B and B (No.2)
[2007] FMCAfam 5
•15 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| B & B (No.2) | [2007] FMCAfam 5 |
| FAMILY LAW – Contravention proceedings – proceedings concern child aged 11 years – residence order in favour of mother made in December 2003 – orders also provide for regular periodic contact between father and child – child has not spent time with father since January of 2006 – mother’s position is that child refuses to attend contact because of father’s poor attitude to parenting and refusal to acknowledge his failings as a parent – father asserts mother has a proactive duty to facilitate contact which she has failed to discharge – reasonable excuse. |
| Family Law Act – ss.60A, 60B, 65E, 65N, 68F, 70NC, 70NE, 70NEA, 70NG |
| B & B No 1 [2006] FMCAfam 564 Van Galen [2006] Fam CA 714 B & B: Family Law Reform Act 1995 (1997) FLC 92-755 Harris & Caladine & Commonwealth Attorney-General (1990) FLC 92-130 Palejs v Palejs [2002] FMCAfam 315 Northern Territory of Australia v GPAO (1999) 24 Fam LR 253 Snson v Hughes (1993) FLC 92-363 In the marriage ofO’Brien 16 Fam LR 723 Matthews v Millar 12 Fam LR 205 CKS & DRD [2002] FMCAfam 218 Davis & Davis (1976) FLC 90-050 Smit & Pickworth (1981) FLC 91-071 |
| Applicant: | C S B |
| Respondent: | V A B |
| File number: | DNM84 of 2003 |
| Judgment of: | Brown FM |
| Hearing date: | 4 December 2006 |
| Date of last submission: | 7 December 2006 |
| Delivered at: | Darwin |
| Delivered on: | 15 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Ms Farmer |
| Solicitors for the Applicant: | Withnalls |
| Counsel for the Respondent: | Ms Orwin |
| Solicitors for the Respondent: | Margaret Orwin Solicitor |
ORDERS
The Contravention Application filed 16 June 2006 is dismissed.
Until further or other order, Order 3 of the orders made in the Family Court at Darwin on 12 December 2003 is suspended.
Both parties file and serve their respective proposals as to the appropriate interim arrangements whereby S spends time with the father by 26 February 2007 together with any further affidavits of evidence.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNM84 of 2003
| C S B |
Applicant
And
| V A B |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contravention proceedings. These reasons for judgment should be read in conjunction with earlier reasons for judgment published on 27 October 2006.[1] Unfortunately since those reasons for judgment were published, no rapprochement has been reached between S B, the child whom these proceedings concern and his father, C S B, who is the applicant in the proceedings.
[1] See B & B No 1 [2006] FMCAfam 564
The respondent to the proceedings is V A B. She is S’s mother. S lives with her. It is her position that S, who is currently 12 years of age, is adamant that he does not want to spend time with his father, until his father has acknowledged that he has behaved inappropriately towards S in the past and cannot guarantee that this behaviour will not reoccur in future.
The difficulty from the mother’s point of view is that orders were made by the Family Court at Darwin on 12 December 2003, following a three-day trial, which require S to have contact with Mr B each alternate weekend and on alternate Tuesdays during school terms and for half of each school holiday. It is common ground between the parties that S has not spent any time with the father since late January of 2006.
Accordingly, these orders have not been followed. These proceedings are concerned with whether the mother has a reasonable excuse for not abiding by these orders and whether, objectively judged, her behaviour has been reasonable. The case raises difficult issues, particularly the appropriateness of contravention proceedings brought by a party in circumstances where a child of some maturity apparently refuses to go on contact visits with one of his parents.
It is the mother’s position that the relationship between S and his father has broken down because of the father’s irresponsible conduct towards S. In the face of S’s steadfast refusal to spend time with his father, it is her position that the only means by which the relationship between the two can be retrieved is if the father acknowledges his parental failings to S and the two engage in some form of therapeutic counselling.
Unfortunately this counselling has been tried but has not resulted in any apparent improvement in the relationship between Mr B and S. Apart from this counselling, the mother has no proposals as to how the apparent rift between father and child may be mended. It is only recently that the mother has formally applied to suspend the application of the contact provisions of the orders of 12 December 2003.
On the other hand, it is the father’s position that, over the course of 2006, the mother has failed in her responsibilities as a person bound by Family Court orders to facilitate and promote the relationship between him and S, particularly in terms of ensuring that S comes on contact visits, as required by the orders of 12 December 2003. He does not accept that there is any great difficulty in his relationship with S, certainly nothing of such moment that it could not be corrected by some encouragement from the mother directed to S that he should go on contact visits with his father. At best, it appears to be the father’s position that the mother, because of her hostility towards him, has been passively undermining the contact orders and so has given S her imprimatur that it is acceptable that he not go on contact visits with his father.
Accordingly, it is his position that the mother’s conduct since January of 2006 is not objectively reasonable and the court should find that the mother has contravened the orders of 12 December 2003, without reasonable excuse. He is critical of the mother for not being more proactive in regards to taking steps by which S might spend some time with him. For her part, the mother is critical of the father for not being more amenable to the counselling process she has proposed. As is commonly the case in matters such as this, both parties view the difficulty from their own particular perspective and cannot empathise with the position of the other party.
S is of course not a witness in these proceedings. As this brief summary of the case shows, the parties have very different opinions as to S’s wishes regarding the current contact arrangements. The mother was anxious that I personally interview S about the matter. This was an invitation I declined. However, in order that S’s views might be before the court, the mother, independently of Mr B, arranged for S to be interviewed by a paediatric psychologist, Ms Louise McKenna. This interview occurred after the father had commenced these contravention proceedings.
Background
The father commenced the contravention proceedings on 16 June 2006. For reasons already provided, there has been a considerable delay in the matter being dealt with by the court. At least part of the delay has been caused by the parties expressing a wish that S and Mr B attempt to discuss their “difficulties” with one another in the presence of a counsellor, in the hope that the need to hold this contravention hearing could be avoided. Unfortunately that hope has not borne fruit and the impasse remains between the parties.
Mr B’s contravention application contained twenty alleged breaches, divided into four main categories, each one of which related to one of the orders made on 12 December 2003. The orders which are relevant to the proceedings are as follows:
“1.That the child S B born 12 October 1994 live with the wife and the wife have responsibility for the child’s day to day care, welfare and development.
2.That the wife and the husband have joint responsibility for the child’s long term care, welfare and development.
3.That the husband have contact with the child:
(a)from after school on each Friday of each second weekend, during each school term, until the recommencement of school on the following Monday morning, or should that Friday or that Monday be a non-school day, from the last school day immediately before that weekend until the first school day immediately after that weekend;
(b)from after school on each second Tuesday during each school term until the recommencement of school on the following morning;
(c) by telephone on one occasion each week;
(d)for half of each of the Northern Territory School holiday periods, being the first half in even numbered years, and the second half in years ending in an odd number;”
In particular, the father alleges the mother has contravened orders 3(a) to order 3(d) in that she has failed to make S available for contact, as required by these orders, on any weekend; Tuesday evening; during school holidays; or by telephone. As previously indicated, it is common ground between the parties that S has neither spent any significant time with the father nor spoken to him on the telephone, since late January of 2006.
In order to expedite the hearing, the father specified a number of specific incidents to the mother, where he alleges she failed to abide by the orders. As required by Rule 25B.04 of the Federal Magistrates Court Rules, each of these allegations was put to the mother and her formal response to each of them was noted. The allegations, which the court was called upon to deal with, are as follows:
1. On 26 January 2006 the mother breached order 3(d) in that she collected the child from the father’s home and did not return him to the father for the balance of the 2005/2006 Christmas school holiday.
The mother admitted this breach of orders but indicated that she had a reasonable excuse for her actions.
2. On 24 March 2006 until 27 March 2006 the mother breached order 3(a) in that she did not make the child available for weekend contact from after school on Friday until the commencement of school the following Monday.
The mother admitted this breach of orders but indicated she had a reasonable excuse for her actions.
3. On 19 May 2006 until 22 May 2006 the mother breached order 3(a) in that she did not make the child available for weekend contact from after school on Friday to the commencement of school the following Monday.
The mother denied this breach.
4. On 21 March 2006 the mother breached order 3(b) in that she did not make the child available for contact from after school on Tuesday until the commencement of school the following Wednesday.
The mother admitted this breach of orders but indicated she had a reasonable excuse for her actions.
5. On 30 May 2006 the mother breached order 3(a) in that she did not make the child available for contact from after school on Tuesday until the commencement of school the following Wednesday.
The mother denied this breach.
6. Between 26 January to 16 June 2006 the mother breached order 3(c) in that no telephone contact took place between the father and the child other than on 17 and 21 February 2006.
The mother denied this breach.
As a result of the mother’s indications to these allegations, the hearing of the father’s contravention application took place. The father relied on the following documents:
i)Contravention application filed the 16th of June 2006;
ii)An affidavit of the father filed on 16 June 2006.
The father also gave additional oral evidence and was cross-examined by counsel for the mother. The father was represented at the hearing by his solicitor, Ms Farmer. The father did not call any other evidence on his behalf. It should also be noted that currently with his contravention application, the father has made an application to alter the orders which were made on 12 December 2003. On a final basis, the father seeks orders that would see S living in a shared care arrangement, with both his parents, moving between their homes on a weekly basis.
The mother was represented at the hearing by her solicitor, Ms Orwin. Although not required to file any documents in response to the contravention application, the mother relied on the following documents:
i)Response filed 24 July 2006;
ii)Two affidavits of the mother filed on 24 July 2006;
iii)An affidavit of her solicitor, Ms Orwin filed 14 September 2006, to which was attached a psychological assessment report of Louise McKenna.
In her response filed on 24 July 2006, the mother sought that the father’s contravention application be dismissed and that he pay her costs incurred in respect of the application. It is also the mother’s position that the father’s application for final orders be dismissed.
On 6 October 2006, the mother filed an amended response, in which she sought that the orders of 12 December 2003 be suspended until further order. On a final basis she sought orders that would see the orders of 12 December 2003 continuing with the following orders being added:
“1.That the father not consume alcohol when in the presence of the child.
2.That the father personally supervise and spend time with the child during any time the father and child are together.”
Throughout the proceedings to date, it has been the mother’s position that the only way the orders of 12 December 2003 are likely to be able to be utilised once again is if S and Mr B attend at counselling together. She has no other proposals to put forward. Mr B mistrusts such a process and does not see it having any great utility in this case. Notwithstanding these matters, on 7 December 2006, he indicated a willingness to attend mediation with Ms McKenna and S with a view to see whether or not this would assist in the resumption of some form of relationship between him and S.
The mother and Ms McKenna were the only witnesses, who gave evidence on the mother’s behalf. The purpose of Ms McKenna’s evidence was for her to report on her interview and psychological examination of S, which took place on 30 August and 2 September 2006. Mr B did not take part in this psychological assessment.
Chronology
The father was born on 10 June 1953. He is a self-employed builder. He lives at M Road, H S. The mother was born on 1 August 1955. She is a self-employed soap maker. She lives in M. The parties married on 6 August 1988. S is their only child. He was born on 12 October 1994. The parties separated in early 2001. They divorced on 31 March 2003.
There were proceedings between the parties in the Family Court at Darwin during 2003 regarding arrangements for the care of S and the division of their matrimonial property. These proceedings were determined by Warnick J, following a three-day trial at Darwin, in September of 2003. His Honour made final orders in respect of S on 12 December 2003. Those orders have not subsequently been amended. It seems to be the case that Mr B had contact with S more or less in accordance with the orders from December of 2003 onwards.
It is the mother’s position that increasingly throughout 2005, S became more and more reluctant to go on contact visits with his father. It is the father’s position that S has a close and loving relationship with him and there is no reason why the orders of 12 December 2003 should not be followed. By necessary implication, it is his position that the mother is not being sufficiently supportive of the orders and has her own agenda in regards to them.
The parties’ different views as to what has occurred in regards to arrangements for S to spend time with his father are set out in the earlier reasons for judgment. In particular, the mother’s involvement of FACS in the proceedings.[2] Events since 8 August 2006 are also set out in these reasons for judgment.[3] As has been previously indicated, there has been another attempt to broker some form of rapprochement between S and the father involving Ms McKenna. I do not know the outcome of these proceedings.
[2] See B & B No.1 at paragraphs 11-27
[3] ibid at paragraphs 47-51
The legal principles applicable to contravention proceedings
The current contravention proceedings were instituted prior to the new contravention regime, which was inaugurated by the provisions of the Family Law (Shared Parental Responsibility) Act 2006. Accordingly, it seems clear that the relevant legal provisions, which are applicable to these proceedings, are those which are contained in Division 13A, as introduced into the Family Law Act by the Family Law Amendment Act 2000, which came into force on 27 December 2000.[4]
[4] In this regard see Van Galen [2006] Fam CA 714 decision of Kay J delivered 27 July 2006
Division 13A appears in Part VII of the Family Law Act, which is the part of the Act dealing with children. Division 13A is headed “Consequences of failure to comply with orders, and other obligations, that affect children”. In section 60B is set out the object of Part VII and the principles which underlie that object. The principles of Part VII of the Act are as follows:
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children.
The inter-relationship, in the Family Law Act, between the principle and objects of the Act, contained in section 60B and the mechanisms of Division 13A, which deals with contraventions, is a complex one, but it is important. Section 60A(a) provides that the principle and objects identified in section 60B apply to the whole of Part VII which, as previously indicated, includes Division 13A. Accordingly, the object and principles identified in section 60B are relevant to contravention of parenting order proceedings.
Section 60B(2) identifies that the principles as outlined in section 60B(2) are subservient to the child’s best interests. This is often referred to as the “the paramountcy principle”, which is a reference to section 65E of the Act which reads as follows:
“In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
As is clear, section 65E applies only to parenting orders. A contravention application is not a parenting order application per se, although ancillary proceedings to such contravention proceedings may involve the making of a parenting order and so invoke the principle contained in section 65E. Hence, although an order made under section 70NG(1)(a) and (c) will not attract section 65E, however, because section 70NG(1)(b) enables a court to make a compensatory parenting order, section 65E applies to such an order. It also applies under stage three of the parenting compliance regime, if the court is considering varying a contravened parenting order. That is the extent of the limited application of section 65E to Division 13A.
In essence, contravention proceedings are not purely directed to achieving an outcome, which is in the best interests of the child who is affected by such proceedings. Accordingly, in my view, litigants who are contemplating bringing such contravention proceedings need to consider the application of Division 13A to the circumstances of their own particular case very carefully.
The aim of Division 13A proceedings is not to change parenting orders but to enforce them. If the real objective of a party is to modify orders, because they are no longer working or the orders need modification, he or she should bring a specific parenting application and the principles contained in section 65E and section 68F(2) (as they appeared previously in the Act) will apply to it. In other words, a party bringing such a contravention application should be very sure of his or her grounds, in terms of the contravention alleged.
As a consequence of the limitations to the application of section 65E to contravention proceedings, in the absence of any similar constraints, section 60B has a wider reach in such proceedings. In parenting proceedings, the importance of particular section 60B factors varies from case to case, where there are no countervailing factors, the section 60B principles may be decisive.[5] Section 60B emphasises that parents should fulfil their parental responsibilities, so that children can meet their potential. This applies whether the parents still live together or have separated. Each parent of a child who has not obtained eighteen years has parental responsibility for the child, subject to any order of the court.
[5] See B & B (Family Law Reform Act 1995) (1997) FLC 92-755
Before contravention of parenting order proceedings are started, the court has previously determined the circumstances that will best enable a particular child to meet his or her potential. This occurs whether the orders are entered into by consent or after a defended hearing.[6] Hence, when parenting orders are made, they reflect the composite effects of section 60B, the object and principles contained in Part VII, as well as section 65E – the paramountcy principle.
[6] See Harris & Caladine & Commonwealth Attorney-General (1990) FLC 92-130
Consequently, continuing compliance with operative parenting orders, prima facie, defines the manner in which a child’s best interests are promoted. Compliance ordinarily ensures the optimal application of each of the objects in section 60B to the child and his or her parents’ particular circumstances. In this case, the relevance is that one of the objects of the Act contained in section 60B is that children have a right to regular contact with each of their parents and others who are significant to their care. That is the overriding importance of the objects of the Act to this particular case. In December of 2003, Warnick J determined that it would be in S’s best interests that a contact order be made and his right to have regular contact with his father be recognised.
Order 3 of the orders of 12 December 2003 is a contact order. Section 65N sets out the general obligations created by such a contact order. It reads as follows:
“(1) - This section applies if a contact order is in force in relation to a child.
(2) - A person must not:
(a)hinder or prevent a person and the child from having contact in accordance with the order;
or
(b)interfere with the contact that a person and the child are supposed to have with each other under the order.”
The orders of 12 December 2003 incorporated the section 65N statutory obligations. Justice Warnick determined that the contact arrangements set out in the order was the best mechanism to ensure that S’s best interests were served. The parties are each bound by those orders. Accordingly, the latitude of a person to disregard such orders is circumscribed, particularly by the provisions of Division 13A of the Act.
In the case of Palejs v Palejs, Federal Magistrate Ryan (as she then was) detailed the obligations incumbent upon a person bound by a parenting order made under the Family Law Act 1975 as follows:
“A parent who has a residence order, as well as an order that the child have contact with the other parent, has a significant responsibility. This responsibility arises by operation of the Act itself and is discussed in some detail in the case law. I am satisfied in circumstances where a parent has a child who has some reluctance to participate in contact, that they must discuss the child’s reluctance, reason with the child in relation to the factors that are concerning the child, persuade the child to another point of view that will facilitate compliance of the orders, and ultimately direct the child to attend contact. It is a considerable burden.”
One of the issues in this case, if not the central issue, is whether the mother has discharged the considerable obligations cast upon her by section 65N. It is the mother’s position that she has done all she can to facilitate contact, in the face of an obdurate but insightful child, who for valid reasons, refuses to go on contact visits. Essentially, it is her position that she has done all that she reasonably can do.
The father points to the fact that the mother took some considerable period of time to apply to the court to suspend the orders and the period of non-compliance with them is a considerable one. In those circumstances, it is his position that the mother has failed in her obligations to act proactively in facilitating contact between him and S and her position cannot be regarded as reasonable. The position is complicated by reason of the involvement of FACS in the matter until at least March of 2006.
The specific provisions of the Family Law Act, which deal with the consequences of a failure to comply with orders and other obligations that affect children are set out in Division 13A. The expression “contravened an order” is defined in section 70NC as follows:
“A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a)where 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; or
(b)otherwise – he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.”
Section 70NE defines the meaning of “reasonable excuse for contravening an order”. A reasonable excuse includes the circumstances set out in sub-sections (1A), (2), (3) and (4) but is not limited to them. In a different context, the High Court has found that the expression “without reasonable excuse” should not be defined solely by reference to the contents of the legislative provision in which the phrase appears.[8] Accordingly, whether a person has a reasonable excuse for contravening an order is not confined to section 70NE(1A), (2), (3) and (4). In my view, the expression “reasonable excuse” is capable of being defined by the ordinary meaning of the words.
[8] See Northern Territory of Australia v GPAO (1999) 24 Fam LR 253 at 258 per Gleeson CJ and Gummow J
The relevant provisions of section 70NE are as follows:
“(1A)[Lack of understanding of obligations] 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.
…
(3)[Breach of contact order to protect health or safety] A person (the respondent) is taken to have had a reasonable excuse for contravening a contact order in a way that resulted in a person and a child being deprived of contact they were supposed to have had under the order if:
(a)the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).”
As I understand matters, it is not the mother’s position that she did not understand the obligations cast upon her by the orders made on 12 December 2003. Rather, it seems to be her position that she believed that it was necessary for her to withhold S from contact to protect his emotional wellbeing.
However, in addition, as I understand matters, it is also her position that she has done everything reasonably open to her to facilitate contact between S and his father. Essentially, it seems to be her position that S, given his age at the time of the contravention and his wishes in regards to the contact arrangements, is a free agent, so far as contact is concerned. At the time of the alleged breaches S was less than 12 years of age.
Clearly, circumstances which may be objectively reasonable in regards to a child, say, who is 16 years of age, may not be objectively reasonable when applied to a child of much younger years, say, 5 or 6. Stevenson v Hughes[9] was concerned with a child who was aged about 5 years at the time of a number of contraventions. Firstly, in regards to telephone access, the mother wrote the father’s telephone number and attached it to the wall above the telephone, indicating to the child she could telephone her father whenever she wished. Secondly, when the father telephoned, in response to an invitation from her mother to speak to her father, the child answered “no”. The mother then terminated the call. In addition, in regards to physical access, the mother drove the child to the father’s home. When the mother and child arrived at the father’s home, the child began to cry and refused to leave the motor vehicle. The mother indicated to the father that she was unwilling to force the child to leave the vehicle, in the face of her refusal to move and her obvious distress.
[9] See Stevenson v Hughes (1993) FLC 92-363
In each case, the mother was found to have contravened the orders without reasonable excuse. This was the background to the comments made by Nygh J, to which reference was made in the earlier proceedings, namely:
“…there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it. It is quite clear that such an approach is wrong and that the wife in this circumstance, clearly, was in breach of her obligations under the order.”
O’Brien[11] was a case which dealt with a child of about 9 years of age. Orders had previously been made which contained a notation that if the child concerned did not wish to go on access it would be open to her to advise the father of this fact. Following a contested hearing, this notation was removed. Smithers J considered that the mother concerned had an obligation to tell the child that she must go on access, regardless of the child’s wishes in the case.
[11] In the marriage ofO’Brien 16 Fam LR 723
Matthews v Millar[12] concerned an ex nuptial child of about 9 years of age. The proceedings were not brought under the Family Law Act 1975. However, the circumstances were broadly similar to the present case. Hodgson J found that the unwillingness of the child to go to spend time with her father was strongly held and was based on an expressed dislike of him, which had arisen from the child’s own experience of him, but also as a result of what she had been told about him by the mother. In the judgment, his Honour said as follows:
“In all these circumstances, it does seem to me that it was reasonably required of the defendants under the orders which had been made, to take reasonable steps to bring about or to seek to bring about a change in the child’s attitude. The first defendant says, and I believe her, that she does not really know what she could do in this regard apart from undergo counselling or have the child undergo counselling.
The fact is, it would seem, that notwithstanding the long non-compliance with the court order, no steps whatsoever were taken by the defendants with a view to bringing about that counselling until this was raised in their affidavits, as I have previously indicated. My view therefore is that there has been in fact a breach of the court order because I do not think that the defendants have in fact done everything reasonable to bring about compliance with the order.”[13]
[12] Matthews v Millar 12 Fam LR 205
[13] ibid at page 208
Accordingly, Hodgson J pointed to the need for a parent, who is bound by a contact order, to be proactive in regards to bringing about compliance with a court order. It is clear from the authorities that this is a positive obligation. Whether a respondent has discharged his or her duty in this regard must be judged by an objective standard. Accordingly, in the present case, it is not sufficient for the mother merely to think that she has done all that is possible or hold a subjective view that it is not appropriate for S to go on contact visits with the father. In Kelly & Kobelnek[14] Justice Hannon expressed the test as follows:
“In my opinion 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.”
[14] Kelly & Kobelnek unreported decision of Justice Hannon Family Court of Australia at Hobart delivered 10 March 1998
Section 70NE(3), which is the sub-section which provides excuse for contravention of a contact order, on the grounds that such a withdrawal of contact is necessary to protect the health or safety of either the child concerned or some other person, is not unlimited in its scope. The deprivation of contact must be no longer than was necessary to protect the health or safety of the child concerned.
In my view, once a decision is made to withdraw a child from contact, it is incumbent upon the person who has made that decision to review it periodically. Circumstances change. Threats dissolve. Solutions can be found to difficulties. Children may become more amendable to either direction or inducement. As previously indicated, the tenor of Division of 13A is that the entitlement of a person, bound by a contact order, to deviate from that order, is closely controlled and subject to be judged by reference to an objective standard. No doubt this legislative change reflected community concerns that such orders were too frequently breached.
Such community concerns also appear to be reflected in the pre-requisite standard of proof required to establish a breach. The standard is no longer the criminal standard but is the civil standard of proof on the balance of probabilities.[15] This is also the standard of proof to be applied in determining whether a person, who has contravened an order, affecting children, had a reasonable excuse for that contravention. In applying this civil standard of proof, I must also have regard to the matters set out in section 140(2) of the Evidence Act 1995.
[15] See Family Law Act section 70NEA
The evidence
In his reasons for judgment, Warnick J summarised his views, regarding the reliability of the parties in the proceedings before him in 2003, as follows:
“The level of conflict and competition between the parties is high. The evidence is fairly clear that they had a dysfunctional and toxic relationship for a long time.
The degree of subjectivity in the evidence of each is high. For example, there is strong evidence of involvement of S in conflict by each parent. Yet each claims innocence in this regard and accuses the other.
I consider the evidence of each party so lacking in objectivity, so coloured by their long-standing personal conflict, as of limited use on the residence issue.”
I am of course not bound by his Honour’s findings and must form my own impressions of the witnesses from their appearance before me in the witness box. Neither party struck me as being deliberately dishonest, but like Warnick J, I do not think either of them can be considered completely reliable. Undoubtedly the level of mistrust between the parties is extreme and their ability to communicate effectively with one another is practically nil. Accordingly, each has a tendency to assume the worst of the other. Both parties view the other through a distorting prism of hostility, which has consequences for the objectivity of each of their evidence. Regrettably, these factors have resulted in the polarisation of the respective positions of the parties, a tendency accentuated by the adversarial nature of these proceedings.
The parties seem incapable of approaching the problem of S not wishing to spend time with his father in a collaborative fashion. My impression of the mother is that she does not see this as constituting potentially a problem or deficit for S, in the long term, in the sense that he may lose his relationship with his father and this may have consequences for his development as an adult and his personal sense of identity.
Rather, she sees the issue as being a problem for her, in the sense that she is embroiled in more court proceedings with the father. In her estimation, the problem is solely caused by the father and he needs to do something about it, rather than her. Her bitterness towards the father, for instituting these proceedings against her, was palpable during the hearing before me. I suspect for many years it has been the mother’s view that S’s relationship with his father serves no useful purpose for S. This is hardly a helpful frame of mind to apply to finding solutions to the contact issue.
My impression of the mother is that she is dogmatic and stubborn. She will consider no solution to the problem of S not wishing to visit his father other than the one proposed by her, namely that S should attend counselling with his father. I am suspicious that she is aware that Mr B, a person who is not verbally adroit, is likely to be uncomfortable with such a medium, which he will find both confronting and unhelpful.
The solution to children not wishing to go on contact visits is very often a combination of “carrot and stick”. No doubt the mother thinks this is a simplistic analysis in this particular case. However, the authorities make it clear that parents are required to direct their children to attend contact visits, in appropriate cases. In my view, it is also the law that a parent, in the position of the mother, is required to engage actively in finding solutions to the problem of non-compliance with contact orders. This may require some level of lateral thinking. I am concerned that the mother, because of her hostility and suspicion for the father, has failed to be sufficiently proactive in the case.
As I was at pains to point out to both parties, in August of 2006, I was concerned that each of them had failed to apply themselves to finding some solution to the difficult issues which prevail in this case. There has apparently been not the slightest sign of a breakthrough, since I made those comments. The mother did not respond to my suggestion that she propose some activity, which might be appealing for S to engage in with his father. From her point of view, the only solution is counselling.
From the father’s perspective, the only solution is an immediate resumption of the orders of December 2003. In December of 2006, after non-compliance for a period of twelve months, the matter is not further advanced. My impression is that the parties have mutually absolved themselves of responsibility for the matter and leave it to the court to find a solution.
The father presented as helpless and bitter. He was not an articulate witness. I have no doubt of his love for S and accept that he is hurt and perplexed by the current situation. However, it is simplistic for him to lay the fault for the present state of affairs solely at the mother’s feet. He must accept some responsibility for the poor state of his relationship with S.
In my estimation, the father has understated the extent of his difficulties with alcohol and the level of difficulty in his relationship with S. My impression is that he and S currently have few common interests and have drifted apart. Just as the mother has responsibilities to foster and encourage S’s relationship with the father, so too does Mr B have responsibilities to be proactive in developing his relationship with S. It is of concern to me that Mr B has no real suggestions as to how his relationship with S may be restored. It is in my view naïve and simplistic for Mr B to consider that the orders of 12 December 2003 can be reinstated without a great deal of effort and commitment on his part.
The parties have very different views as to the nature of S’s current relationship with his father and the factors which have influenced that relationship. In this regard, the evidence of Ms McKenna is crucial. She provided an objective and expert assessment of the relationship and provided a conduit for S’s views to be expressed.
The difficulty with Ms McKenna’s evidence is that she did not interview Mr B at all or observe him with S. The information for Ms McKenna’s assessment came solely from S and Ms B. However, I am satisfied that Mr B was given an opportunity to take part in the assessment, something which he declined. In all these circumstances, I found Ms McKenna’s evidence to be instructive and considered. She is a highly qualified psychologist and I accept her evidence.
a) Ms McKenna’s evidence
Ms McKenna saw S in late August and early September of 2006. Obviously this was after the father had instituted the contravention proceedings. However, I accept the mother’s evidence that in late May she floated the possibility of S attending an independent expert with Mr B’s legal advisors with a view to resolving the contact impasse regarding S. It also is the case that S and Mr B attended two “father and son sessions” at Relationships Australia prior to S meeting Ms McKenna. The first such session was a success but the second was not, as Mr B terminated it.
Ms McKenna described S as a bright and articulate child. In terms of why S believed he had been brought to see her, Ms McKenna reported as follows:
“S was aware as to why he had come to see a psychologist and stated “So you can tell the Court what is happening to me at my father’s house because no-one believes my mother.” He stated “I have been telling my Mum for some years that my Dad doesn’t love me but she hasn’t been listening. She would say your Dad really does love you…Mum has finally woken up and listened. Now I want the judge to listen.” S informed that in January 2006, he categorically refused to visit his father and told his mother that she could not make him go. He threatened to run away if he was made to go to his father’s and could not understand why the adults around him could not see that his father’s behaviour towards him was unacceptable.”
S had many serious criticisms of the father, which he made to Ms McKenna. These included that Mr B was often seriously intoxicated during contact visits, to such an extent that he had vomited and was incapable of walking properly. S reported that he was frightened of his father, when he was drunk. He also complained that Mr B took him to the hotel during contact visits. S also complained of feeling ignored by his father. In addition, S complained that his father was growing marijuana and had a number of illegal firearms in his home. S also complained of feeling uncomfortable with a person, who had moved in to share his father’s home.
These various complaints were put to Mr B, during cross-examination. He denied them. In particular he said it was “phooey” that he had a drinking problem of the magnitude described by S. He also denied any involvement in criminal activities or with firearms. I do not believe that it is appropriate that, in the context of these proceedings, I make any findings about such criminal behaviour. However, I found the father’s denial of excessive drinking and the level of his visits to the hotel with S to be unconvincing. On balance, I also consider there is a very significant level of dysfunction in S’s relationship with his father and this dysfunction has persisted for many years. In my estimation, Mr B is either being disingenuous about the level of difficulty or is in a state of denial about it.
Ms McKenna described S as having been “angry” with his mother up until January of this year, at which stage she [the mother] finally accepted that S did not want to go on contact visits with his father, until the situation improved at the father’s home, so far as S was concerned. This accords with the mother’s own evidence. I accept it to be the case. As I have already observed, one of the most discernable components of the mother’s demeanour throughout the proceedings was her resentment that she had been brought to court by the father. The mother had no wish to involve herself in a further confrontation with the father in court, which would potentially involve her in expensive litigation. Undoubtedly it would have been her preference for S to have continued to visit his father. Although I have little doubt that S was and is well aware of the mother’s extreme level of hostility for the father. Accordingly, I accept the mother’s evidence that she was facilitative of contact up until January of 2006.
In her report, Ms McKenna provided the following opinion and recommendations:
“S is an 11-year-old boy (who will turn 12 in October) who up until last year has reluctantly spent time with his father at his home in H S. For some time he has complained to his mother about his father’s disinterest in him and his concerns about his father’s drinking behaviour. He has feels angry that his mother did not take his concerns seriously until he threatened to run away if he was required to visit his father’s home. He has told his father why he does not want to visit him however; his father dismisses his concerns and does not take these seriously. In my opinion, Mr B’s drinking behaviour, his illicit drug dealing and the unsecured firearms around his home place S in an unacceptably high-risk situation. It would also appear that the quality of the relationship between S and his father is impoverished, which S interprets as parental rejection.
I do not believe that his mother’s views or those of any other party have influenced S’s perceptions of his father. He is a bright intelligent child who is aware that his father’s behaviour is inappropriate and who feels unsafe when in the care of his father. S has not given up on this relationship and wishes for things between he and his father to improve. He believed that this could be achieved through counselling however, was sorely disappointed when his father refused to continue his involvement in the counselling process. While I am of the view that father/son counselling would be beneficial I am not sure that Mr B would willingly participate in this process. If he is directed to attend counselling he may either reject this outright and hence relinquish contact or he may attend counselling but not participate at a level that would enable effective change. Either way the relationship between father and son is unlikely to improve.
S is prepared to spend time with his father so long as this occurs away from his father’s home and revolves around them participating in joint activities. Such an arrangement would ensure that the risks of Mr B being intoxicated are reduced. It may also allow fro increased dialogue between father and son and reduce the feelings of parental rejection that S is currently experiencing. Even if this arrangement does not help in improving the father/son relationship it will at the very least enable S to spend time with his father engaging in activities that are enjoyable rather than being present in his father’s home where he feels isolated and rejected. ”
As can be seen, S is prepared to spend time with his father if a number of conditions are met. In her evidence, Ms McKenna suggested a number of potential activities for S to engage in with his father. These included mini golf, movies, bowling and fishing. I also suggested some possible activities, when the matter came before me in August of 2006. The discussion of such activities by S and Mr B forms the basis of the order made on 7 December 2006, that the two attend mediation with Ms McKenna in order to implement her suggestions regarding the resumption of the relationship between S and his father.
For reasons already provided, I am concerned that the mother herself was unwilling to explore these suggestions at an earlier stage. However, it was also incumbent upon the father, given the level of dysfunction in his relationship with S, to also explore such issues. However, my impression of the father is that he is either “shell-shocked” or in a state of denial about the issue.
Throughout the proceedings to date, the father’s legal advisors have been critical of the mother for failing to bring an application to suspend the contact orders of 12 December 2003. Such an application was only brought in the mother’s amended response filed on 6 October 2006. The mother gave evidence that she was unaware that she should bring such an application, sooner rather than later. The mother’s solicitor also assumed some responsibility for this omission. In the short to medium term, both parties have chosen to concentrate on the contravention proceedings rather than on some process to change the contact arrangements in place in order to provide a regime more suitable to S’s needs. As I have already observed, this has led to the respective positions of the parties becoming increasingly polarised. This is regrettable.
b) The first count – the incident of 26 January 2006
The mother has no personal knowledge of what occurred between S and his father during their holiday to P in December of 2005. It is not necessary for me to make findings about the holiday specifically. However, the father acknowledged that he “kicked [S] on the bum” during the holiday for his rudeness. The father also expressed his concerns that S was becoming increasingly “stuck in the closet” was “a loner” and was “not mingling” with visitors. In my view, these descriptions are indicative of the significant problems in S’s relationship with his father, which is the background to the events which took place at a party held at the father’s home on 26 January 2006.
The father acknowledges that he had “several Jack Daniels and waters to drink” at his party but denies being intoxicated. It is the father’s position that S was annoyed with him during the party because he [the father] did not pay him sufficient attention. It is the mother’s position that at 8.30pm she received a telephone call from S, who was upset and complaining that his father was “vomiting, screaming and swearing” and, as a result, wished the mother to come and collect him. The father acknowledges that S did indeed telephone his mother from the father’s home.
On balance, I consider that the mother’s account of the incident is more likely to be the correct one. It is the mother’s position that she judged it necessary for her to retrieve S from a potentially unsafe situation. This incident led to the mother making a notification to FACS and, whilst that notification was being investigated, withdrawing S from contact with his father. In my view, the mother’s notification to FACS cannot be regarded either as spurious or maliciously motivated. Certainly FACS proceeded to investigate the notification and interviewed S.
It seems that officials within FACS advised both the mother and the father that S should not visit his father until the investigations had been completed. Due to the long standing acrimony in the parties’ parental relationship with one another, it was not possible for them to discuss the issue directly with one another and more importantly what should occur when the FACS investigation was completed.
In CKS & DRD[16] Federal Magistrate Scarlett said as follows:
“I am of a belief that a person who makes a report to the appropriate authority, namely the Department of Community Services, relating to child abuse, is entitled to rely on the advice that she receives from that Department, at least in the short run and, as such, it would constitute a belief on reasonable grounds that the action that she took was necessary. The action that she took was the action she was advised to take by the Department.”
I share Federal Magistrate Scarlett’s view in this regard. In my view, it was reasonable for the mother to withdraw S from contact with his father for the remainder of the 2005/2006 school holiday period. As a result of these matters, I have come to the view that the first count cannot be substantiated.
[16] CKS & DRD [2002] FMCAfam 218 at paragraph 15
c) The second count – the weekend of 24 to 27 March 2006
FACS completed its investigation into the mother’s notification on or around 24 March 2006. A letter was sent to each of the parties advising that the Department had found claims that S had been subjected to neglect, physical and emotional maltreatment by the father to be unsubstantiated. It seems clear that the parties themselves did not discuss what the implications of this finding were, so far as the re-application of the contact orders of 12 December 2003 was concerned. It also seems clear that the mother was dissatisfied with the somewhat bland dismissal of her notification, which lacked any detail as to why the Department had reached its conclusion and specifically what its implications were. The situation was a delicate one from all parties’ points of view, including S’s.
It also seems to be clear that neither the father nor the mother had considered what should occur once the FACS investigation had been concluded. From both their points of view, it appears naïve to think that the father could simply arrive at S’s school on the afternoon of 24 March and collect him as if nothing had happened. It is the mother’s position that the father made no attempt to collect S from his school, either on the weekend starting 24 March or thereafter. The father confirms that he was advised by D G, a FACS worker, not to go to the school around this time and, in the light of this advice, decided that he would not “rock the boat” in this regard. This was the beginning of the impasse between the parties, which has deepened as time has passed.
The mother herself made no suggestions as to how S’s relationship with his father could recommence. The father did not apparently wish to create some sort of confrontation with S at his school. He did not go to the child’s school on the particular Friday afternoon in question. The father had not contacted the mother about the issue. In fact in February S had told his father he did not wish to see him. Both the father and mother did nothing on the weekend of 24 March 2006. In all these circumstances, I do not think that count two can be made out.
d) The third count – the weekend of 19 to 22 May 2006
This impasse between the parties continued throughout April and into May of 2006, with the father not going to S’s school to collect him and the mother having no suggestions as to how contact could be resumed, certainly no suggestions which she was prepared to forward to the father.. My impression is that she hoped the father would meekly accept what she believed was S’s clear indication to him that he wished to have no further dealings with his father. It was also during this period that she requested FACS to re-visit her earlier notification. It was clearly her view at this time that S’s emotional wellbeing warranted that his views in regards to contact with his father should be respected.
It is the father’s position that the mother has fabricated her concerns about S’s wellbeing. In the light of Ms McKenna’s report, I do not think that this is the case. Clearly S remained a somewhat emotionally vulnerable child. The father confirmed that he believed that S was unhappy at this time. It seems clear that there was no contact between S and his father, apart from some limited telephone communications on 17 and 21 February 2006. During those conversations, S apparently told his father that he did not wish to see him. It is the father’s view that the mother has in some way manipulated S to say these things but, ostensibly at least, at this time, he seems to have respected S’s views.
The mother acknowledges that she sent the father an SMS text message stating as follows:
“S has made himself quite clear to you twice now but just for the record he wants you to stop drinking, apologise for all you have done to him and get advice about parenting before he will agree to see you again so tell your lawyer the truth and respect S’s decision and sort your life out or take this to court as S has not changed his mind and will be happy to tell a judge what you did to him.”[17]
[17] See father’s affidavit at paragraph 12 and the mother’s affidavit at paragraph 16
This message can hardly be described as conciliatory. The father was highly suspicious of the mother, but regardless of his suspicions, there is no evidence to substantiate his claims that the mother was actively manipulating S’s views. Certainly, Ms McKenna does not believe this to be the case. It is the mother’s position that she was supporting S for valid and understandable reasons. In my view, these reasons are objectively reasonable.
One of the difficulties in this case is that FACS appears to have sent mixed messages to the parties concerned. After the mother had reiterated her concerns to FACS, on 17 May 2006, Ms J the Manager of FACS at P wrote to Mr B in the following terms:
“I refer to our recent conversation where I advised that I had received a complaint about the recent investigation of the circumstances of your son S B.
Having reviewed the matter it is my opinion that the finding of “unsubstantiated” was the appropriate finding.”[18]
[18] See Annexure B to the father’s affidavit
On 2 June 2006, after Ms B had apparently requested an interview with Mr J, the latter wrote to the mother in the following terms:
“I refer to our meeting this morning about the outcome of the review into the investigation process regarding your son, S B. Your main concern is the word unsubstantiated as you are of the view that this implies your son was not believed.
During the child protection investigation your son stated to FACS staff that he does not want to be with his father while he consumes alcohol and appeared to become anxious about past and future access visits. It was apparent from your son’s decision not to have contact with his father that access visits had deteriorated. Your son’s concerns were acknowledged and seriously considered.
FACS was unable to confirm from various report that maltreatment as defined in the Community Welfare Act 1983 had occurred although the reports do suggest a degree of physical and emotional risk to your son if access visits continue and his father consumes alcohol.”[19]
[19] See Annexure B to the mother’s affidavit
Again, as is self-apparent, the parties had no facility to discuss with one another what were their respective views of the FACS investigation. I suspect that the mother took some vindication from Ms J’s letter. On the other hand, it seems to be the father’s position that the mother’s refusal to make S available for contact with him became more untenable by virtue of FACS declaration that the notification to them remained “unsubstantiated”.
The father acknowledges that he did not attempt to telephone S after 21 February 2006. It was the father’s position that he hoped S would reconsider what he had said to him and the orders of 12 December 2003 could then be reinstated.[20] From the mother’s point of view, “the ball was in the father’s court” about the issue and she did not feel inclined to contact him to discuss the issue in any great detail. I consider that the mother was somewhat naïve to think that the issue would so easily go away, as she apparently hoped.
[20] See father’s affidavit at paragraph 20
In my view, given the mother’s responsibility to be proactive about the issue, as time went on, her position in regards to not suggesting any proposal to the father in regards to contact being resumed became increasingly more untenable. Undoubtedly the issue would fester and the difficulties become more pronounced as time progressed. The question is whether, in objective terms, her lack of action in this regard reached the point where she should be regarded as culpable in regards to the on-going breach of the orders, particularly in the light of a lack of formal application to the court.
On 19 May 2006, the father did contact S by telephone and inquired of him whether he was willing to come to his [the father’s] home after school that Friday. The father acknowledges that his overture in this regard was initially rebuffed by S. Later that day however, Mr B received a text message from S and later a telephone call from him, indicating that he [S] was willing to see him the following day. Clearly, this should have been a most welcome development from both the father and the mother’s point of view. My impression however is that this potential break-through was mishandled and the opportunity for progress to be made was lost.
A series of SMS text messages passed between the father, S and the mother on the Saturday morning of 21 May 2006. It is clear to me that it was S, who was the source of the overture at this time. The parties themselves did not communicate directly with one another, rather they allowed S to send brief written electronic messages about the matter and when S went for a bicycle ride, the mother intervened with her own brief messages. Ultimately at about 11.07am, the father received a SMS text message from the mother stating “OK he is home now”. The implication being that the father should come to the mother’s home to collect him.
At this juncture, the father dispatched his nephew-in-law, G C to collect S. The reason the father gives for nominating Mr C to perform this important task was that he had a “sore foot”. Regrettably the father did not advise the mother of his incapacity or indicate he was sending a intermediary, specifically Mr C. The necessary interchange between the mother and Mr C did not go well.
It is the mother’s position that S had previously told her that he was frightened of Mr C because Mr C had acted in a drunken and aggressive manner towards him on the occasion of the father’s party held on 26 January 2006. The mother admits she became angry, when Mr C arrived at her home and called him “a drunken prick”, in addition to directing other profanities towards him. Given what had occurred in January, the mother was not willing to allow S to go with Mr C.
My impression of the mother is that she is no “shrinking violet”. She does not seem to be fearful of the father or be too timorous to pick up the phone and talk to him, when she feels so inclined. Following Mr C’s departure, she was minded to pick up the phone to give Mr B a piece of her mind for sending Mr C to collect S. The parties had an acrimonious conversation. No alternative suggestions were put forward as to how S could be collected or otherwise spend time with his father. No compromise was suggested. Rather, my impression is that the parties exchanged angry words. The small window of opportunity to advance the matter slammed shut. My impression is that both parties blame the other for this lost opportunity.
In my view, the father handled the matter insensitively. I do not find his reason for sending Mr C to be particularly compelling. Certainly, as things turned out, it would have been preferable if he had raised his inability to come to the mother’s home and his wish to send a proxy earlier. It would have been tactful, on his part to attend personally to collect S. Perhaps the father feared there would be some confrontation with the mother. I do not know. The mother admits she lost her composure when Mr C arrived.
I have to make some judgment, in the overall context of what had occurred up to this stage, whether the mother’s actions were objectively reasonable. An analysis of the SMS text messages which passed between the parties on the morning of 20 May 2006, indicate that, ostensibly at least, the mother wished S to visit his father, if this was what S wanted. The messages involved are terse but are directed to achieving this end. The event which derailed the process was the arrival of Mr C. I accept the mother’s evidence that S did not wish to go with Mr C and, given what S had previously told her about Mr C, she had objectively reasonable grounds for believing that it would be detrimental to S’s emotional health, if he went with Mr C.
Undoubtedly matters could have been handled better thereafter. Up until this stage the mother had been largely passive in the face of S’s refusal to visit his father. As the events of this day show, the mother was and is capable of communicating with the father. It seems clear that she views the father’s decision to send Mr C as, at best, insensitive and misjudged and, at the worst, provocative.
Could the mother have done more in the period which followed after 20 May 2006, given at this stage S had indicated a wish to see his father? Clearly the mother’s angry exchange with Mr B made it less likely that something could be achieved in the short to medium term. The mother’s response to the issue was to formally suggest, through her solicitor, that the parties obtain a family assessment report in respect of S. The father’s response to this proposal was that he had no objection to such a report provided he did not have to pay for it. Apart from the issue of finances, there is no indication to show he evinced any particular enthusiasm to take part in such a process. In my view, the mother’s proposal was a sensible one, and one which was intended to advance matters. It is my view that, when judged by an objective standard, she behaved reasonably on 20 May and in the period afterwards. For all these reasons, this count cannot be made out.
e) The fourth and fifth counts – 21 March 2006 and 30 May 2006
For the reasons provided above, I am of the view that neither of these counts can be made out.
f) The sixth count – telephone contact
The provisions of order 3(c) of the orders of 12 December 2003 are not specific. No time is specified for the telephone contact to take place. More specifically, no duty is placed on the mother to make any call or ensure S is near a telephone at any specified time. The orders merely state that there is to be telephone contact on one occasion each week. The orders do not specify how that telephone contact is to take place.
The father acknowledges that he telephoned S on 17 and 21 February 2006. During these telephone conversations, the father states that S told him he [S] was concerned about the father’s level of drinking and expressed a view that he [S] felt his father was not interested in him.
In this affidavit material, the father suggests that the source of these views is not S himself but rather that S was parroting the views of his mother. In the light of my findings in this case, particularly those based on the evidence of Ms McKenna, I do not think that the evidence does suggest that the mother has actively attempted to manipulate S’s views, although she is undoubtedly hostile towards the father, something of which S is well aware.
In his affidavit material, the father deposes as follows:
“I received no further telephone communication from S at all and whilst I did not instigate telephone contact I thought it would be best for S to reconsider what he had said and hoped that he would then telephone me and attend in accordance with the orders of the court as had occurred since the decision and orders 12 December 2003. This did not occur. I did not see S for the first half of the Easter school holiday on 7 April 2006.”[21]
Accordingly, it seems that after late February the father did not pursue any telephone contact with S and the mother was content to be passive so far as the issue was concerned. Undoubtedly, S, a child of 11 years of age, is capable of using the telephone himself and has in the past frequently telephoned his father. I accept that a telephone was available to S at his mother’s home and she did not actively forbid S to telephone his father or place any barriers in the way of this.
[21] See father’s affidavit of evidence at paragraph 20
Given all the circumstances, particularly that the order which the father alleges the mother breached places no specific onus on the mother to place a telephone call to the father at a specific time, I do not believe that this count can be made out. Early authorities of the Family Court emphasise the quasi-criminal nature of contravention proceedings, which, if established, may render the contravenor liable to a penalty. Accordingly, a respondent to such an application is entitled to know precisely how he or she is alleged to have breached any particular order.[22] In this particular instant, the father has not specified how the mother breached order 3(c) other than that he did not receive telephone calls from S, although he himself did not make any such calls to S. Considerations of this kind fortify my view that it is the correct outcome that this count be dismissed.
[22] See Davis & Davis (1976) FLC 90-050 and Smit & Pickworth (1981) FLC 91-071
Conclusions
Although for pragmatic reasons, the father elected to proceed with specific counts relating to specific dates, the tenor of his application is that the mother, over a period of about five months, failed in her duty to facilitate the contact between him and S, as required by order 3 of the orders of 12 December 2003. It is common ground between the parties that there has been little, if any, contact between S and his father during this period, a situation which has continued to the present time. In the earlier reasons for judgment, I expressed my concern at the potential consequences for S of losing his relationship with his father. Unfortunately, at this point, little has occurred to advance the matter.
With a sense of disquiet, I have come to the conclusion that the father’s contravention application should be dismissed. This sense of disquiet comes from my apprehension that neither party’s behaviour in the period covered by the application can be described as blameless. In my view, a contravention application was not the mechanism whereby the father’s relationship with S could be restored. The father must bear some significant responsibility for the current poor state of his relationship with S. During the course of these proceedings, he has done little to suggest how that relationship may be rehabilitated. In making these comments, I accept how perplexed and hurt Mr B is at S’s refusal to engage with him.
It is now almost a year since S had any meaningful interactions with his father. This prospect seems to cause the mother little concern. S is twelve. He may be, as Ms McKenna suggests, a mature and insightful twelve year old, but he is still twelve. It is likely to have far reaching consequences for him, if he loses his paternal relationship at this stage of his life. I am concerned that S, at his tender age, is being left to make this important decision alone. It seems to me that both parties have failed to have proper regard to the principles set out in section 60B(2) of the Family Law Act 1975. As the Full Court said in B & B: Family Law Reform Act 1995[23] the contents of section 60B are “intended to have an impact on the approach of members of the public, especially those engaged in or contemplating proceedings under the Act relating to children…”.
[23] B & B: Family Law Reform Act 1995 (1997) FLC 92-755
I am concerned that the mother has failed to be as proactive as she might have been in order to ensure that S has some form of relationship with his father. Clearly, the conflictual nature of the parties’ relationship does not provide an environment which is particularly amenable to the parties agreeing about future parenting arrangements for S or one which is suitable to the parties discussing the difficult issues this case raises and how they may be solved. I am also well aware that the mother undoubtedly thinks that I am something of a pollyanna to think the issues can be easily resolved, certainly not without some greater insight and commitment on the father’s part.
I do not wish the mother to take from these reasons for the judgment any suggestion that the court condones non-compliance with orders affecting children. By not bringing proceedings before the court, the mother took things into her own hands, which is a perilous course to adopt. She decided that she would acquiesce in S not going on contact visits with his father. However I also accept that the issues in this case are difficult. The mother was confronted with a determined and obdurate child who, for apparently valid reasons, refused to go on contact visits.
As is implicit in these reasons for judgment, I accept that S has clearly stated to his mother that he does not wish to go on contact visits with his father, whilst issues to do with Mr B’s consumption of alcohol and behaviour during contact visits remain unaddressed. I also accept there are valid reasons why S has reached this position, which are free of manipulation or influence from the mother.
However, the fact remains that this is a significant position for a child of 11 or 12 years to have reached. The mother has made some proposals as to how the currently parlous relationship between S and his father may be mediated. Given his background, I accept that Mr B himself is not likely to be particularly comfortable with such mechanisms. My greatest concern in this case is that to a certain extent, both parties have been unrealistic and unreasonable in their response to the situation and so have allowed their positions to become completely polarised, a tendency which has been accentuated by the adversarial nature of contravention proceedings.
The proceedings are currently listed to come back before the court on 5 March 2007. In the period of the adjournment, S and Mr B are attending mediation with Ms McKenna with a view to implementing her suggestions regarding the resumption of the relationship between S and his father. The mediation may not be successful. In the period of the adjournment, it is incumbent upon the parties to consider other means whereby S may have some form of relationship with his father. I am greatly concerned that, at this stage, S’s views in regards to the matter should not be the only determinative factor.
Given the current situation, I have reached the conclusion that it would be in S’s best interests for order 3 of the orders of 12 December 2003, to be suspended until further or other order. It will be necessary for the court to consider what are the appropriate arrangements, if any, whereby S should spend time with his father in future on the adjourned date. It will be necessary for each of the parties to file and serve their proposals in regards to this issue 7 days prior to the adjourned date, together with any further affidavits in support of their respective positions. At this later stage, the court can consider any further applications made by the parties.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for judgment of Brown FM
Associate: C W
Date: 15 January 2007
[7] Palejs v Palejs [2002] FMCAfam 315
[10] Stevenson v Hughes (1993) FLC 92-363 at 79,814
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