accordance with a Court order that the child had been seriously ill and had undergone surgery, some five hours after he came out after surgery, would create some sort of a danger to the child’s health or safety, and it appears that the mother acted in the way that she did because the child said that he did not want his father to know.
17.	I get back to the fact that the onus is on a respondent who wishes to establish a reasonable excuse to establish that reasonable excuse and the evidentiary standard as set out in section 70NAF of the Act is on the balance of probability.  I am not satisfied that on the balance of probability the respondent has established a reasonable excuse in respect of any of the four contraventions which have been admitted.
18.	In this matter the Court has found that the respondent has contravened three orders on a total of four occasions without reasonable excuse.  What now needs to be done is for orders to be made finalising the matter.  Once a contravention has been established and the Court is satisfied that the respondent does not have a reasonable excuse, the Court will decide to deal with the matter under stage two of the three stage regime prescribed by the Act, or whether stage two does not apply.
19.	If the Court is satisfied that the stage two procedure is appropriate, the Court may exercise all or any of the powers set out in subsection 70NEB(1) which are:
	(a) directing the respondent to attend a post-separation parenting program, (b) making a further parenting order compensating the applicant for the time not spent with the child or children, (c) adjourning the proceedings to allow party to discharge, vary or suspend the primary order, (d) ordering the respondent to enter into a bond in accordance with section 70NEC of the Act, (e) making an order for monetary compensation, and (f) making an order for costs against the respondent.
20.	I have heard submissions from Counsel for the applicant and from the respondent as to what an appropriate order should be.  It is established that there have been no prior findings of a contravention of the primary orders by the respondent.  Consequently, it seems to me to be appropriate that the matter be dealt with under stage two of the regime prescribed by the Act rather than stage three, noting as I do the nature of the contraventions which have been found.  Stage three provides for somewhat more draconian penalties, but they are not, in my view, appropriate.
21.	I have had recourse to decisions relating to an appropriate order to be made, including a decision of Dawe J in the Family Court of Australia in Stubbs & Stubbs [2013] FamCA 427.  I note that at [71] and [72]  her Honour referred to the decision of the Full Court of the Family Court in Elspeth & Peter; Mark & Peter and John & Peter (Penalty and Costs) [2007] FamCA 1072, a decision of Faulks DCJ and Kay and Penny JJ.  Dawe J in Stubbs & Stubbs also referred with approval to the comments of Cronin J in McClintock & Levier [2009] FamCAFC 62; (2009) 41 Fam LR 245; FLC 93-401; 233 FLR 179, a decision of the Full Court of the Family Court.  Her Honour drew from these decisions these particular points.  Her Honour said at [71]:
	The singularly most significant result of an imposition of a penalty in this case is that any subsequent proven contraventions of the orders may attract more serious penalties under subdivision F of division 13A of part VII of the Act including the imposition of a fine or a sentence of imprisonment.
22.	At paragraph [72] her Honour noted the comments of Cronin J saying that:
	The focus of the Court therefore in dealing with a contravention application under division 13A must be in making orders which will enforce future compliance with these orders.
23.	The function of making orders, and when necessary applying sanctions in respect of contraventions, is twofold.  Initially, there must be a process of education of parties about the necessity to comply with Court orders in respect of parenting, but there must also be the need where the Court considers it appropriate to apply a sanction or penalty to indicate the Court’s disapproval of the behaviour that has been the subject of the application, and indeed the Court applies the penalty to indicate the community’s disobedience of Court orders relating in this case to parenting.
24.	Turning to the matters set out in the stage two procedure.  The first of the powers in subsection 70NEB(1), this found in paragraph (a):
	Directing the respondent to attend a post-separation parenting program.
25.	Mr Lethlean of Counsel has told me that his client has attended one.  The respondent said that she has attended two or three which have all been ordered by the Court.  It does not seem to me to be appropriate or useful to order the respondent to attend yet another post-separation parenting program.
26.	Paragraph (b) of subsection 70NEB(1) empowers the Court to make a further parenting order compensating the applicant for the time not spent with the child or children.  I have given some consideration to that, but in the particular circumstances of this case I am not disposed to make a particular compensatory order, but it is the fact that there are ongoing orders in existence made on 26 February 2013 and compliance with those must resume immediately.
27.	Paragraph (c) of the subsection allows the Court to adjourn the proceedings to allow party to discharge, vary or suspend the primary order.  That has already been done.  The applicant father has now, as recently as yesterday, filed an application for parenting orders seeking to vary the earlier orders.  That application is returnable at 9.45 am on the morning of 14 September 2015, and I will make some directions to enable that matter to proceed smoothly so that by the time the return date arrives that application may have proceeded significantly further than it otherwise would.
28.	Paragraph (d) of the subsection empowers the Court to order the respondent to enter into a bond in accordance with section 70NEC.  That course is urged upon me by Counsel for the applicant.
29.	Paragraph (e) relates to the making an order for monetary compensation.  That is not applicable in this case as there is no claim that money has been lost.
30.	Paragraph (f) empowers the Court to make an order for costs against the respondent.  Counsel for the applicant has told the Court that such an order is not sought, noting that his client is legally aided and noting that the financial circumstances of both parties are such that an impost of a costs order would serve only to take money away from meeting the needs of the child, [X].  No order for costs is made and I will make an order that the parties are to pay their own costs.
31.	That then leaves the appropriate penalty.  I am of the view that the imposition of a bond under section 70NEC is an appropriate order to bring the contravention proceedings to an end.  It is a fact that a bond is to be for a specified period for up to two years.  The Court has the power to impose a shorter period if the Court in its discretion considers that appropriate.  Under subsection 70NEC(3) a bond may be with or without surety and with or without security.  Under subsection (4) of section 70NEC, the Court may impose conditions on the bond and paragraphs (a) to (d) of that subsection set out conditions that may be imposed, although that is not an exhaustive list.
32.	I am of the view that an appropriate order is to require the respondent to enter into a bond and in my view a period of 12 months is an appropriate time.  The conditions that will be imposed are that the respondent be of good behaviour during the term of the bond and that she comply with orders of this Court.
33.	I will also direct the respondent to file and serve a response and an affidavit in reply to the parenting application and she will be given one month to do that, and I will be ordering the parties to attend a Child Dispute Conference under the provisions of section 11F of the Family Law Act 1975 which is to be reportable under section 11C in order to look at the orders sought by the applicant.  It would seem to me that it would be appropriate for that conference to take place after the respondent has filed and served her response and affidavit before the return date on 14 September.
34.	The Court is required if proposing to require a person to enter into a bond to explain to the person the purpose and effect of the requirement and the consequences that may follow if the person fails to enter into the bond, or having entered into the bond fails to act in accordance with the bond.  I think it must be quite clear to the respondent that a bond is a Court order.  If the respondent fails to comply with the bond, or in fact fails to enter into the bond, that will be reported to me and as is the case with all bonds, the sentencing judge will consider whether a further sanction should apply.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  27 May 2015