Childers & Leslie [2008]

FAMILY LAW - APPEAL – From decision of Federal Magistrate – CHILDREN – Orders – Child to spend time with father – Contravention – Whether the mother had a reasonable excuse – The mother argued that she had a reasonable excuse because the child was ill and that it was the wish of the child to be cared for at home by the mother – On appeal, contended that the Federal Magistrate should not have found the mother’s excuse made out because the mother’s evidence did not meet the terms of s 70NAE(5) – Onus of proving reasonable excuse lay upon the mother – Evidence about the child’s health was not expressly addressed in terms of whether it constituted “reasonable grounds” for a belief that contravention was necessary to protect the child’s health – Discussion about the application of s 70NAE(5) – Failure of the Federal Magistrate to apply s 70NAE(5) – Test of “reasonableness” in relation to “reasonable excuse” under s 70NAE – Whether an inference can be drawn from events ex post facto to the contravention, if those events are relevant

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

(1) That the appeal against order 1 of the orders of Spelleken FM made 24 August 2007 be allowed.
(2) That a finding be recorded that the mother, without reasonable excuse, contravened the orders of the Federal Magistrates Court made on 26 August 2005, by refusing to allow the father to spend time with the child [X] at 2.00pm on 10 March 2007.
(3) That there be no further order pursuant to s 70NEB of the Family Law Act 1975 (Cth).

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Warnick delivered this day will for all publication and reporting purposes be referred to as Childers and Leslie.

Appeal Number: NA64 of 2007
File Number: BRM 10381 of 2004

Appellant

And

Respondent

REASONS FOR JUDGMENT

1. This appeal involves features typical of a great many applications that assert contravention of an order that a child spend time with a parent: the complaint, even if correct, seems a heavy handed, even obsessive reaction – yet, if the incident is the latest in a series (about which there will commonly be mainly subjective comment, irrelevant to the particular proceeding) perhaps any exasperation of the complainant is at least understandable; secondly, the “excuse” offered by the respondent will seem “fair enough”, at least not to be behaviour that ought attract punishment; and finally, whatever the outcome, it will seem unlikely to contribute to any real diminution in the particular family’s conflict.
2. However, these pervasive but nebulous features must be put aside, though the sense that one is presiding over an unproductive process might tempt a judicial officer to strive to achieve more from the hearing than it can properly yield. The focus must be narrowed, and, at first instance, the relevant facts determined and the law applied. In turn, the appellate court must scrutinise the process below, according to legal principle. As I said in Oxley and Inglis [2007] FamCA 1606, another appeal in respect of a contravention application, a successful appeal may merely exacerbate a disproportion between the extent of litigation and its utility.
3. In the instant case, on Saturday 10 March 2007, [Mr Childers] was entitled by order to spend time with his daughter, [X], then nearly five years old. However, [X]’s mother, [Ms Leslie] did not permit that to occur. At the first opportunity, on Monday 12 March 2007, the father filed an application that the mother be dealt with for contravention.
4. In the hearing of those proceedings before Spelleken FM, the mother admitted that [X] did not spend time with the father as required by the order, but claimed that she had a reasonable excuse for that, namely that [X] was ill. The father accepted that [X] was ill. A doctor had examined [X] on Friday 9 March 2007 and advised (in the words of the Federal Magistrate in her reasons for judgment), “...that [X] needed rest and that she should not undertake much activity for a few days”.
5. The father’s case was, as Spelleken FM put it in her reasons:

...that [X] could have been sent to him on that weekend even though she was ill and that as a doctor he had the skills to be able to care for her...

1. Spelleken FM found that the mother had “a reasonable excuse for [X] not attending with her father on the weekend of 10 March” and dismissed the father’s application.
2. A central point of the father’s appeal is that Spelleken FM should not have found the mother’s excuse made out, because the mother’s evidence did not meet the terms of s 70NAE(5) of the Family Law Act 1975 (Cth) (“the Act”), namely:

70NAE

(5) 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 a person and a child not spending time together as provided for in 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).

1. A secondary set of grounds of appeal relates to evidence that was before the learned Magistrate about events in the week following the weekend in question. The child, who remained unwell, was cared for by persons other than the mother. The father argues that these events ought have satisfied the learned Magistrate that the child did not need to be withheld from the father on the weekend.
2. Depending on the outcome of these arguments it may be necessary to reconsider or remit the father’s application for contravention.

The argument about the application of section 70NAE(5)

(i) The terms of the section

1. Section 70NAE(1) is as follows:

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 (2), (4), (5), (6) and (7).

1. As seen earlier, subsection (5) sets out a particular set of circumstances in which a respondent “is taken” to have had a reasonable excuse for a contravention. So also does each of subsections (4), (6) and (7), being subsections addressing the same “excuse”, but in relation to contraventions of other types of parenting orders. Subsection (2) addresses a different type of excuse, which will be established 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.

(ii) The learned Magistrate’s reasons

1. There were two applications before the court on 19 July 2007, one being the contravention application in question and the other an application to vary a prior order about arrangements for [X] to spend time with the father. The learned Magistrate’s reasons in respect of the contravention application are effectively contained in paragraphs 3-16 of the judgment delivered 24 August 2007. In paragraph 2 of her reasons, Spelleken FM recorded that the operative order for [X] to spend time with the father provided that the child spend time with him from 2.00pm Saturday to 5.00pm Sunday three weekends out of every four (as well as some mid-week contact).
2. In her reasons, Spelleken FM set out the terms of s 70NAE(1) (also set out above) and in the following paragraph said:
   1. In this matter the mother relies on ss(2)(b) that the Court should be satisfied that she ought to be excused in respect of the contravention.
3. This categorisation of the mother’s case was inaccurate. Subsection (2)(b) (quoted above) does not stand independently as a basis for a finding of reasonable excuse. It is the second part of the basis, the first part being delineated in subsection (2)(a), and relating to a lack of understanding by a respondent of the pertinent order. In any event, the mother’s case was not that she had contravened the order because she did not understand the obligations imposed by it.
4. After the reference to s 70NAE(2)(b), the learned Magistrate turned to the question of the standard of proof and said:

(1) Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

(2) Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

...

1. Although the learned Magistrate thus addressed the standard of proof, she did not expressly recognise that in respect of the excuse, by virtue of s 70NDA(c), the onus of proof lay upon the mother. While there is nothing in the reasons of the learned Magistrate indicating a misapprehension about that and no ground of appeal suggests there was, the question of onus is related to the argument considered later about whether the learned Magistrate ought have been satisfied the excuse was established.
2. The learned Magistrate recorded the mother’s case that on Friday 9 March 2007 [X] “woke up ill coughing”. At the mother’s request the paternal grandparents took [X] to the doctor and the doctor gave the advice earlier indicated. The actual medical certificate issued that day by the doctor stated that the child was under treatment for an upper respiratory tract infection for the period 9 to 10 March and would be “unfit to continue her usual occupation”.
3. On 10 March 2007, as [X] was still ill, the mother sent a text message to the father explaining that the child would not be spending time with him that weekend. An exchange of messages followed, the mother maintaining her position and the father saying that the child should be delivered to him and he would look after her. Similar messages were exchanged on the following day. Spelleken FM recorded the mother’s concession that the father had the skills necessary to care for the child medically but the learned Magistrate also recorded the mother’s explanation “...that not only was she abiding by the doctor’s recommendation...she was also responding to [X]’s express wish to stay home and be cared for by her rather than spending that weekend with the father”.
4. In the following paragraphs of her reasons, the learned Magistrate referred to the evidence about events in the week after the weekend in question and she then concluded her consideration of the contravention application as follows:
   1. Having heard from the mother and father I do not accept that the mother was acting out of spite or that she deliberately prevented [X] from spending time with her father. [X] was only four at the time this event occurred. Since she was born she has always been in the primary care of the mother and although I have no doubt that the father has the skills necessary to care for his daughter when she is ill, I accept given the child's age and her primary attachment to her mother that there may be times when she is ill that she wants to stay at home and be cared for by her mother.
   2. I have also taken into account that the mother made arrangements for the child to be taken to the doctor and that there is a medical certificate indicating that the child should have bed rest. Given [X] was still ill in the following week and the paternal grandparents involvement in her care in the past I am also satisfied that the mother made appropriate arrangements for [X]’s care in that week. For those reasons I find that the mother had a reasonable excuse for [X] not attending with her father on the weekend of 10 March, and I dismiss the contravention application.
5. It is thus seen that nowhere in her reasons did Spelleken FM turn to the terms of s 70NAE(5), specifically dealing with circumstances where an order that a child spend time with a person is contravened, allegedly because of a child’s health. Moreover, the learned Magistrate did not seek to make findings of fact in terms to which that subsection might be applied. There is no finding by the learned Magistrate that keeping the child at home was necessary to protect her health. There is no finding about any belief of the mother about that. Evidence about the child’s health was not expressly addressed in terms of whether it constituted “reasonable grounds” for a belief that contravention was necessary to protect the child’s health. Matters such as the wish of the child to stay home on Saturday have not been assessed against the yardstick of the impact of a denial of that wish on the health of the sick child. In those circumstances, the question arises of why the learned Magistrate gave apparent weight to such a young child’s wish, a factor that would not normally assist a claim of excuse for contravention of an order that the child spend time with the other parent.
6. The terms of the learned Magistrate’s reasons may imply that the test she applied was a broad one, a concept of reasonableness, perhaps encapsulated in the words in s 70NAE(2)(b) to which she (incorrectly) referred herself, namely “...that the respondent ought to be excused in respect of the contravention”. If that is so, a further question arises as to whether such a test was open to the learned Magistrate.

(iii) Did the Federal Magistrate err in her approach?

1. As earlier seen, s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found. While it is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse, a much more difficult question is whether, if the circumstances seem to fit within the character of those set out in a subsection, that subsection describes the limits within which reasonable excuse may be found. For example, could a respondent who genuinely believed that contravention was necessary to protect a child’s health, but who had no reasonable grounds for that belief, nonetheless be found to have had a reasonable excuse for contravention or, might a person who contravened an order to protect a child’s health be found to have had a reasonable excuse for contravention, notwithstanding that the retention was for longer than was necessary to protect the child’s health.
2. The first example might be addressed by regarding the term “reasonable excuse” in s 70NAE(1) as being an objective test, albeit one that might include “subjective” aspects. Thus, the term “reasonable excuse” in subsection (1) would match the term “on reasonable grounds” in subsection (5). If this approach was taken, the same result would be achieved whether subsection (5) was expressly relied upon or not. While this conclusion does not mean that subsection (5) must be applied whenever it can “fit” the circumstances, it certainly does not support an opposite conclusion.
3. While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “...necessary to protect the health...” and “...not longer than was necessary”, which if not met will exclude some “excuses”. I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection. So, as to the second example given in the preceding paragraph, without such an additional circumstance, it would not be open to find reasonable excuse in respect of a contravention for a period that exceeded that which was necessary to protect a child’s health.
4. In any event, it may not be necessary in this appeal to try to tease out the potential application of s 70NAE(5) in every case in which a child’s health is raised as an excuse for contravention.
5. Here, the approach of the learned Magistrate is unclear. In my view, the correct approach would have been to at least attempt to measure the mother’s excuse against the terms of s 70NAE(5) and to explain why the subsection did not apply, if that was held to be the case. The learned Magistrate did not do either of these things. But even if I am wrong in that, on the face of her reasons, Spelleken FM applied a wrong test, namely the terms of s 70NAE(2)(b). While it is not impossible that the reference to that subsection is some sort of clerical error, nothing in the reasons leads me to that conclusion.
6. Thus the learned Magistrate fell into error.
7. Moreover, the learned Magistrate may well have fallen into error by applying too loose a test of “reasonableness”. The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act. As Lindemayer J said of the term “any just cause” in In the Marriage of Lutzke (1979) 5 FamLR 553 at 559:

... However, the Act is silent as to what may constitute “just cause” for the discharge of an order. In my opinion, however, the words “just cause” are not used in any broad general sense, nor are they intended to import any abstract notions of justice, “Palm tree” or otherwise, into the determination of applications for discharge. In my opinion those words must be interpreted in the context of the Act as a whole and in particular with regard to the other specific provisions of the Act which relate to maintenance. Thus a “cause” for the discharge of an existing maintenance order will be a “just cause” only if, having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is “right” or “proper” that the order should be discharged.

1. Here, the context in which “reasonable excuse” applied tellingly included the subsections of s 70NAE. It also included that the father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the mother in this case.
2. Section 65N in relevant part provides that:

(2) A person must not:

(a) hinder or prevent a person and the child from spending time together in accordance with the order; or

(b) interfere with a person and a child benefiting from spending time with each other under the order.

1. The objects of Part VII of the Act set out in s 60B include:
   • (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;

...

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. The principles underlying the objects are set out in s 60B(2) and include:
   • (a) that children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together;
2. These objects and principles offer considerable support for the proposition that a parent who is entitled to spend time with a child ought be able to do so in various conditions and circumstances, including care for a child when the child is unwell, unless of course an exception such as that with which s 70NAE(5) deals, applies.
3. The relevant context also includes authoritive statements of the court about like cases, of which the following statements In the Marriage of Gaunt (1978) FLC 90-468 are a good example (at 77,398):

The essential question is this - can a party who does not agree with a court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.

... A party’s subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “reasonable cause”... .

1. In my view, it was not open to the learned Magistrate in circumstances as the learned Magistrate found them to be, to find a “reasonable excuse” for the contravention which occurred.

The learned Magistrate’s treatment of events in the following week

1. Relevant to the context of this discussion is that, firstly the father’s application for contravention asserted that the contravention occurred on 10 March 2007 at 2.00pm at his home, when “the respondent mother without reasonable excuse refused to allow the applicant to have contact with the child [X].”
2. Secondly, as earlier indicated, as well as weekend contact the orders provided for [X] to spend time with the father mid-week. The provision was for Tuesdays and Thursdays, 6.00pm to 8.00pm.
3. In support of the proposition that events subsequent to 2.00pm Saturday could be taken into account, Mr Baston, Counsel for the father, suggested that the learned Magistrate might or ought have viewed the father’s complaint of contravention as one relating to the continued refusal by the mother with regard to the balance of 10 March 2007 and on Sunday, 11 March 2007 and possibly, on the following Tuesday and Thursday. He referred to comments by the Full Court of the Family Court of Australia in In the Marriage of Stevenson and Hughes [1993] FamCA 14; (1993) FLC 92-363. However, he did not go so far as to say that that is the way the father’s case was presented below and in those circumstances, I do not accept his submissions in this regard.
4. The learned Magistrate described the matters that occurred in the following week as follows:
   1. In response to questions the father put to the mother under cross-examination about her decision to leave [X] with his parents for some part of the following week, she explained that she was unable to take time off work, that [X] was too ill to attend school, that the paternal grandparents had regularly supervised [X] in the past both before and after school and at times when she was absent from school because of illness, and that in those circumstances she believed the arrangements she made for [X] were appropriate.
   2. ...The father also argued that given the mother's decision to leave [X] with his parents in the following week the court should not accept that [X] was so ill that she could not have spent time with him on the weekend of 10 March 2007. He also argued that the mother’s decision to leave [X] with his parents supported his concerns about the mother’s motivation on that weekend which he says was to stop [X] spending time with him and that it was also indicative of the mother’s attitude toward him and [X] spending time with him.

...

1. ... Given [X] was still ill in the following week and the paternal grandparents involvement in her care in the past I am also satisfied that the mother made appropriate arrangements for [X]’s care in that week. For those reasons I find that the mother had a reasonable excuse for [X] not attending with her father on the weekend of 10 March, and I dismiss the contravention application.
2. Mr Fisher, Counsel for the mother in the appeal, argues that events after the time of the alleged contravention are not relevant to the question of whether or not a contravention was committed.
3. Mr Fisher referred to comments made by the Full Court in Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 at [32], but in my view, their Honours’ comments were limited to the lack of connection between the particular ex post facto events referred to in that case and the question of whether or not a contravention had been earlier committed.
4. In G v H [1994] HCA 48; (1994) 124 ALR 353 at 355, Brennan and McHugh JJ said:

An inference is a tentative or final assent to the existence of a fact which the drawer of the inference bases on the existence of some other fact or facts. The drawing of an inference is an exercise of the ordinary powers of human reason in the light of human experience; it is not affected directly by any rule of law. ... But the drawing of an inference is part of the process of fact finding: it has to do with the minor premiss in the syllogism of judgment, not with the major premiss of legal principle. (emphasis added)

1. There is no fundamental reason why the proof of facts relevant to a contravention on a particular occasion may not in part depend on inferences about those facts drawn from findings about ex post facto events.
2. While in the paragraphs quoted the learned Magistrate indicated an awareness of the father’s contentions of the relevance of ex post facto events, as seen, in paragraph 16, she did not deal with the question of the significance of those events to acts directly bearing upon the question of “reasonable excuse” on 10 March, but rather, merely expressed satisfaction that the mother had made appropriate arrangements for the child’s care in the following week. In my view, the failure to address the father’s arguments constitutes appealable error.

Reconsideration of the father’s application, or remission

1. While the lack of fact-finding directed to the application of section 70NAE(5) constitutes some impetus for a remission, Mr Baston urges that I reconsider the matter. Mr Fisher does not urge otherwise. In view of all the circumstances of the matter, though not without some reservation, I think I should consider the application for myself.
2. I have had regard to the terms of s 70NAE(5). There was no finding, and I was not taken to evidence which might support a finding, that to take the child to the father’s home would have in any way adversely affected the child’s health. There was no finding as to what the mother believed as to that matter. It follows that there was no finding as to “reasonable grounds”, although there were references to the medical evidence, the wishes of the child and a finding overall that the mother had a reasonable excuse.
3. My own perusal of the transcript reveals what I regard as the “high point” of the mother’s excuse, when in response to a suggestion by the father that it would have been reasonable for the child to be brought to stay with him on the Saturday and the Sunday, the mother responded:

...Well, that Friday night she had a fever and she was up till – I – she kept me up till 3 in the morning. Every four hours I had to give her Panadol. She had a fever. And then in the morning she started vomiting and all day I had to try and contain the temperature because of the high fever that she was having. So it wasn’t reasonable for me to actually physically take her and take her anywhere and which I didn’t. Her fever continued - - -

1. However, this answer does not expressly address the issue of the “necessity” of retention of the child for her health. In so far as it might impliedly do so, in my view the inference is rebutted by the circumstances later referred to.
2. I am not satisfied that the mother had a belief at all, or if she did, that it was on reasonable grounds, that refusal of the time that the child was to spend with the father, commencing 2.00pm on 10 March 2007, was necessary to protect the health of the child.
3. Having regard to the onus of proof, I am not satisfied that the mother had a reasonable excuse for the contravention which occurred.
4. If more is necessary, I draw the inference, from the evidence of the arrangements made for the care of the child during the following week, when the child was cared for by persons other than the mother and indeed at a place other than the child’s home, in the absence of any evidence showing a relevant change of circumstance from Saturday, 10 March 2007, that the mother did not on Saturday 10 March 2007 believe that retention of the child was necessary to protect her health.
5. It follows that I find that on 10 March 2007 the mother contravened the relevant order without reasonable excuse.
6. The father did not seek any orders consequential upon such a finding, save for compensatory time. I agree that that is a course appropriate to the contravention. However, it is almost a year since the events founding the litigation. Compensatory time is not an order to be made by way of retribution, without regard to the child’s best interests. I was not taken to any evidence to show just what arrangement the father proposes. I do not know what, if any, interference compensatory time might work in the child’s current activities. I am not satisfied that an order for compensatory time should be made.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate:

Date: 18 January 2008