Father Alleges Contravention of Parenting Orders Against Mother

Sommer & Sommer [2022] FedCFamC1F 108 (7 March 2022)

Final parenting orders were made by consent and the father alleges that the mother contravened a number of those orders.  Issues arose about compliance by the mother.  The Court, in determining whether the mother contravened orders, assessed the manner in which she engaged with the supervised contact centre. 

Facts:

Two contravention applications filed by Mr Sommer (“the father”) on 21 December 2020 and 18 March 2021, each with accompanying affidavits.  Ms Sommer (“the mother”) was ordered to file a response to the contravention applications and an affidavit, should she wish to, by 1 November 2021.  No such documents were filed at that time.  In this case the mother filed an affidavit on 19 January 2022.

Her Honour Justice Henderson made final orders in relation to parenting with the consent of the father and the mother (“the parties”) on 24 November 2020 (“the final orders”).  The father alleges that the mother contravened a number of these orders on 11 different occasions.  The mother was asked whether or not she accepted that any of the breaches alleged had occurred and she specifically entered pleas of not guilty to all 11 counts.  It therefore fell to the father to establish that there was a prima facie case to answer in respect of each of those alleged breaches.

The father read two affidavits filed in support of the two applications for contravention and gave evidence and was cross-examined.  The father contended that the mother contravened Order 5.1 which required each of the parties to facilitate the time which had been ordered by consent and to do so, to “contact ZZ Contact Service within seven (7) days of the making of these orders to arrange an appointment for assessment for suitability for supervised contact/contact changeovers”.  The father alleged that the mother had failed to comply with Order 5.1 without reasonable excuse.  The mother did not admit the allegation.

The father made contact with ZZ Contact Service via his solicitor on 26 November 2020.  The father alleges that the mother failed to comply with that order which obliged her in furtherance of the consent order for time, to make contact with ZZ Contact Service within seven days.  On behalf of the mother it was contended firstly, that the fact that Ms UU had not heard from the mother was not the same as saying that ZZ Contact Service had not heard from the mother and secondly, that the email of 3 December 2020 did not mean that the mother had not contacted ZZ Contact Service as required by Order 5.1 within 7 days of 24 November 2020.  Order 5.4 of the final orders requires that each party “comply with all reasonable rules of the contact service”.  The father is alleging a non-compliance by the mother with a rule of the contact service.  

The father alleges the following: that the mother was required to make the child LL (“LL”) available to spend time with him at 11.00 am on 5 December 2020 at his residence in accordance with the terms of Order 5 of the final orders; that the mother, without reasonable excuse, failed to facilitate time between LL and the father on 12 December 2020, on 19 December 2020, on 16 February 2021, on 13 February 2021; on 20 February 2021, on 27 February 2021, on 6 March 2021, and on 13 March 2021.

Issue:

Whether or not there has been a non-compliance and if there has been a non-compliance, whether or not the mother is able to establish that she had a reasonable excuse.

Applicable law:

Family Law Act 1975 (Cth) s 70NAC - provides that a party may be dealt with for contravention of an order effecting children if and only if:

(a) 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.

Family Law Act 1975 (Cth) s 70NAE -  sets out the definition of “reasonable excuse” for alleged contravention of a parenting order.

Evidence Act 1995 s 140 - applies and the applicant must discharge the onus on the balance of probabilities, having regard to the gravity of the allegation.

Analysis:

In circumstances where the respondent to a contravention application relies on “reasonable excuse” he or she bears the onus of demonstrating that reasonable excuse on the balance of probabilities.  Where the contravention is alleged but not established, the court may order that the person who brought the contravention application pay some or all of the costs of the respondent.  On 3 December 2020 ZZ Contact Service sent an email to the father and said “I have yet to hear from the mother so I don’t think we will be able to get everything organized [sic] for tomorrow”.  On 7 December 2020 ZZ Contact Service wrote to the suggesting that the mother has made no contact with ZZ Contact Service as required by the court orders, but that they were responding to contact made on behalf of the father mother 

In order to accept the submission made on behalf of the mother that the father has failed to prove his case, it is necessary to conclude that, the mother may have communicated with ZZ Contact Service within the seven day period but that she did so without copying the father in or, in the event that she copied the father or his lawyers in, they have chosen not to put that material before the court.  The lawyer who appeared on behalf of the father indicated that in order to make the finding on the balance of probabilities that the mother had failed to comply with the order to make contact within seven days, one had to look holistically at the evidence and in particular, the correspondence with ZZ Contact Service.  The mother’s failure to engage in a timely fashion delayed the commencement of time in circumstances where she and the father had both consented to time occurring weekly from the making of the orders.

Conclusion:

The Court found that the mother failed to make contact as was required.  The matter is ordered listed for further hearing on 31 March 2022 at 2.30 pm.

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