B and H - [2007] FMCAfam 817

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & H

[2007] FMCAfam 817

FAMILY LAW – Contravention – mother not encouraging a close and continuing relationship between 13 year old girl and her father – family report indicating child “under heavy pressure to distance herself from her father” and child receives “no emotional permission from her mother to love her father equally” – no reasonable excuse – contraventions established – parenting orders varied – costs ordered.

Family Law Act 1975, ss.60CC, 70NAC, 70NAE, 70NAF, 70NEB, 117

Applicant:

NLB

Respondent:

BGH

File Number:

MLC 4281 of 2007

Judgment of:

Riley FM

Hearing date:

9 October 2007

Date of Last Submission:

9 October 2007

Delivered at:

Melbourne

Delivered on:

19 October 2007

REPRESENTATION

Counsel for the Applicant:

Mr Davis

Solicitors for the Applicant:

DS McKay & Associates

Advocate for the Respondent:

In person

ORDERS

The orders made in the Federal Magistrates Court on 11 December 2006 be varied as follows:
(a)Katie (not the child’s real name) spend with her father:
(i)Saturday 13 October 2007 and Saturday 27 October 2007 from 12:30pm to 5:00pm;
(ii)alternate weekends from 12:30pm Saturday to 5:00pm Sunday on 10 and 11 November 2007, 24 and 25 November 2007 and 22 and 23 December 2007;
(iii)from 6:00pm Christmas Day to 6:00pm Boxing Day in 2007 and in odd numbered years thereafter;
(iv)from 6:00pm Christmas Eve to 6:00pm Christmas Day in 2008 and in even numbered years thereafter;
(v)from 10:00am on Saturday 5 January 2008 to 6:00pm on Saturday 12 January 2008;
(vi)each alternate weekend commencing on 9 February 2008 and including 4 May 2008 from 12:30pm on Saturday until 5:00pm the following Sunday;
(vii)commencing on 16 May 2008, each alternate weekend from after school on Friday to before school the following Monday; and
(viii)half of the school holidays commencing with the term 1 school holidays in 2008, and, unless otherwise agreed, the first half;
(b)for the purposes of changeover:
(i)when the time Katie is to spend with her father commences or concludes when Katie is at school, the father is to collect Katie from or return Katie to school as the case may be;
(ii)otherwise, at the commencement of the time Katie is to spend with her father:
A.until the mother has access to a registered vehicle, the father is to collect Katie from her dance classes at 12:30pm;
B.from the time when the mother has access to a registered vehicle, the mother is to deliver Katie to her step-mother’s workplace;
and the father is to return Katie at the conclusion of time with her to the mother’s home.
Orders 4(a), 4(b), 4(c)(i), (ii), (iii) and 4(d) of the orders made on

11 December 2006
be discharged.
In order 5 of the orders made on 11 December 2006, the words “To give effect to Order 4(a) and (b)” be deleted.
Otherwise, the orders of 11 December 2006 remain in place.
The court finds that:
(a)on 14 January 2007 the mother, without reasonable excuse, contravened order 4(c) of the orders made on 11 December 2006 by failing to ensure Katie spent time with her father from 10:00am on 14 January 2007 until 7:30pm on 21 January 2007; and
(b)on 30 March 2007 the mother, without reasonable excuse, contravened order 4(b) of the orders made on 11 December 2006 by failing to ensure Katie spent time with her father for one half of the term 1 school holidays;
(c)on 22 June 2007 the mother, without reasonable excuse, contravened order 4(b) of the orders made on 11 December 2006 by failing to ensure Katie spent time with her father for one half of the term 2 school holidays; and
(d)on 11 June 2007 the mother, without reasonable excuse, contravened order 4(g) of the orders made on 11 December 2006 by failing to ensure Katie spent time with her father on her birthday from 10:00am until 2:00pm.
The respondent pay the applicant’s costs in the sum of $5,750, in the event that these orders are not complied with.

NOTATION

Pursuant to ss.62B and 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 Attachment A and these particulars are included in these orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 4281 of 2007

NLB

Applicant

And

BGH

Respondent

REASONS FOR JUDGMENT

Background

These are the reasons for orders that were made on 9 October 2007. The father of Katie (not the child’s real name), born in 1994, and now 13 years of age, brought a contravention application against Katie’s mother.
Katie’s mother and father lived together for about one year. They ceased cohabiting before the father knew the mother was pregnant. Both the mother and father have since married other people. The mother has been Katie's primary carer throughout her life. Katie is an only child. The father pays for Katie to attend a private girl’s school. Its fees are approximately $14,000 per year. The father’s child support is set at $7,500 and the school fees are offset against that liability.
Orders were made by consent on 4 May 1998 when Katie was not quite four years old. They provided for Katie to spend four hours with her father on alternate weekends and special days. There was also a notation that, when Katie turned five, her parents would consider Katie spending alternate weekends from 10am on Saturday to 10am on Sunday with her father. Between 2000 and 2006, Katie generally spent alternate weekends with her father.
However, between June 2006 and November 2006 Katie spent no time at all with her father. He commenced proceedings which culminated in consent orders being made on 11 December 2006. Under those orders, relevantly, Katie was to spend with her father:
a)half school holidays, and in default of agreement the first half;
b)if her birthday fell on a weekend, four hours on her birthday commencing at a time to be agreed and in default of agreement from 10am until 2pm; and
c)at least 18 weekends per year from after school on Friday to before school on Monday, unless she had an early morning violin lesson, in which case she would return to her mother on the Sunday evening.
The orders provided for Katie to spend with her father at least five weekends in term 1, four in term 2, five in term 3 and four in term 4. The reason for the orders not specifying with more precision the particular weekends that Katie was to spend with her father was that Katie has dance commitments that the mother wished to take her to although the father was also willing to do so.
The amended contravention application filed on 6 July 2007 alleged five contraventions of the orders made on 11 December 2006 but only four were proceeded with. The remaining allegations were:
a)between 1 February 2007 and 22 June 2007, the mother without reasonable excuse refused or failed to ensure that Katie spent any time with her father during either term 1 or term 2;
b)on 30 March 2007 at 3:30pm at Katie's school, the mother without reasonable excuse refused or failed to ensure that Katie spent time with her father for one half of the term 1 school holidays;
c)one 22 June 2007 at 3:30pm at Katie's school, the mother without reasonable excuse refused or failed to ensure that Katie spent time with her father for one half of the term 2 school holidays; and
d)on 11 June 2007 at 10am, the mother without reasonable excuse refused or failed to ensure that Katie spent time with her father from 10am until 2pm on 11 June 2007 being Katie's birthday.
The mother denied each allegation. She admitted that Katie did not spend time with her father during the times alleged. However, she said that she had a reasonable excuse consisting of Katie not wishing to spend time with her father.
The father relied on two affidavits sworn by him, the first on 16 April 2007 and the second on 5 July 2007. The father also relied on a family report prepared by Jay Manya and dated 3 September 2007. The mother was unrepresented. However, she cross-examined the father on his affidavits. She said that she did not wish to cross-examine Ms Manya on the basis that she would not know what to ask her. The mother relied on her affidavit sworn on 12 July 2007 and was cross-examined by counsel for the father.
Ms Manya’s conclusions at paragraphs 41 and 43 of her report, which were unchallenged and which I accept, were that:
The writer formed a view that ‘too much emotional control and power’ is given to Katie at an emotional age when she is unable to handle. Katie is a bright girl. She can express herself verbally and understand concepts intellectually. However she impressed as a young girl emotionally undeveloped and under heavy pressure to distance herself from her father. It is likely that she receives no emotional permission from her mother to love her father equally.
…
Katie’s observed physical violence such as hitting her stepfather hard on the stomach out of the blue indicates her seething anger of being caught in adult issues and unable to enjoy a positive relationship with both her parents. …

The father’s affidavit evidence

In unchallenged affidavit evidence, which I accept, the father said that Katie spent time with him from 25 to 30 December 2006 in accordance with the orders. He said that their time together was most enjoyable and he believed it was a positive time for both Katie and himself. However, he said that when he collected Katie the mother closed the door hurriedly behind them, saying, “We don't want bad smells around this house.”
After that holiday, the father received an SMS message from Katie saying that she did not wish to spend time with him as had been provided in the orders from 14 to 21 January 2007. The father said that when he spoke to Katie by telephone she was unable to articulate any reasons for not wishing to spend time with him and when asked when she could spend time with her father again she answered with a sad, “I don't know.”
The father also said that the mother, contrary to the orders, failed to provide him with a schedule of Katie's dance commitments and failed to respond to his email and letter proposing certain arrangements for weekend contact. The father said that on Thursday, 15 March 2007, he left a message on the mother's mobile asking that the mother arrange for Katie to spend the weekend with him. He received a call from Katie shortly afterwards saying that she would not be spending the weekend with him. The father asked to speak to the mother but she refused to speak to him. The father told Katie that he would be collecting her from school the next day and asked her to tell her mother. However, when he attended school on the following Friday, Katie told him that she did not wish to attend with him.
The father asked his solicitors to write to the mother with a proposal for him to collect Katie for the first half of the term 1 school holidays. The father's solicitors told him that Katie contacted them saying that she did not wish to spend time with her father over the term 1 holidays.
The father's solicitor wrote to the mother proposing dates for weekend contact during term 2. The mother telephoned the solicitors and said that Katie was unavailable on three of the four proposed weekends as she had dance commitments. Eventually, it was ascertained that the only weekends in term 2 when Katie did not have dance commitments were those beginning Friday 11 May, 1 June and 15 June 2007. The father’s solicitors wrote to the mother by way of confirmation that Katie would spend those weekends with her father and requesting confirmation of a fourth weekend to satisfy the orders. The father received no response to that letter.
On Friday 11 May 2007, the father attended Katie's school at 5pm, being her usual time for concluding orchestra practice, only to be told that Katie did not attend orchestra that afternoon. The mother had not notified the father that Katie's after school activities had changed. The father's solicitors wrote to the mother asking for her to nominate an appropriate collection point and time for the father to collect Katie on

1 June and 15 June 2007. The mother telephoned the solicitors and said that Katie's after school activities had not changed. She said that there was no school on 1 June 2007 and agreed that the father could collect Katie from her home at 3:30pm on that day.
The father attended Katie's home at 3:27pm on 1 June 2007. Katie answered the door and said she was not going with her father. He asked to speak to the mother and asked whether she had packed a bag for Katie. The mother did not answer. As the father was leaving, he was approached in a threatening manner by the mother's husband, who said, “If you ever come back near this house ….”
The father's solicitors telephoned the mother on 8 June 2007 to arrange for Katie to spend time with her father on her birthday on 11 June in accordance with the orders. The mother did not answer her home telephone or her mobile telephone. The solicitors left a recorded message asking the mother to allow Katie to attend the local McDonald's on 11 June 2007 at 10am. The mother did not reply to the father's solicitors. However, on 10 June 2007, the father received an SMS message from Katie saying, “Bring all my SIMS computer games to McDonald's and I might consider coming. Making sure they are all there because I will be checking. I want them in my hand before I decide whether to go or not.”
The father attended McDonald's. Katie, her mother and stepfather arrived at approximately 10:05am. Katie asked if the father had received her SMS message. He said he had but could not find the computer games she had requested. The father asked Katie if he could buy her a drink. She did not answer, turned away and returned to her mother. Katie, her mother and stepfather then left without saying anything further.
The father’s solicitors notified the mother that he would be unable to collect Katie on Friday 15 June 2007 as he was in Western Australia attending a funeral.
The weekend of 23 and 24 June 2007 was the first weekend of the midyear school holidays. In default of agreement, the orders provided for Katie to spend that weekend with her father. However, the mother organised for Katie to attend an interstate dancing competition on that weekend without prior notice to the father.

The mother’s case

In her affidavit, the mother said that she believed that Katie's relationship with her father had broken down because of events that had occurred during contact to which the mother was not a party. She said that she believed that no amount of encouragement on her part would make Katie want to spend time with her father.
The mother exhibited to her affidavit notes that Katie had written listing the things that she did not like about spending time at her father’s house and describing an incident on the weekend of 27 and 28 May 2006. Those notes are as follows:
·I don’t like people sleeping in my bed.
·I don’t like dad sleeping in until 10:00am and leaving me alone to do nothing but play on the computer or watch TV until he wakes up.
·I don’t like dad’s milk. It gives me diharea (sic). I like REV.
·I don’t like asparagus, spinach or brussel (sic) sprouts.
·I don’t like any form of mushroom.
·I feel lonely at dad’s house because he does nothing much apart from sleep and play on the computer.
·Even though I have written letters saying these things, he just ignores them.
·When the boarder is asleep on the couch when I am there and dad is in bed, I feel like I am sleeping in a stranger’s room because the boarder’s clothes are strewn all over my room.
·I don’t like finding things such as cigarette lighters in my bedroom.
·When dad says he is going to bring a picnic, I expect him to bring a picnic and not just buy something from the shop.
[name and signature]
·I believe that I should have a say in my own life because this arrangement affects me most of all.
·I don’t think I could have followed the old orders because I have dancing and I need time by myself too.
I last went to my dad’s house on the 27^th and 28^th May 2006. I took my violin with me to get my new bow because my old one was twisted. I needed a new bow because my A.M.E.B exam was coming up soon. On Saturday dad and I went dancing and then we were supposed to get the bow, but instead dad went home. On Sunday I needed to get home early because I was going to camp on Monday, but dad wouldn’t let me come home until I played my violin for him. I don’t like playing my violin for people and I only play because I enjoy it. Dad blocked me in my room by standing in the doorway until I played for him. I felt upset because I had explained to dad that I didn’t like playing for people and he said that if I didn’t like playing for people, that there was no point in playing anymore and that I should just give it up. After that I was upset with dad and I didn’t want to see him anymore. When I finally got home, I refused to take his calls and to talk to him.
The father was cross-examined about some of these matters. He said that a business associate had stayed at his house and used the bedroom that Katie used. He said that when Katie was with him for the weekend, the business associate generally went away for the weekend but on one occasion he slept on a foldout bed in the lounge room. The father said that the linen was always changed before Katie's arrival. In relation to the allegation that Katie had found a cigarette lighter in the bedroom she uses, the father said that the business associate does not smoke but another friend who stayed over might have left a lighter in the bedroom.
I accept the father's evidence on these matters. I consider that it is entirely reasonable for the father to have friends and associates stay in his spare bedroom notwithstanding that that bedroom is also used by Katie when she stays with her father. Under the orders of

11 December 2006
, Katie was to use that bedroom for about 18 weekends out of 52 in the year. It would be unreasonable for the father to be required to preserve that room as the exclusive province of Katie when she uses it so rarely and when it could otherwise be put to good use. It is in Katie's best interests that she appreciates that her father has a social life and connections with other people. It is important for Katie to learn to accommodate the reasonable needs and wishes of other people. It is also very important for Katie’s mother to help her to gain a mature perspective on minor transgressions, rather than using them as justifications for not spending time with her father.
On the other hand, I consider that the father should ensure that the bedroom is tidy when Katie arrives and that his visitors do not leave such things as cigarette lighters in a bedroom used by a teenager. I am confident that he will take more care about such things in the future.
Regarding Katie’s complaints about food, the father said in cross-examination that he had obtained a list of foods that Katie likes to eat, such as a particular brand of cereal and so on. He said that he ensures that the food Katie prefers is available when Katie is with him. I accept that evidence. I find that the father does accommodate Katie's reasonable food preferences. Children and teenagers should obviously be encouraged by their parents to enjoy a wide variety of foods and be discouraged from becoming fussy eaters. The mother should help Katie to regard matters relating to food at her father's house as a trifling issue that can be readily resolved rather than as a reason for not enjoying the benefits of a meaningful relationship with her father.

The father said, and I accept, that Katie may have felt that she was ignored at her father’s place but in fact she was not ignored. I do not consider that it is necessary or desirable for a parent to provide non-stop entertainment for a 12 or 13 year old child. Katie herself in her note said that she needed time by herself. She can have that at her father’s place as much as at her mother’s.
In relation to the violin incident, the father admitted that he had agreed to get Katie a new bow but did not do so. He said that by the time her dance lesson finished, the shop would have been closed. Parents obviously need to try to ensure that any promises they make to their children are capable of being kept and are kept. It appears that, in this instance, the father let Katie down. However, it is important that Katie learns to keep other people’s lapses in perspective. While it was apparently important for Katie to have a new bow, it is obviously much more important for her long-term emotional and psychological well-being that she maintains a meaningful relationship with her father. The mother should help Katie to reach a mature understanding of normal human frailties.
The father admitted that he had asked Katie to play violin for him, but denied that he insisted that she played for him and denied that he had ever stopped her from leaving her room. He agreed that he had talked with Katie about playing a musical instrument to give other people pleasure and playing a musical instrument for one's personal pleasure. He denied that he had ever told Katie that she ought to give up the violin. He said that she loves playing the violin and he does everything he can to support her in the activities that she enjoys undertaking.
I consider that Katie probably felt pressured to play the violin for her father and felt that he prevented her from leaving her room until she played for him. I doubt that the father intended to seem insistent. It is natural for a parent to wish to see his child show the skills she has acquired. While it is entirely legitimate to enjoy playing music for personal pleasure, it is also very normal to enjoy playing music in groups and for the entertainment of others. I consider that, in relation to Katie's playing of the violin, the father had a reasonable point but pressed it a little too strongly. Again, this is a matter where Katie needs help from her mother to learn to keep things in perspective. It is not a circumstance that should have resulted in Katie cutting off a person who is as important to her long-term emotional and psychological well-being as her father. To the extent that the mother allowed Katie to see this incident as a reasonable basis for terminating her relationship with her father, the mother seriously failed Katie in her role as her primary carer.
In this regard, I note that Ms Manya said at [44]:
During her interactions with her father, Katie seemed to relate reasonably well and spoke with him quite positively. The father listened to the child and assured her that within reason he would try to make her happy and comfortable during her time spent with him. It seemed from their conversations that the father could have paid more attention to Katie in the past. Her father also as a quiet person sometimes may not demonstrate his affection for his daughter in a way that makes sense to Katie. However this difficulty between the father and daughter is not something that requires severing their relationship totally. Katie needs to learn to relate to the outside world where communication with many people is often a difficult task. The mother needs to assist the daughter to work on her difficulties with her father rather than suggest to Katie that if things do not go as she expects, she does not have to sustain important relationships in her life. (emphasis added)
The mother in cross-examination of the father asked whether he presented Katie at the age of 12 “with a sexually orientated book that was well and truly beyond her years and age” and which “explained sexual acts”. The father said that Katie had asked him questions that he thought she felt unable to ask her mother and he answered her as factually as he could. He said that he always used the correct terminology. He said that he got hold of a book called Everygirl, the follow on from Everywoman, and gave it to Katie so that she could read it herself. He said that subsequently he and Katie had discussions about the contents of the book.
I consider the book Everygirl is entirely appropriate reading for a 12 year old girl who has started asking questions about sexual matters. It is practically the prescribed text. If Katie did in fact feel unable to ask her mother about such matters, I consider it to be very unfortunate. Katie is lucky to have another parent who is willing and able to speak frankly and informatively about such matters.
The mother also asked the father in cross-examination if he had presented Katie with a tampon and given her instructions on how to use it. The father said he had never given Katie instructions on how to use tampons. He said that she had asked him about tampons. He said that there was one in the house and he showed it to her. I accept that evidence. I see nothing at all unacceptable in the father's handling of this matter. Katie is becoming a woman. Tampons are a very routine part of women’s lives. When parents are asked about such matters, it is important that they deal with the questions in a matter of fact and informative way. This helps their daughters to feel comfortable about their bodies in general and having periods in particular.
The mother also cross-examined the father about the sleeping arrangements during a holiday last Christmas. The father explained that he and his wife, and her brother and his girlfriend stayed at his wife's family's holiday house. Katie was offered the choice of sleeping in a single bed in the same room as the father and his wife or sleeping on a fold down couch in the lounge room. Katie chose to sleep on the couch. The mother asked if Katie was given any privacy. The father said that she could get changed in the bathroom or in one of the bedrooms when they were otherwise unoccupied.
These arrangements do not seem to me to be at all untoward. It is not unusual when an extended family gathers in a holiday home for people to make do as far as the sleeping arrangements are concerned. I note that Katie reported to Ms Manya that she had enjoyed the holiday with the father and his wife.
The mother also asked the father whether he had ever related to Katie that she was overweight. The father said absolutely not and if anything Katie was underweight to the point where he is concerned. The mother claimed to Ms Manya that the father purposely starves Katie because she is fat. Ms Manya considered that this accusation “is so absurd … it makes one wonder about the mother's capacity to reason logically as well as demonstrates a totally prejudiced idea that the child is not safe in the care of the father.”
In her affidavit, the mother said that Katie is adamant that she does not wish to spend time at her father's place. The mother said that Katie had threatened to run away or get out of the father's car when it is stopped at traffic lights. The mother said she is genuinely concerned that Katie will carry out these threats, exposing herself to harm. The mother said that on 2 February 2007, when the father went to collect Katie from school, she fled to the local shops, where the mother happened to be. The mother made a statutory declaration the same day describing these events.
The mother said in her affidavit that she had arranged for Katie to see a psychologist, to help her to vocalise her feelings. The psychologist was not called to give evidence. He apparently has various degrees. However, there is nothing to suggest that he has any particular experience with pubescent girls or with children who are estranged from one of their parents. In cross-examination, the mother admitted that the psychologist was an associate of the mother's husband. The mother also admitted that she had not consulted Katie's father about the choice of a psychologist or the fact that Katie was to see a psychologist notwithstanding that the mother and father have equal shared parental responsibility for Katie.
Katie wrote a letter to her father with the help of the psychologist setting out her feelings about spending time with him. The letter was dated 25 August 2006 and stated the following:
Dear Dad
When I am alone with you I feel that you are ignoring me and that you are angry with me
You spend all your time on the computer or sleep and you do not do things with me
What I want is for you to do more things with me and not ignore me
I do not want to be forced to eat things I do not like such as asparagus and mushroom soup
I feel sad and annoyed that you said that you were not going to pay my school fees because I said that I didn’t want to come and see you.
You say that you will take me horse riding if I come and stay with you but I see this as a bribe, and I do not like being put in this situation.
I have made a choice to live with mum and I am sorry if this offends you. I do want to spend every second or third weekend with you but I do not want to be ignored while I am with you. When I feel I am ignored that is you do not appear to be aware that I am there, I don’t want to be with you.
Next time I see you I would like to talk with you about what I have written
Garry and mum did not influence me in writing this letter
From Katie.
The letter shows that Katie somewhat inconsistently wants her father to do more things with her but she regards his offer to go horse riding with her as being a bribe. I regard that as being a misinterpretation. I consider the father's offer to go horse riding as being a genuine attempt to respond to Katie's claims for more attention from her father. In my view, the mother ought to encourage Katie to accept such offers from her father with good grace.
It is noteworthy that Katie stated explicitly in the letter to her father, “I do want to spend every second or third weekend with you”, but reiterated her feeling of being ignored. It seems to me to be clear that Katie does want to spend alternate weekends with her father, but that their time together would be more positive if he were to arrange some special activities for them to enjoy together.
As regards the father's threat to not pay Katie's school fees because she did not wish to see her father, I regard this as an unfortunate expression of his frustration in being unable to spend time with Katie. If he had spent regular time with Katie, as he should have been able to, he would never have made the suggestion.
The mother also exhibited to her affidavit a letter dated 13 November 2006 from the psychologist to the Registrar of the Family Court. It stated that:
Katie has discussed her relationship with her parents with me during four consultations: 21/06/2006, 28/06/2006, 25/07/2006; 25/08/2006.
She is a mature 12 year-old female of high intelligence who has a clear understanding of her circumstances and who knows what relationship she wants from her father.
On the 25/08/2006 she discussed what she wants from her father and with my assistance in identifying what she wanted to say, wrote out on an electronic whiteboard a draft letter to her father. She later hand wrote a letter [to] her father and posted it to him. Katie was quite clear in what she said and wanted.
Katie was particularly upset that her father had gone to her school and had spoken to the deputy head about the pornographic site she found on a computer which [she] was allowed to use at her father’s place. She reported that her father had told the school that this material was only available from her own home with her mother.
I believe that Katie is mature enough to know when she wants to visit her father and what relationship she wants from him. It would not be helpful to Katie’s psychological well-being if she was required to visit her father against her wishes.
The opinions of the psychologist engaged by the mother are at odds with those of Ms Manya, being the psychologist nominated by the Dispute Resolution Coordinator of the court. As stated above, Ms Manya did not share the view that Katie was emotionally mature. On the contrary, Ms Manya concluded that:
...‘too much emotional control and power’ [had been] given to Katie at an emotional age when she is unable to handle [it]. … she impressed as a young girl emotionally undeveloped ….
I prefer the evidence of Ms Manya on this issue. She is known to have expertise in cases of this nature. She conducted interviews with Katie, the mother, the father and their respective partners. She read the material filed in court. Accordingly, she had considerably more information than the psychologist on which to base her opinion.
In relation to Katie accessing pornography whilst at the father’s house, he said in cross-examination that his computer network at home had been set up so that pornographic sites could not be accessed from his own computers. However, Katie had used her laptop whilst at his house and searched for the words breast and vagina. This had resulted in pornographic sites being located. The school, in a routine scan, was able to track the path Katie had followed. She got into a good deal of trouble at school. The father said he had done everything he could to prevent the accessing of pornographic sites from his home. I accept that evidence.
The mother said in oral evidence in chief that she considered that Katie's social and extracurricular activities were very important. In particular, she said that going to her father's every second weekend would prevent Katie participating in human powered vehicle training at 7.30 every Sunday morning. These vehicles are cars powered by cycling. The mother said that the father had never been inclined to take Katie to this activity. However, the father through his counsel said that he was very willing to take Katie to any of her extracurricular activities.
Given that Katie is an active girl who does dance and no doubt participates in school sport, I consider that human powered vehicle training is not a priority, particularly if it is undertaken at the expense of a relationship with her father. On the other hand, it may well be an activity that the father would happily facilitate.
The mother also said that Katie was an important part of year 10 debutante training which she would be excluded from if she went to her father's every second weekend. Katie is not in year 10. She is in year 7. The mother is instrumental in the dance training for the year 10 students. Katie assists by being a partner for anyone whose partner is absent from training. It seems to me that while it is very nice for Katie to assist in this way, her interests would be better served by establishing and maintaining a meaningful relationship with her father.
The mother also said that Katie had never had close friendships in the school and she has had some unspecified problems. However, since she had stopped spending time with her father, her school reports had improved dramatically, she had become more able to make friends and she was a more relaxed and happy child. The mother said she had tried to encourage Katie to spend time with her father but that Katie had said that if she is forced to go to his house she will go and hide in the park. The mother said that was not safe. She said it was Katie's decision not to spend time with her father.
The problem with these claims of the mother's is that they give no recognition to the opinion of Ms Manya that the mother has applied heavy pressure on Katie to not spend time with her father and that the mother has not given Katie permission to love her father equally. That is, Katie's present views are the result of her mother's conduct and attitudes towards Katie spending time with her father. Similarly, any unsafe behaviour that Katie might engage in to avoid seeing her father would also be the result of the mother's conduct and attitudes.

The cross-examination of the mother

The mother was cross-examined. When asked what role she thought Katie's father should play in Katie's life, the mother answered evasively. However, she eventually said that she thought it was important for Katie to have a relationship with her father but did not consider that a strict, every second weekend relationship could be maintained because Katie was moving on and had friends and activities of her own.
The mother volunteered in cross-examination that Katie had read the family report. The mother denied that she had shown the family report to Katie. She said that Katie had got the family report out of the letterbox and read it. It was put to the mother that Katie had so little respect for the mother's role as an authority figure that she took her private mail out of the letterbox and read it without the mother's knowledge or consent. The mother said that she had not said that Katie had read the report without her knowledge or consent. She then said that she did not know that Katie was reading the family report when she was reading it.
It was then put that Katie had read a letter that she had taken from the letterbox and that was addressed to her mother without her mother's permission. The mother then said that she was not sure whether the letter had been opened or where it was and she was not in the practice of locking things up in her house. The mother then said that perhaps the letter containing the family report had been opened and was somewhere in the house and Katie had found it and read it.
The mother said that Katie was in the habit of taking the mail from the letterbox and she opened telephone bills and bank bills. The mother was asked again if Katie had taken the family report from letterbox without her mother's permission and was warned that if she did not give a responsive answer the court could infer that she was lying under oath. The mother then said:
I do not know, right. I don't know who got it out of the letterbox, it could have been my husband, it could have been the dog, it could have been a friend. [Could have been the dog?] The dog can get things out of the letterbox.
The mother denied that she had discussed the contents of the report with Katie but admitted that she had discussed the recommendations contained in the report with Katie. The mother said that Katie had said that the report was “a load of crap”. To my mind, there is no relevant distinction between discussing the report with Katie and discussing its recommendations.
Whatever the circumstances of Katie gaining access to the report might have been, the mother's evidence was clear that she thought there was no reason to hide the report from Katie, and that there was nothing wrong with Katie knowing what was going on.
The difficulty with all this is that the family report is part and parcel of the adult issues that Katie has been caught up in and with which she is not able to emotionally cope. This was made clear in Ms Manya's report at paragraph 43 where she said:
Katie’s observed physical violence such as hitting her stepfather hard on the stomach out of the blue indicates her seething anger of being caught in adult issues and unable to enjoy a positive relationship with both her parents. …
The mother's conduct in allowing Katie to read the family report and discussing it with her has intensified Katie's involvement in adult issues. The mother, notwithstanding that she has had the benefit of Ms Manya's report, continues to show no insight into the difficulties she is creating for Katie by involving her in adult issues and not allowing Katie to enjoy a positive relationship with her father.
Katie punched her stepfather immediately after her interview with Ms Manya and her father. Ms Manya described the interview and the subsequent events at paragraphs 13 and 16 of her report:
When Katie first met her father, the father and daughter remained smiling but quiet for a while. The father asked general information about Katie’s daily life and Katie answered up to the point. The father made several positive comments about his daughter. Katie shared that she had excelled at her dance classes, liked to attend the library and spoke about an upcoming holiday camp. The father and daughter spoke about some common interests such as horse riding and worm farming. Katie shared that she was fond of worms and did not like people who harmed them. The father remarked that in his young age he also felt similarly about the worms and often rescued them from being destroyed. That conversation seemed to bond the father and daughter instantly after which they were able to speak about their views and wishes quite openly and sincerely.
Katie stated that she did not wish for her father to wake up late, play computer games which made her feel ignored by him. She did not wish to eat certain food. The father assured her that he was quite happy to listen to her views and make her stay with him as comfortable as possible. Katie asked about the father’s partner who was unable to attend on the day as she was away in Sydney. Katie expressed a wish that she wanted the father’s partner to be around when she visited the father and the father shared that it should be possible on most occasions which seemed to please Katie. Katie indicated that in the past she had liked her father cooking her pancakes in the morning as well as enjoyed the holiday period spent with her father and his partner during last Christmas.
The father asked if Katie would spend time with him on the forthcoming Father’s Day. Katie agreed and suggested that she wished to go horse riding on the day. When the father asked his daughter to give him a hug Katie gave her father a lingering hug. With that Katie seemed to be in touch with her feelings and was teary for a while after which she once again resumed talking to her father smiling and joking. The session ended with a positive feeling as the father and daughter stated goodbye in an affectionate manner.
It was unexpected and shocking to observe Katie returning to the waiting area and swiftly punching her stepfather quite hard on his stomach stating ‘I have told you not to touch my laptop’. Her stepfather smilingly responded that ‘She often does that. She is a bully’ He then amended his response to ‘No she is not a bully. I don’t mind her punches. We just tease each other.’

The mother's husband did not give evidence. The mother was cross-examined about Katie punching her stepfather. The mother initially expressed doubt that Katie would have punched her stepfather hard in the stomach because he wears a metal brace in that area. However, she later admitted that Katie does punch her stepfather in the mother’s presence but only in a joking, fun sort of way. It was put to the mother that the punch in the waiting room was not done in a fun or joking sort of way but was an out of control child expressing rage. The mother denied that. She disputed that Katie punched her husband hard. She also disputed Ms Manya's explanation for the punch, saying that Katie was actually angry with her own father.
I accept Ms Manya's evidence on this point. That is, I accept that Katie punched her stepfather hard and I accept that Katie did so as an expression of her seething anger at being caught up in adult issues and being unable to enjoy a positive relationship with her father.
The mother said very clearly in cross-examination that she neither encouraged nor discouraged a relationship between Katie and her father. However, it is very important for Katie's long-term emotional and psychological well-being for the mother to positively encourage and facilitate a relationship between Katie and her father. The mother needs to give Katie emotional permission to love her father as much as she loves her mother. That is, the mother needs to ensure that Katie feels that she will not disappoint or distress her mother if Katie loves her father just as much as she loves her mother. When it was put to the mother that she needed to give emotional permission to Katie to love her father, the mother said Katie does love her father, she just does not like him. If that is so, then the mother needs to give Katie emotional permission to like her father.
In relation to Katie's comment in her letter that she wished to spend every second or third weekend with her father, the mother asked whether the weekend began on a Friday or a Saturday. She said that Katie did not wish to spend from after school on Friday to before school on Monday with the father, as provided for in the consent orders dated 11 December 2006. The mother said Katie had said that she would go and have lunch with the father.

The mother’s “re-examination”

The mother said that Katie was opposed to taking overnight bags to school because other girls get access to the bag and, “their underpants end up up the flagpole.” In my view, this is a matter that needs to be addressed by the school. I have no doubt that it is within the capacity of a school which charges fees of $14,000 per year to provide adequate lockers for students who have overnight bags, musical equipment, sporting equipment and other bulky items. This is a problem that should be solved rather than used as an excuse for Katie not spending time with her father.
The mother also said that Katie did not like her father to take her to dancing classes because he stayed to watch her dance. Katie's father denied that he had stayed to watch Katie as such and denied that it bothered her in any event. He said that he had gone to the office, spoken to some other people and returned to the back of the room. Given that Katie dances competitively, it is difficult to accept that she would object to people watching her dance. In any event, I consider that this is a matter that the father and Katie can work out between themselves.
The mother said that when Katie is in a ballroom dancing competition, she needs assistance with her dress, hair, makeup and tanning, which the father cannot provide. The father has a wife who may be able to assist with these matters. Alternatively, the mother of Katie's male dance partner may be able to assist. If the mother and father had a reasonable relationship with each other, the mother would be able to assist Katie even if the dance competition took place on a weekend when Katie was with her father. One way or another, the activities Katie enjoys doing should not be allowed to become an obstacle to Katie enjoying a positive relationship with her father.

Whether the orders were contravened

Under s.70NAC of the Family Law Act 1975, an essential element of a contravention application is that, relevantly, the orders were not complied with intentionally or that there was no reasonable attempt to comply with the order. I am satisfied in this case that the mother intentionally failed to comply with the orders and made no reasonable attempt to comply with the orders in connection with the alleged contraventions as described in paragraph 6 above.
Another essential element of a contravention application is that the contravention occurred without reasonable excuse. Section 70NAE of the Act defines reasonable excuse to include the respondent not understanding the obligations imposed by the orders. There was no suggestion that the respondent did not understand the obligations imposed by the orders and I find that she did understand those obligations.
Section 70NAE of the Act also provides that it is a reasonable excuse for contravening an order if the respondent believed on reasonable grounds that not complying with the order was necessary to protect the health or safety of the respondent or the child and that the non-compliance did not continue for longer than was necessary to protect the health or safety of the respondent.
The mother suggested that Katie was not safe in the father's care in a number of respects. She suggested that the father did not adequately feed Katie. I consider the suggestion to be preposterous. The family report writer considered that the mother's allegation about the father starving Katie was so absurd that it made her wonder about the mother's capacity to reason logically.
The mother also suggested that Katie was exposed to matters of a sexual nature at the father's house. I consider that the father providing Katie with a copy of Everygirl, answering her questions about sexual matters and, when asked, showing her what a tampon looks like, were conducive to Katie developing a healthy attitude towards sex and the natural functions of her body. I do not consider that the father’s actions in relation to these matters posed any risk to Katie’s safety or well-being. I consider that the father took reasonable steps to prevent Katie accessing pornography at his house. I do not consider that Katie is any more at risk at her father’s house in relation to pornography than she is any where else.
The mother also suggested that Katie would be exposed to danger if she spent time with her father because she would run away. In my view, the father has done nothing that would cause Katie to wish to run away from him. The complaints Katie has expressed about her father are, in the overall scheme of things, trifling. If Katie does wish to run away from her father, it is only because her mother has influenced Katie to feel that way. This conduct cannot constitute a reasonable excuse.
The mother also claimed to have a reasonable excuse based on Katie's own wishes. However, Katie's views have been shaped by her mother. In these circumstances, they do not constitute a reasonable excuse for the mother's non-compliance with the orders.
The standard of proof in a contravention application is stated in s.70NAF of the Act to be, relevantly, the balance of probabilities. I am satisfied on the balance of probabilities that the mother contravened the orders of 11 December 2006 without reasonable excuse in the respects set out in paragraph 6 above.
I would have regarded the mother's contraventions as more serious contraventions as described under s.70NFA of the Act. My reason for taking that view was that the contraventions had continued for a very long period of time and resulted in Katie spending no time at all with her father for months on end until he commenced legal proceedings. However, the father's counsel submitted that they were less serious contraventions to be dealt with under s.70NEA of the Act. I am prepared to proceed on that basis.

Consequences of failure to comply with orders

The powers of the court where there has been a less serious contravention are set out in s.70NEB of the Act. They include an order requiring a person to attend a post separation parenting program. The mother has already been ordered to attend such a program and I make no further order of that nature.
The court is also empowered to require the person who contravened the order to enter into a bond. At the conclusion of the hearing, I required the mother to enter into a bond for two years. The bond required the mother to be of good behaviour, to comply with the orders made on the day of the hearing and acknowledging her indebtedness to the Commonwealth in the sum of $5,000 if she failed to comply with the conditions of the bond.
The mother refused to sign the bond. She said she wished to get legal advice. I said I would adjourn the matter for approximately two weeks when the mother would need to return to court. She said that she could not come to court again. She then said that she would sign the bond but proceeded to scribble all over it. That document is marked exhibit A. The mother said that the scribble was her signature and that she had signed the document under duress. I said that I did not accept that it was her signature. The mother then said that she would sign another copy of the bond properly. I did not consider that to be an appropriate outcome, given that the mother was in a state of distress, had already said that she wished to get legal advice but was unable to come back to court on another day, and had said that she was under duress.
Ultimately, I ordered that the mother pay the father's cost of the proceeding fixed in the sum of $5,750 in the event that she did not comply with the other orders made on 9 October 2007. The Court has power under s.70NEB in the case of a less serious contravention to order the contravener to pay some or all of the costs of the other party. Section 117 of the Act applies in such cases. Under that section, the usual rule is that each party bears his or her own costs. However, if the court considers it just, the court may require one party to pay the costs of another.
In considering whether a cost order should be made, the court is required to consider the matters set out under s.117(2A) of the Act. The first matter is the financial circumstances of each of the parties to the proceedings. The father is employed in the telecommunications industry and his wife is a veterinarian. I understand them to be in comfortable financial circumstances.
The mother said that her husband usually works but at present he has no income. When asked how long he had not been working, the mother said he had not had a full-time job since May this year. The mother was interviewed by Ms Manya on 21 August 2007. At that stage, the mother said her husband was working part-time. The mother did not explain the circumstances leading to her husband ceasing to have an income. The mother also told Ms Manya that she worked as an office manager on weekdays.
However, the mother said that she had lost her job the previous Friday because she had taken so much time off work to attend court and to attend Ms Manya. The mother appeared on 27 June 2007 by telephone, on 13 August 2007 in person and on 9 October 2007 in person. The mother had one interview with Ms Manya which took place on 21 August 2007. The mother claimed to qualify for a health care card. However, she did not produce such a card, or any other objective, documentary or independent evidence of her financial situation. In view of her shifting evidence in relation to Katie accessing the family report, I do not believe that the mother is an entirely honest witness and I do not believe that her financial situation is as bad as she claims.
The court is also required to consider whether either party is in receipt of legal aid. Neither party is in receipt of legal aid in this case. The court is then required to consider the conduct of the parties in relation to the proceedings. There is nothing of particular note in relation to this factor.
The court is then required to consider whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court. Obviously, these proceedings were necessitated by the mother's failure to comply with previous orders of court. This is a very powerful consideration in favour of a costs order against the mother.
The next factor the court is required to consider is whether either party has been wholly unsuccessful in the proceedings. Except that one of the alleged contraventions was dropped, the mother was wholly unsuccessful in the proceedings. This is also a weighty consideration in favour of a cost order against the mother.
The court is also required to consider whether there was a reasonable offer to settle the proceedings. Nothing of that nature was made known to court.
Finally, the court is required to consider any other matter that it considers relevant. I consider it to be relevant in this case that the mother refused to sign a bond. I regard it as necessary in this case for the mother to have a financial incentive to comply with the orders that were made on 9 October 2007. It would have been preferable if any money payable by the mother consequent upon any future non-compliance with those orders were payable to the State, rather than the father. This would emphasise the public interest in the mother complying with court orders for the benefit of her daughter.
In any event, I consider that there is ample justification in this case for the mother to be ordered to pay the father's cost of the proceeding fixed on scale at $5,750. However, I consider that the interests of the father and Katie are best served by those costs not being payable unless the mother defaults under the other orders made on 9 October 2007.

Variation of parenting orders

Finally, under s.70NBA of the Act, the court has power to vary the orders that were made on 11 December 2006. In doing so, the court must regard the best interests of the child as the paramount consideration. The best interests of the child are determined by taking into account the factors set out in s.60CC(2) and (3) of the Act. That section provides as follows:
Primary considerations
(2)     The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3)     Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)     each of the child's parents; and
(ii)     other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child's parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)      either of his or her parents; or
(ii)     any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)     each of the child's parents; and
(ii)     any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)          the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)     the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)any family violence order that applies to the child or a member of the child's family, if:
(i)      the order is a final order; or
(ii)     the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
Paragraphs 60CC(3)(c) and 60CC(4)(b) are particularly important in the context of this case. Paragraph 60CC(4)(b) provides that:
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
…
(b)     has facilitated, or failed to facilitate, the other parent:
(i)          participating in making decisions about major long‑term issues in relation to the child; and
(ii)     spending time with the child; and
(iii)    communicating with the child; and
Section 60CC of the Act and in particular, paragraphs 60CC(3)(c) and 60CC(4)(b) encapsulate the view of the Parliament of the Commonwealth of Australia that it is generally in a child's best interests to have a meaningful relationship with both of his or her parents and that it is generally in a child's best interests that each parent is willing and able to facilitate and encourage a close and continuing relationship between the child and the other parent. While there is sometimes a need to limit a child's relationship with a parent because it may in itself be damaging, there is nothing in the facts of this case that suggests that Katie should not spend at least alternate weekends with her father.
There is no suggestion of family violence in this case. There is no significant practical difficulty or expense in Katie spending alternate weekends with her father. There would be no significant effect on Katie from a change in her circumstances consisting of spending alternate weekends with her father.
In relation to Katie's maturity, I accept the report writer’s opinion that Katie is emotionally undeveloped and has been pressured by her mother to be reluctant to spend time with her father. For this reason, I do not place significant weight on Katie's stated view that she does not wish to spend time with her father. In any event, I note that Katie has written in a letter formulated with the assistance of a psychologist that she did in fact wish to spend every second or third weekend with her father. I place considerable weight on that view and I regard it as being consistent with Katie's best interests.
Clearly, in my view, the mother has not displayed a willingness and ability to encourage and facilitate a close and continuing relationship between Katie and her father. It is very important, in my view, for Katie's mother to give Katie emotional permission to love and like her father as much as she loves and likes her mother.

In the circumstances, I consider that it is in Katie's best interests that the orders made on 11 December 2006 be varied to provide for a phasing in of time to be spent by Katie with her father culminating in Katie spending alternate weekends with him from after school on Friday to before school on Monday.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate: Melissa Gangemi

Date: 19 October 2007