B and B
[2004] FMCAfam 661
•11 October 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & B | [2004] FMCAfam 661 |
| FAMILY LAW – Contravention of orders. |
Family Law Act 1975; ss.70NB – 70NR
Family Law Rules 2004; Ch. 2, r.21.08
Vlug v Poulos (1997) FLC 92-778
| Applicant: | T D KEITH B |
| Respondent: | H B |
| File No: | MLM 4025 of 2003 |
| Delivered on: | 11 October 2004 |
| Delivered at: | Hamilton |
| Hearing Date: | 11 October 2004 |
| Judgment of: | Bennett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Sweeney |
| Solicitors for the Applicant: | Fogarty Lawyers |
| The Respondent appeared in person. |
THE COURT HAVING FOUND:
(a)THAT the respondent mother has contravened Order 4.4 of the Orders made in the Family Court of Australia on 7 January 1999 in that the mother, without reasonable excuse, deprived the father of contact to the children A M T B born 21 September 1990 and J H H B born 7 September 1992 on the weekend of 30 July 2004;
(b)THAT the respondent mother has contravened Order 4.4 of the Orders made in the Family Court of Australia on 7 January 1999 in that the mother, without reasonable excuse, deprived the father of contact to the said children on the weekend of 13 August 2004;
(c)THAT the respondent mother has contravened Order 2 of the Orders made in the Family Court of Australia on 7 January 1999 in that the mother, without reasonable excuse, authorised the child A M T B born 21 September 1990 to undergo a planned medical procedure without consultation with, or any prior notice to, the father;
(d)THAT the Family Court of Australia determined on 7 September 2001 that the mother had, without reasonable excuse, contravened the primary Order;
(e)THAT this Court determined on 8 July 2003 that the mother had, without reasonable excuse, contravened the primary Order and required the mother to enter into a bond with a surety of $1000 for a period of 1 year on condition that the respondent be on good behaviour for a period of 1 year and comply with Orders in relation to contact and the children.
THE COURT ORDERS:
THAT the issue of penalty(s) be adjourned to the next sittings of this circuit at Warrnambool, in February 2005 to await an assessment by an appropriately qualified person as to the effect on the children (or either of them) of requiring the respondent to enter into another bond, a condition of which bond would be that the respondent mother comply with all Orders as to contact between the father and the children.
THAT Pursuant to s.62G(2) of the Family Law Act1975 the parties and the children of the relationship (if requested) attend upon a counsellor nominated by the Primary Dispute Resolution Coordinator of this Court (and preferably with some expertise in the concepts described broadly as contact refusal or parental alienation) and to so attend on a date and at time/s to be advised for the purposes of the preparation of a family report to be made available to the Court and the parties and such report be released by not later than 15 January 2005.
THAT the parties send copies of all of their court documents to family report writer within 3 days of being requested to do so by the family report writer.
THAT liberty to apply to me be reserved by arrangement with my Deputy Associate Jessica Beck on 03 8600 4418 as to any incidental matters in relation to the report, its preparation and the further hearing.
THAT until further order the bundle of documents, handed up by the mother, comprising of 43 numbered pages, be marked exhibit “A” and remain on the Court file.
THAT my reasons for judgment of this day be transcribed, and when transcribed, be published and sent to the parties.
AND THE COURT NOTES:
THAT nothing in this Order limits the ability of the mother to make a further plea in mitigation or for the father to make limited submissions as to penalty on the adjourned date.
THAT pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HAMILTON |
MLM 4025 of 2003
| T D KEITH B |
Applicant
and
| H B |
Respondent
REASONS FOR JUDGMENT
(ex tempore)
This matter is an application by the father filed on 27 August 2004 alleging that the mother has contravened orders made by the Family Court of Australia on 7 January 1999. The matter was listed for hearing before me on 11 October 2004 in Hamilton.
These reasons for judgment are delivered extempore.
The father has been represented by Mr Sweeney of counsel and the mother has appeared for herself. The mother advised me that she has previously been assisted by a solicitor from Victoria Legal Aid but such assistance as that solicitor was able to offer the mother did not extend to preparation of this matter or being available to appear at this hearing. However, at no time in these proceedings, which have taken some hours, has the mother requested an adjournment.
The orders which are the subject of this contravention application were made, as I have said, on 7 January 1999. The orders provided relevantly as follows:
(2) That the husband and the wife do have joint responsibility for the long-term care, welfare and development of A M T B, born 21 September 1990, and J H H B, born 7 September 1992.
(4) That the husband do have contact with the said children as follows:-
(iv) thereafter, each alternate weekend between the hours of 6 pm Friday to 6 pm Sunday commencing on 8 October 1999.
(5) That in respect of all contact visits the husband shall collect the children from the wife's residence at the commencement of contact and the wife shall collect the children from the husband's residence at the conclusion of contact.
The mother was represented by Mr Woods of counsel at the hearing on 7 January 1999 in which the orders were made and the orders were made by the court.
As a matter of substantive law and natural justice what is required in an application under the provisions pertaining to contravention contains an allegation of facts which, if proved, would constitute a breach without reasonable excuse of, in this case, a parenting order. The order alleged to have been breached must also be stated. The particulars of the alleged breach must be sufficient to enable the respondent to know the case against him or her and meet it. No particular form of wording is required.
In this case I am satisfied that the alleged breaches are accurately stated in the application and can be summarised as follows:
a)
First Alleged Breach: That on or about 30 July 2004 at 6pm at
7 D Avenue, H, the mother did without reasonable excuse fail to comply with paragraph 4(iv) of the order made on
7 January 1999 in that she failed to deliver the child A for contact. I refer to that as the first alleged contravention.
b)
Second Alleged Breach: That on 13 August 2004 at 6pm at
7 D Avenue, H, the mother contravened paragraph 4(iv) of the order made on 7 January 1999 in that without reasonable excuse she failed to deliver the two children for contact. I will refer to that as the second alleged contravention.
c)Third Alleged Breach: Early in 2004 at H Base Hospital the mother contravened a specific issues order in that without reasonable excuse she permitted A to have surgery without consultation with or notice to the father. I will refer to that as the third alleged contravention.
The father’s evidence before me is his affidavit sworn on 26 August 2004. The mother’s material is a bundle of some 43 pages of documents submitted by the mother, none of which are in the form of an affidavit. Counsel for the father objected to some of the mother’s material. There were submissions and rulings. In the result, I have excised certain parts of the mother’s material. I also struck out some of the father's affidavit evidence.
In addition to the written evidence, the father was cross‑examined by the mother and the mother was cross‑examined by counsel for the father. The mother additionally called evidence from D M who is a pastor known to the mother with the Assemblies of God Church. Ms M was cross‑examined on behalf of the father.
It was not only the written evidence that contained inadmissible material. Much of the oral evidence was inadmissible. I have disregarded the inadmissible material before me for the purpose of these proceedings.
Prior to the commencement of the hearing I provided the mother with a photocopy of an extract from the Family Law Act 1975, in particular s.70NB through to 70NR and once the hearing commenced before me some time later than that I explained to the mother the operation of chapter 21, r.21.08 of the Family Law Rules 2004 which sets out the procedure to be followed at the hearing and the hearing proceeded in accordance with r.21.08.
In addition to the evidence filed or proffered by the parties, the parties agreed that I should read the judgment of Bryant CFM, as she then was, delivered on 8 July 2003. I have done so. The reason that I mention it here is because I could not express the operation of the contravention provisions in the Family Law Act vis-a-vis the welfare of the child better than the learned Chief Federal Magistrate did in paragraphs 10, 11, 12, 13 and 14 of Her Honour’s reasons. I adopt those comments as being an accurate statement of the law and the interrelationship of the welfare principles in Part VII with the contravention principles in the Family Law Act. Her Honour as she now is concludes at paragraph 14 with the following comments:
Consequently, continuing compliance with operative parenting orders prima facie defines the manner in which the children's best interests are promoted. Compliance ordinarily ensures the optimal application of each of the objects to the child and its parents' particular circumstances. In this case the relevance is that the objects of the act are that children have a right to regular contact with each of their parents. That is the overriding importance of the objects to this particular case.
The mother denied the contraventions. The mother was loquacious in Court. When I asked her whether she admitted or denied the allegations, she said that she denied the allegations. She volunteered that on the specific dates the children had been made available to the father, with their bags packed, but she would not force them to attend contact against their will. Further, the mother said that the children had been so mistreated by the father that they were justified in refusing to attend and she in not forcing them to do so. Finally the mother volunteered that, during the currency of her good behaviour bond, the children had attended contact “because I was told that they had to go or I would be sent to gaol”.
In determining this matter I apply a standard of proof on a balance of probabilities. Having regard to the very serious nature of the allegations and the very serious consequences of what may flow from a finding, I will adopt a high standard.
First contravention: 30 July 2004
Turning to the first alleged contravention. That is the alleged
non-compliance on 30 July 2004, the mother admits that the children were not delivered for contact in the manner envisaged by the orders. She says that she had the children dressed and with their bags packed but that they went to the door and told their father that they would not attend on contact. What was said by the mother is that she believed she had a reasonable excuse for not forcing the children to go on contact and that was because she considered that the children would be unsafe if they went on contact and she was not prepared to force them into that situation.
The mother's evidence thus far was not contradicted by the evidence that was put forward by the father. He says in his affidavit:
I attempted to exercise contact on 30 July 2004 and was unable to do so. On 30 July 2004 I attended the mother's residence in accordance with the court orders and knocked on the front door and A answered. She spoke to me through a locked flywire door and stated she did not wish to attend contact as she was sick of me hitting her. I did not see J or the mother.
I was informed by both parties that the alleged contravention, on
30 July 2004, followed immediately on the expiration of a bond which was ordered by the then Chief Federal Magistrate on 8 July 2003. That bond is part of the court record and a condition of it was that with a surety of $1000 for a period of one year the mother would be of good behaviour and she would comply with orders of the Family Court of Australia or the Federal Magistrates Court in relation to contact between the father and the children from time to time.
The mother's case is that the children are at risk of danger in the father's household and that on 30 July 2004 she either perceived that risk of danger to be much greater than she had in the previous
12 months or inferentially she was not prepared to force the children to go on contact because she was no longer affected by the bond.
The elements of danger identified by the mother to which the children are subject to in the father's home are as follows:
a)the fact that the father hits each of the children a great deal of the time;
b)that the father follows them around his house “like a shadow and will not allow them privacy even to use the toilet” without speaking to them through the door or standing outside;
c)that he will hit the children if they do not reciprocate affection;
d)that he will hit the children if they do not finish what they are eating;
e)
that he forces them to watch inappropriate movies, for example,
R rated or adult theme movies such as Lawnmower Man, Terminator and Psycho;
f)that the father has nailed windows to his residence shut and the children could not escape from the dwelling in the event that there was a fire.
As I have indicated, the father gave evidence. He gave his evidence in a careful and timid way. I accept his evidence was truthful. Although he was clearly nervous and sometimes hesitated, I formed the distinct impression that his hesitation was borne out of a desire to be accurate rather than any form of dishonesty.
At the conclusion of the father’s case, I explained to the mother that she could stand mute, make a statement from the body of the court or give evidence. However, if she gave evidence, she would be subjected to cross-examination. The mother elected to give evidence and be cross-examined.
The mother agreed in cross‑examination that she had since 1994 not considered contact to be in the best interests of the children and that the trigger for this was that when A was four years old, that is, 10 years ago, A told the mother that the father had cut the outside of her vagina with a knife causing bleeding and subsequently that the father had put "glue on her private part". Thereafter, the child had been interviewed by various professional people. The mother agreed that these matters had been ventilated before the Honourable Justice Guest in 1998 and were allegations with which the substance of His Honour's decision on 7 January 1999. His Honour made the orders in respect of which there is now an alleged contravention. She was quite open in saying that she did not agree with His Honour's finding on that day, she said “it was just what he thought”.
The non-compliance is alleged to have happened on 30 July 2004. The mother agreed in cross‑examination that she had for the 12 months prior to 30 July 2004 felt that she had been compelled to comply with orders of the court because, otherwise, she feared she would go to gaol. Specifically she said that she and the children had been advised by her solicitor that their mother would go to gaol in the event that they did not attend contact.
The mother agreed that she was not prepared to promote contact in circumstances where she said she recognised valid dangers for the children. She was, however, not prepared to concede that she, rather than the children, perceived the dangers.
It was put to her that in the event she was placed on another bond that she could continue to comply as she had in the 12 months prior to 30 July 2004 to which she said:
I was forced to comply for 12 months. I did not do it happily.
When put to her by counsel for the father that she could force the children again she said:
I would not want to. The children went because they thought that I would go to jail.
The evidence of D M was given orally, however, she adopted as accurate the first six pages of the bundle of documents handed up by the mother which I will in due course mark as an exhibit and direct remain on the court file. I note that the mother and counsel for the father have a copy of the bundle of documents, each page numbered by me in the top right‑hand corner. It will be apparent from the transcript that the parties directed the court to the bundle of documents when the evidence was adduced.
D M adopted pages 1 to 6 of the mother’s bundle of documents as being notes taken by her on the occasion of contact visits when the father attended the home on Friday, 27 June 2003, Friday,
13 August 2004, Friday, 30 July 2004, Friday, 6 August 2004. Ms M gave her evidence in a moderate tone. She swore that the notes were accurate. Her evidence was that she had been asked to attend the mother's home to make notes of contact changeovers and was -
there to record events that I thought would assist Mrs B.
Ms M said that on each occasion she attended the home to be the scribe to the interchange between the children and their father or the mother and the father had the children declined to go on contact and had not been forced.
Ms M said that she stood in close proximity to the front door of the house which seems to be a house of fairly modest dimensions, that she was separated only by a partial wall from the front door and that she stood at a table taking notes. Her evidence was that she attended on five occasions. She deposed that, by halfway through the first relevant contact period, each of the children then aged approximately 12 and 14 years would have been aware that she was taking notes.
I was not impressed in the way that Ms M then tried to distance herself from that evidence by saying that there may have been some doubt in the girls' mind as to what she was writing down. She said that she attended the home on other occasions and did so regularly but she agreed that she did not take notes on those non-contact occasions.
I accept that Ms M is well-motivated in her own mind. However, her evidence left me with the very firm impression that her presence at the home for contact occasions was solely to bring into existence evidence to defeat the exercise of contact in this case. Further, that she did so at a time when she knew that the mother could be advantaged by that because both the mother and Ms M knew that the bond imposed by Bryant CFM, as she then was, had expired.
The mother and Ms M said in their evidence that after the expiration of the bond the mother was no longer compelled under threat of gaol to force the children to go and that this was understood by the children.
Having regard to the evidence of Ms M and the evidence of the mother, I am satisfied that the atmosphere in the mother's house is one which is wholly opposed to contact. That is that the indirect and direct enforcement by the mother on the children that contact is undesirable is very powerful. It is a much more potent message for the children than the expectation that they might have contact with their father by virtue of getting dressed to go out and packing their bags shortly before a scheduled contact visit.
I note that the mother has in her possession the relevant sections of the Family Law Act. Section 70NE(3) provides that a person is taken to have had a reasonable excuse for contravening a contact order in a way which resulted in a person and a child being deprived of contact they were supposed to have under the order if the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health and safety of the person. There was no part of Ms B's evidence that she had communicated to Mr B in a formal way any objection to the playing of videos, which Mr B denied were inappropriate videos, or asking him to unsecure the bolted windows.
I am not satisfied that the mother on the occasion of 30 July 2004 made out a case of having a reasonable excuse for the children not to be sent on contact.
That leads me to the second limb of s.70NE(3)(b) whereby, even if I was satisfied that on 30 July 2004 the mother was motivated predominantly by a need to protect the health and safety of her children (and I am not satisfied), the mother failed to demonstrate to me that she denied contact only for so long as was necessary to protect the health and safety of the children. As I have said above, there was no evidence adduced in these proceedings to the effect that the mother had notified the father of her concerns and asked him to desist from a course of conduct.
Second contravention – 13 August 2004
Turning to the second alleged contravention which occurred on 13 August 2004, I find the evidence in relation to that incident to be identical and I repeat all of my earlier findings in relation to the first contravention.
Third contravention: A’s medical procedure
Turning to the third contravention, that is, that in early 2004 at the H Base Hospital the mother arranged for A to have what the father refers to as elective surgery without his consent or knowledge. Ultimately, the mother admitted that this was so. In cross‑examination she said that she signed the documents for A’s operation some time prior to the operation occurring, and as best as I have recorded it, the operation occurred on 15 October 2003. The mother acknowledged that she had a duty to consult the father, however, she said that where the father had a duty to consult her he had failed to do so. She referred specifically to an incident some time ago in which one of the children was injured in an accident and the mother was called to the hospital by the other child. That issue loomed large before Bryant CFM in July 2003.
I am satisfied that the order conferring joint responsibility for the long‑term care, welfare and development of the children on both of the parents conferred on Ms B a responsibility to consult with Mr B about matters affecting the long-term care, welfare and development of the children and in A’s case her tonsillectomy which was a planned medical intervention. Certainly there was no evidence to suggest that this was an emergency procedure.
The question of whether an order for joint responsibility for long-term care, welfare and development could be breached was a matter dealt with by the Full Court of the Family Court in the decision of
Vlug v Poulos(1997) FLC 92-778. At page 84,596 the Full Court consisting of their Honours Finn, Kay and Moore JJ said:
Thus, the Full Court has indicated that it would be desirable and in accordance with the intention of the legislation for parents to consult in relation to major decisions concerning their child. However, whether this apparent duty to consult can be enforced by legal proceedings, presumably by injunction where the parental responsibility arises by virtue of the legislation or by contravention proceedings where it arises by virtue of the order, was not discussed by the Full Court in B v B.
On the same page their Honours went on to say:
That a specific issues order which confers on a person either long-term or day-to-day responsibility for a child can at least in certain circumstances be subject to enforcement or contravention proceedings under Part XIIIA of the act it is clear from the provisions of section 112AB and section 65P of the act.
The court then went on to set out the various provisions of the Act and said at page 84,597:
It is to be noted that section 65P draws no distinction between a specific issues order which confers joint responsibility on more than one person and such an order which confers responsibility on more than one person without doing so on a joint basis. It is sufficient to say that we are satisfied, given the provisions of section 64B(vi), section 65P and section 112AB(1) and (2), that an order can be made conferring long-term responsibility for a child on a person jointly with another person and that such an order is capable of being the subject of contravention proceedings if a person in whose favour such an order is made is hindered or prevented from carrying out his or her joint responsibility under the order by any other person, including by the person on whom parental responsibility has been conferred.
Just so that it is entirely crystal clear, their Honours said at page 84,598 as follows:
We are also satisfied that under the specific issues order conferring on the parties joint long-term parental responsibility the mother was required to consult with the husband in relation to matters such as education and religion and the naming of children.
To my mind, the medical procedure undergone by A in 2003 was a matter upon which the mother should have consulted the father in compliance with her responsibilities to exercise jointly matters in relation to the long-term care, welfare and development of A. The fact that the father was wholly prevented from exercising those functions is a trite proposition when he did not even know the operation was to take place. He was not told until after the operation had taken place.
The mother said that she was not actually in agreement with the operation taking place. I take that to be that she had reservations about it. She said, however, that the medical procedure was recommended by a doctor. Furthermore, she said that A had specifically asked that her father not be told. That may go some way to explaining why the mother did as she did, but it does not absolve the mother from the responsibility that she bore under the specific issues order in relation to the joint exercise of that responsibility. In the circumstances I cannot find that the mother had any reasonable excuse for failing to comply with the specific issues order in question.
Generally
In determining this matter I have applied a standard of proof on a balance of probabilities, but having regard to the very serious nature of the allegations and the very serious consequences of what may flow from a finding, I have applied that on a high standard. That said, I am entirely comfortable with my finding based on the written and oral evidence and the observation of the parties in the witness box and out of the witness box that the mother has contravened the orders as alleged.
Penalty
The issue is now one of penalty.
For reasons evident from the transcript, I will adjourn the issue of penalty until after preparation of a report in relation to impact on A and J of me placing the mother on a bond to be of behaviour and to abide orders for contact between the girls and the father.
I will order that the report be released by not later than 15 January 2005.
The matter will return to Court in the next sittings of this Court at Warrnambool (February 2005).
On the return of this matter I require the father to prove the prior occasions on which the mother has been found to have contravened the parenting orders and what sanctions have been imposed by the Court on each such occasion.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Bennett FM
Associate: R.Campbell
Date: 1 November 2004
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