Bain and Stewart (No. 2)

[2008] FamCA 172

FAMILY COURT OF AUSTRALIA

BAIN & STEWART (NO. 2) [2008] FamCA 172

FAMILY LAW – ORDERS – Contravention

Family Law Act 1975 (Cth)

APPLICANT: MS STEWART

RESPONDENT: MR BAIN

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGF 766 of 2005

DATE DELIVERED: 18 MARCH 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 14 MARCH 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: MR CRONIN

SOLICITOR FOR THE RESPONDENT: RIGOLI & ASSOCIATES

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: NO APPEARANCE

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: ROBERT HALLIDAY & ASSOCIATES

Orders

1. That the hearing fixed for 2.15pm on 26 March 2008 be vacated.

2. That the application in a case filed by the father on 26 July 2007 and the response to an application in a case filed by the mother on 19 November 2007 be fixed for hearing on 30 May 2008 at 10.00am for a half day interim hearing.

3. That the father forthwith sign an authority directed to the Principal of P Primary School to comply with paragraph 5 of the orders made on 25 January 2007 AND IT IS REQUESTED that the said Principal do all things necessary to give effect to such order.

4. That the husband through his solicitors forthwith serve a copy of this order and a copy of the orders of Guest J made on 25 January 2007 and Senior Registrar Fitzgibbon made on 27 November 2007 by ordinary post upon the said Principal of the child’s school.

5. That upon the hearing of the mother’s application for contravention filed 29 February 2008:

   (a)     leave is granted for allegations numbered 1-21 and 26 to be withdrawn;

   (b) pursuant to sub-division C of Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”), allegations numbered 22 and 23 are dismissed;

   (c) allegations numbered 2and 26 are proved and found to fall within sub-division E of Division 13A of Part VII of the Act;

   (d) pursuant to sub-division C of Division 13A of Part VII of the Act, allegations numbered 27, 28, 29, 30 and 32 are dismissed;

   (e)     leave is granted for allegations numbered 31. 33-42 and 47 to be withdrawn;

   (f) pursuant to sub-division C of Division of 13A of Part VII of the Act, allegations numbered 43, 45 and 46 are dismissed; and

   (g)    allegation numbered 44 is struck out.

6. Until further order and pursuant to s 70NBA(1)(b)(i) and (ii) of the Act, paragraph 3(b) of the orders of Senior Registrar Fitzgibbon made on 27 November 2007 are varied as and from 25 March 2008 as follows:

   (a)    the mother communicate with the child … born … September 1997 by telephone on each Tuesday, Friday and Sunday at 8.30pm and for that purpose, the father facilitate the child making the call to the mother;

   (b)   the father not be in the presence or hearing of the child during the said communication calls; and

   (c)   the duration of the calls be no longer than one hour.

7. That for the purposes of paragraph 6 of these orders, the father within 14 days:

   (a)     acquire a mobile telephone specifically for the purposes of paragraph 6 and for the exclusive use of the child;

   (b)     ensure at all times that the telephone battery is charged for the calls to occur; and

   (c)     if not at the child’s home, the telephone is taken with him.

8. Until the father acquires the said telephone by no later than 1 April 2008, the father be responsible for ensuring the provision of paragraph 6 is effected through his landline or mobile telephone.

9. That by 4.00pm on 15 April 2008, the father pay to the mother $283 towards her expenses thrown away in these proceedings.

10. The contravention application filed 29 February 2008 is otherwise dismissed and removed from the list of cases awaiting a hearing.

11. For the purposes of the hearing on 30 May 2008:

    (a)    the father file and serve any amended application in a case and affidavit material in support thereof by no later than 4.00pm on 11 April 2008;

    (b)   the mother file and serve any amended response to an application in a case and affidavit material by no later than 4.00pm on 28 April 2008; and

    (c)   the Independent Children’s Lawyer file any affidavit upon which he intends to rely by 4.00pm on 12 May 2008,

    and that thereafter, no party file any further affidavit material without leave of Justice Cronin.

12. That the solicitor for the father bring to the attention of the Independent Children’s Lawyer these orders and the reasons for judgment.

IT IS NOTED that publication of this judgment under the pseudonym Bain & Stewart is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 766  of 2005

MS STEWART

Applicant

And

MR BAIN

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 14 March 2008, I heard the mother’s contravention application against the father. 

2. The mother appeared in person and the father was represented by counsel.

3. I reserved judgment and today have announced final orders in respect of all of the contravention issues.

4. When I reserved judgment, I said that I would vary the parenting orders to compensate the applicant in part but more importantly because it is clear that the existing arrangement which is limited to telephone communication is not working. 

5. The contravention application also has to be seen in the context of a long and comprehensive judgment of Guest J in January 2007 in which he reversed a long standing parenting arrangement and placed the child with his father.  No appeal was lodged against those orders. 

6. The parties were back before the Court in a contested application before Senior Registrar Fitzgibbon on 27 November 2007. The orders of Guest J were suspended in part reducing the time between mother and child.  What the Senior Registrar did was make orders that provided for alternate weekend contact supervised at a Contact Centre and for some specific telephone communication. 

7. The mother has since moved to live in Tasmania making the face to face arrangement impracticable leaving aside any question of the capability of the contact centre to handle the case. 

8. I should say also that I have already heard argument on a previous occasion in this matter and it is not simple. Suffice to say, face to face contact between mother and child is not occurring.

9. What predominately gave rise to the contravention application was that the Senior Registrar’s telephone communication orders were not working.  There may be a number of reasons for that but I shall endeavour to set out my findings in relation to the various matters and at the same time indicate how I propose to try and get at least that arrangement working.

10. I have raised the context of the previous hearings because there is also pending before me an application by the mother to vary the existing orders so that the child lives with her.  In other words, to reverse the orders of Guest J and revert to what had been the previous arrangement. It was clearly foreshadowed in November before the Senior Registrar that an application might be made by the father for summary dismissal of the mother’s substantive application.  The Senior Registrar adjourned the application of the parties to Guest J in January but at that time, his Honour decided that it was inappropriate for him to hear it and he has now disqualified himself.  It is to be noted that as at the time of delivering these reasons for judgment, I have not been able to find on the file and therefore have not seen, any application for summary dismissal by the father.  If that application is to be made, I have made provision in the orders that I propose to pronounce now for it to be filed.  I can also say that on the basis of what I have already read and heard, I would be hesitant now about making an application for summary dismissal.  That is not to say that I have prejudged the matter or that an application should not be made.  I raise the issue because a summary dismissal application is rarely granted.

11. The other compounding factor in this case is that I had previously allocated time on 26 March for that foreshadowed hearing of the parenting issues but because a psychiatric report has not been provided on both parties and the mother has university commitments, it transpires that that date is not suitable.  I have endeavoured as much as possible to make a date that is suitable to her having regard to her university commitments and the fact that she lives in Tasmania but the earliest that I can do it is on the last Friday in May and for that reason, there will undoubtedly be a further delay. It is also important to point out that the mother attended the psychiatrist but the father did not. That has been a bone of contention in the contravention proceedings and I shall deal with that below.

12. I propose on the next hearing date subject to any changes that may give rise to a different view, to hear and summary dismissal application but also the parenting issues between the parties on an interim basis and if necessary to determine whether the case ought to be given future priority. That should occur even if there is a summary dismissal application on the basis that there is currently no contact occurring as was envisaged by Guest J.

13. The other issue that has compounded the problem is that when the Senior Registrar dealt with the matter in November 2007, he made an order that enabled the child to ring his mother at any time before 9.00pm “at reasonable intervals”.  With great respect to the Senior Registrar, that order is so vague that in circumstances where the parties are so polarised as they are here, it is impossible to see it being implemented.  On the evidence that I have heard in this application, I am quite satisfied that the order is not working. Just who is at fault (if anyone) for that is unclear but I propose to ensure that communication is to be by telephone initiated by the child but facilitated by the father with the onus being on the father to ensure it occurs. I propose to revisit that issue in the next parenting case.

14. With that background, I then turn to the contravention application.  Mr Cronin of counsel indicated to me that his client was aware of all of the allegations and initially said that the mother’s document was difficult to follow but having canvassed all of those matters with the mother, in the presence of the father, I decided that what she was alleging was sufficiently clear and the matter could proceed without any prejudice or injustice to the father.

15. The Independent Children’s Lawyer was not present as was to be expected. Mr Cronin said that what was predominately alleged was a breach of telephone communication orders and, even if found proved, any compensatory communication orders would really have to relate to trying to make those previous orders work.  The input of the Independent Children’s Lawyer in reality would not have assisted me in this application.

16. The mother’s application can be divided into some discrete areas.  Predominately she sought to have the father dealt with for 27 breaches of telephone communication orders made on 27 November 2007.  After discussion, she indicated that she would “save time” by only proceeding with Items 22, 23, 24, 25 and 27.  When she was giving evidence, she indicated that she wanted to proceed with a further one but at that stage, I had already struck out that particular allegation.  No prejudice to her arises out of that event.

17. Initially, Mr Cronin told me after I explained directly to his client what the allegations were, that he denied all allegations. That was not the way the matters unfolded.

18. I will deal first with the allegations relating to things other than the telephone issues and then return to those.

19. Allegation number 28 related to a breach by the father of an order made on 27 November 2007 for the attendance at an appointment with a psychiatrist.  I have already referred to that appointment above. I struck that out on the basis that I was not satisfied that on the material, a breach of any order had occurred.  There was no evidence that could satisfy me that I should call upon the father. In addition, the father had apparently missed the appointment and had made another one.

20. Item 29 and 32 related to alleged breaches of paragraph 3(b)(ii) of the orders of 27 November 2007. That is, these are the orders relating to the child telephoning the mother. I allowed those to proceed. I have dismissed both of those allegations on the basis that the mother has not been able to prove them. She pointed to evidence to show that the child had emailed her indicating that he could not “get through” to her. That is the highest that the mother’s case could be put. Whether that meant that there was something within the mother’s telephone line or the father’s telephone line or some other reason, I am quite satisfied that there was nothing that I could conclude was the responsibility of the father.

21. Allegation number 30 relates to a suggested breach of paragraph 5 of the orders of 27 November 2007 relating to the non-denigration of parties.  The wife’s evidence is set out in paragraph 20 of her affidavit.  The order relates to neither party denigrating the other including through their servants and agents.  The mother points to a document which is apparently an email in which the child refers to the fact that “E” uses denigratory or derogatory language of the mother.  There is no evidence that I could rely upon which establishes that the person “E” was the “servant or agent” of the father.  I explained that situation to the mother.  If the order had been specifically against someone such as “E”, then enforcement could have been taken against that person.  That did not occur here.  The mother argued the case on the basis that the father was somehow responsible but I do not accept that the father had any control over that situation.  The father gave evidence about the matter and denied that it was happening. The evidence is not sufficient to satisfy me to the requisite standard, namely the balance of probabilities, that the father has through a servant or agent denigrated the mother.

22. There was a whole raft of allegations set out in contraventions numbered 31, 33 to 42 and 47.  These allegations assert a failure to properly care for the child.  The mother indicated that she was not proceeding with those and I gave her leave to withdraw them.

23. Allegation number 43 is said to have been a breach of paragraph 5 of the orders of 25 January 2007 in that the father has failed to advise the mother of the address of the school of the child.  This has to be seen in the context of what occurred in early 2007.  Guest J handed down his judgment on 25 January 2007 and the child was due to start school only days later.  The mother alleged that there was a breach because he did not immediately notify her of what school the child was attending.  The mother conceded that she found out about which school he was attending by ringing all of the schools in the father’s area. For the last 12 months, the mother has been aware of those details.  In some senses, the allegation is trifling but I can understand the storing up of all of these alleged wrong doings.  In my view, having regard to the fact that the mother conceded that she knew of the address very shortly after the child commenced school, and the fact that the child was handed over only days after Guest J handed down a judgment, I am not satisfied that there is any basis for me to say that the father has intentionally failed to comply with the order or made no reasonable attempt to comply with it either.  Under those circumstances, I have dismissed allegation number 43. 

24. Allegation number 44 has been struck out on the basis that it is simply a doubling up of another allegation.

25. Allegation number 45 alleges a breach of paragraph 2 of the orders of Guest J of 25 January 2007 in that the mother was excluded from the school enrolment process.  The mother says that it is a breach of the order because she has equal shared parental responsibility.  The facts upon which she relies are that the father enrolled the child but did not include her on the enrolment form.  In cross-examination, the mother conceded that she had provided the details to the school somewhat later after the child had enrolled so that problem seems to have been cured.  The father’s explanation in evidence which the mother cross-examined him about was that at the time he enrolled the child, bearing in mind the facts that I have just set out, he did not know the mother’s precise details.  Whilst I have some hesitation about accepting that statement because the parties had just been through an horrendous defended hearing, I could not be satisfied on the evidence that the husband has intentionally failed to comply with the order or made no reasonable attempt to do so.  Certainly, after a few weeks at the school, the father became aware that the mother had provided the details to the school and on that basis, there is little now to complain about.

26. The final allegation is number 46.  This is an allegation that the father breached paragraph 5 of the orders of 25 January 2007 in that he failed to sign a document which would have enabled the mother to obtain all of the information that parents would normally get from a school.  The evidence was clearly in conflict on this issue.  The mother’s evidence was that she has not received any information from the school and she attributes that entirely to the fact that the father has not provided the written authority to the school.  She said she had spoken to the Principal who said that because she did not have written authorisation, the school could not give her the necessary paperwork. According to the mother, the Principal was sufficiently concerned about the matter to approach the Education Department.  I find that puzzling.  Pursuant to both the orders of Guest J and Senior Registrar Fitzgibbon, both parents have equal shared parental responsibility and I have little doubt that the Education Department and the school should understand that that gives both parties the responsibility of a parent.  There are certainly no orders in existence that preclude the mother from participating in any school activities. 

27. The father’s evidence was that he had been asked by the Principal whether it was permissible to provide the information to the mother and he said that he had given that authorisation. 

28. The mother said that she had sent “numerous” emails to the father requesting the written authorisation and when I questioned her about the number, she reduced “numerous” to “three or four”.

29. On this issue I have a complete contrast. Neither party produced any material that would assist their particular cause. The mother produced no emails notwithstanding that she was able to produce a plethora of emails in relation to things between she and the child. The father could have easily produced a document from the school confirming that the school had no difficulty with carrying out the husband’s oral direction. Having regard to the provisions of s 70NAF of the Act, I have to determine the matter on what probably occurred. This is a serious allegation and pursuant to s 140(2) of the Evidence Act 1995, I am entitled to take a cautious approach having regard to the seriousness of the allegation. On that basis, I accept the evidence of the father. Accordingly, that allegation is dismissed.

30. That leaves the five allegations relating to the telephone matters.

31. The mother’s evidence has been that right through the period subsequent to the orders being made, she has been consistently thwarted.  However, on most occasions, but clearly not all, she has been able to eventually speak to the child.  For example, I was told that on some occasions when she rang, she was told that she was ringing the wrong number and on another occasion, was told that the child was doing the dishes.  The husband denies the thwarting but did concede there were times when the cal was inconvenient. Ultimately, having regard to the vagueness of the order, that is, its reference to between various times, I am not satisfied that the husband has intentionally breached the order.

1. That is particularly so when one contemplates the mother’s evidence in which she says that whilst she ultimately got through to the child, it was her complaint that she was constantly being thwarted. However, the husband is now on notice that thwarting, lack of positive co-operation and deliberate breaches will place him is a precarious position because he will have a breach proved against him under the orders I propose today.

2. Returning to the allegations, there are two that require careful consideration.

3. The first relates to the date … February 2008.  The mother was cross-examined about this.  It was put to her that that was the date of her mother’s birthday and that she would not have wanted the child to attend the birthday function because she has had a falling out with her family.  It soon became apparent that what had occurred was that the father took the child to the birthday party and did not have a mobile phone with him during that period of time.  The father said that he did not want the child to be the brunt of criticism from the mother by telling her that he was at his grandmother’s birthday party. He conceded that he had given priority to the birthday party rather than to the relationship between mother and child.  The father is to be criticised for that regardless of the circumstances and even in his own words, he conceded he could have done better.  I am satisfied that the father did breach the order on that occasion.

4. The second relates to only three days later.  The father said that at that particular time, he was out at a restaurant and he had his mobile telephone with him.  The mother alleged that she rang a number of times and was unable to get to speak to her son.  The curious part about the evidence here however, was that the mother had no recollection of the particular incidents and constantly referred back to either a diary or her telephone records.  This ultimately persuaded me the father’s version of what occurred was correct.  When the mother was cross-examined about that particular night, she said she could not recall a nine minute telephone conversation with her son.  I found that perplexing.  The father gave evidence that he specifically remembered the call and that he gave the telephone to the child. He produced his own mobile telephone which indicated that the mother or at least her mobile telephone number, had telephoned him at that particular time.  The mother’s argument was that the father’s telephone, although showing her telephone number, did not indicate the duration of the call.  In the mother’s telephone account on that day, there is a reference to a call at that particular time for nine minutes but it does not relate to a telephone number of the father.  The mother was unable to tell me whose number it was that was recorded in her telephone account.

5. Again, I have to make a finding and having regard to the precise evidence of the father and his very clear recollection of what had occurred on that night, I find that the father’s version is the more probable and accordingly, that allegation is therefore dismissed.

6. In summary therefore the allegation that has been proved relates to the father’s failure to comply with the order relating to the telephone communication order. 

7. The problem in relation to the information about the school although dismissed, required some attention.  Section 70NCA provides that even though the application is dismissed, there is a power for the Court to vary the primary order under sub-division B in s 70NBA.  In my view, this issue needs to be resolved so that there is no ongoing dispute about responsibility and accordingly, I have made an order that the father immediately sign an authority and deliver it to the school.  I have also provided in my order that the orders be brought to the attention of the Principal of the school and that the school be requested to assist in compliance with the order.  I refer back to what I said previously about the parents being equally responsible for the parenting decisions of this child.

8. Having found each of the allegations to which I have referred proved, in anticipation that that would be the outcome, I discussed with the parties what should occur.

9. I propose to make an order that the father undertake a post-separation parenting course.  Mr Cronin suggested that it should be mutual but I disagree.  It is not the mother who has created the problem here.

10. I warned the father that a breach now having been established, creates a situation in which he would be looking at a serious contravention penalty in the future if the orders of any kind are not complied with.  I have also made clear to the father that it is not appropriate to simply indicate that the telephone calls cannot occur because the child does not want to speak to his mother.  The father will have the responsibility of ensuring that those telephone calls are facilitated.

11. The mother incurred two lots of expenses in these proceedings.  The first was $456 as a result of coming to Melbourne to file and serve the contravention proceedings.  There was no need for that to occur and in any event, service did not occur properly.  I propose to bring the problem to the attention of the Registry Manager to see whether that problem can be overcome.

12. To attend the hearing however, the mother flew to and from Melbourne and also had to get to the Melbourne airport and I see no reason why the father should not pay those expenses. Mr. Cronin did not oppose me making that order.

13. Accordingly, I make the orders as I have indicated.

I certify that the preceding Forty Four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 March 2008