Barton and Barton-Lascoe

[2007] FamCA 1197

FAMILY COURT OF AUSTRALIA

BARTON & BARTON-LASCOE [2007] FamCA 1197

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Contravention
Family Law Act 1975 (Cth)
APPLICANT:		Mr Barton

RESPONDENT: Ms Barton-Lascoe

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 1165 of 2004

DATE DELIVERED: 8 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT:

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Ms B.M. Hooper

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Forte Family Lawyers

Orders

1. Each of the allegations is dismissed.

2. I adjourn the Form 2 application filed 22 May 2007 to 31 October 2007 at 9.30 am to the registrar's directions list.  Provided everybody is in agreement, then the matter can be just taken out of the court's list and I will remove the Form 18s.

3. I will have these reasons for judgment transcribed and they will be placed on the court file.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1165 of 2004

MR BARTON

Applicant

And

MS BARTON-LASCOE

Respondent

REASONS FOR JUDGMENT

1. This is an application that has been sent to me from the judicial duty list.  Just the number of file volumes indicates the unfortunate background of the case.  The husband and wife are no longer husband and wife but I propose to refer to them in that way, not for any other reason than for convenience. 

2. The husband has filed not only a contravention application in this case but also an application in a case to deal with some matters that need attention in relation to the existing orders.  I propose not to deal with that application as there is now a family report pending and the matter can come back on an occasion after that has been completed. 

3. Apart from those issues in the Form 2 application that need resolving, this case is one in which the parties may benefit from a serious re-think about their own relationships with each other as well as with their daughter. 

4. The husband has appeared on his own behalf during these proceedings and, as a result of some orders made, the wife has attended by telephone.  Primarily I have relied upon the affidavit of the husband which was filed on 22 May.  In fact, for the record, there are two affidavits filed that day.  The second, which I have not read, relates more to the interim application.  I gave the wife an opportunity to cross-examine the husband in relation to that affidavit on two occasions and she chose not to.  To a very large degree, that means that the facts that he sets out in the affidavit are not disputed. 

5. By way of background in this case, the parties were married and separated and there are four children who are between the ages of 19 and eight.  Realistically, I am only dealing with the fourth child, a daughter, who is about to turn eight years of age.  There has certainly been some evidence about the relationship between the husband and the other three children, but for the purposes of my decision I have ignored that evidence completely. 

6. The matter is compounded by the fact that, apart from the voluminous number of pieces of paper on this file, there are a number of orders.  The parties, because of their country background, have interchanged this court and the Federal Magistrates Court, so I have had to swap backwards and forwards through various files to find the various orders, and to a very large degree I have been enormously assisted by counsel for the Independent Children's Lawyer, who took me through all of those steps. 

7. The facts that seem to give rise to the application are that the child, who was then about seven years of age, and earlier, had been having regular time with the husband.  The husband did not cross-examine the wife about the larger background, but it was interesting that the wife volunteered that she saw the relationship up until very early this year as good and that the relationship had been absolutely working smoothly; and she used words like “the visits were terrific”. 

8. Then in December 2006 an event occurred which seems to have started a problem, which may or may not have led to these events.  Even on the best evidence from the wife, I could not say for certain that what occurred was in fact the precipitating factor to give rise to the child's reluctance to participate in the visits with her father.  That event was that a very close friend, who is of similar age to the child, had witnessed a deceased relative, who had hanged herself, and no doubt that particular incident was in one form or another told to the child. Whether that caused the trauma or not, no-one really knows. 

9. However, I am told by the wife that she endeavoured to have the child address whatever problems she was having through the school, but the husband has objected to that course of action. His objection is that he was not consulted about the matter, and, whilst that may be a valid criticism, I am not sure that I would have taken that course of action had I been in his shoes and knowing the background.  Needless to say, that particular incident is not one that affects my decision. 

10. What occurred thereafter was that the child was reluctant to attend with her father.  But on occasions when she did go she telephoned her mother during the night and, it appears by agreement, the child was returned the following morning.  The wife points to that as saying the husband understood what the problem was and agreed. 

11. Having trawled through all of the material, it seems to me that the husband does agree that there was a problem during that period, but the essence of his case is that, if the trauma was in fact caused by some event, two to three months had elapsed without him insisting upon the relationship resuming and as a consequence he felt that the interests of the child were not being properly looked after by the wife not producing the child for the visits. 

12. I have tried to interpret what all that means and have concluded that what the husband says is that the wife has unilaterally chosen to determine when there will be a resumption of the visits and he is unhappy about that because he was not involved.  The wife, for her part, however, says that she got things rolling again, and I am now told that the visits have resumed.  The husband, perhaps in a cynical way, says that that would never have occurred had it not been for the fact that he issued the proceedings, and Dessau J in an earlier order made it clear that the contact between father and child was to resume.

13. I am not dealing with those issues. What I tried to explain is that this is a case in which I am obliged to look at the contraventions of the order in a slightly different way to one in which I would normally deal with a parenting case. I am dealing with this particular matter within the statutory requirements under Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and I have taken a very broad view of my obligations, particularly the principles set out in ss 69ZN and 69ZQ. It is in that framework that I now turn to the allegations.

14. There were 16 allegations in all.  These are serious breaches, which, if they were proved, would carry sanctions; and, as such, I have taken a very careful approach in relation to all of them.  I have struck out the first six allegations, for two reasons.  The first is that they allege a breach with insufficient particularity that I could ask the respondent wife to actually plead to, let alone respond to in any formal way.  The second is that the allegations make sufficiently clear what the wife has done wrong but not to my satisfaction that I could say that they are a breach of the orders.

15. Part of the dilemma is that I was required to interpret what the orders meant and then to try and interpret what the allegation was.  I have taken a strict interpretation of this whole issue and determined that each of the allegations does not fall within the relevant parts of the order that are alleged to have been breached, and on that basis it was my view that it was inappropriate to call upon the wife to plead to those particular allegations.  However, I have then gone through each of the other allegations numbered 7 to 16 and in the usual way asked the wife to respond to the allegation. 

16. In respect of allegations numbered 10 and 14 there was a simple denial.  But in respect of 7, 8, 9, 11, 12, 13, 15 and 16 the wife has said that she denies the allegation but pleads that in any event, there was a reasonable excuse.  The reasonable excuse is not necessarily what one might think the layman considers but rather the way the statute sets up that particular defence, and I shall turn to that in a moment. 

17. Notwithstanding there were allegations numbered 7 to 16 to deal with and I required the wife to respond to them, I still had to be satisfied that on the evidence that the husband raised there was something upon which I could call for an answer from the wife.  In respect of the allegations with the numbers I have just mentioned therefore, I did not require the wife to respond to numbers 11, 13, 14 and 16.  In my view each of those allegations could not be made out on the evidence led by the husband, and, as such, there was no reasonable basis for me to require the wife to respond. 

18. I therefore turn to the remaining allegations, and I shall deal with them in the order in which they have been set up in the application.  In allegation number 7 the husband says that on 9 March 2007 the wife telephoned him, not for reasons pertaining to the child's health but to state that she could not drop the child off at the appropriate place.  According to the husband, that breaches paragraph (3) of the orders made on 17 May 2004. 

19. Paragraph 3 of the orders made 17 May 2004 by Brown FM in the Federal Magistrates Court reads:

    All communications be conducted by mail or text message unless there is an immediate genuine need to contact the other parent in the event of serious illness or accident.

20. The wife says that she admits she made the call but says that she had a reasonable excuse.  Her evidence was that she did ring because the child had attempted to call her father because the situation that had been intended to occur had changed. 

21. The parties were normally to change over the child at T, which is about 45 minutes away from where the wife lives, but, instead, because of obligations that she had in relation to the child, N, she was going to W that day; that is a similar trip to T but it is also only minutes away from where the husband lives, and the telephone call was to indicate that she had the obligation in respect of the child N and therefore was proposing to change over at W. 

22. This is one allegation that I was really puzzled about because it tends to suggest the pettiness to which we have stooped to try and sort out things between warring parents. But in this particular case it is my view that the wife had a reasonable excuse for breaching the order because she was endeavouring to communicate something to the husband that probably would not have caused him any inconvenience anyway.  On that basis I say that there is a reasonable excuse for the breach of that order. 

23. The next allegation is number 8.  This particular allegation is that on 10 March 2007 the wife, without reasonable excuse, intentionally altered or refused prearranged child contact arrangements between the child and the applicant.  Again the wife has denied the allegation by saying she had a reasonable excuse.  The evidence that supports that particular allegation is that on 10 March, the wife sent a text message to the applicant saying that the child would be at the W hockey grounds if he would like to pick her up. 

24. Standing alone, that allegation sounds rather odd, but this is at a time when the child was not seeing her father during this strange period when, whatever trauma had occurred to the child, she had become very clingy with her mother.  The wife's response to this particular allegation was that, apart from the fact that the child was not going with her father on each alternate weekend during that period of time, the wife at the last minute found out that she was going to W and decided that it was an opportunity for the child to see her father, and, for the purposes specifically of trying to re‑establish the relationship and as a result of that, she made contact with the husband.

25. Again I have some difficulty in understanding why this particular allegation was a problem.  But insofar as this allegation occurred in the problem period of time and the father had been returning the child, because of her distress, it seems to me that it is not so much a reasonable excuse but rather that the wife was trying to do something to get the relationship going again.  For whatever reason, the husband chose to bring that as a breach.  Insofar as I say that it is necessary for the wife to respond to that allegation, I find that she has a reasonable excuse. 

26. The next allegation is number 9.  In this particular allegation, the husband asserts that the orders of the 19 April 2004 have been breached because the wife failed, without reasonable excuse, to bring the child for a week's school holiday contact.  This also is in the same period of time when the child was clingy with her mother, and the wife in her evidence said that she had let the husband know that the child was not going, and she asserts, contrary to what the husband says, that the husband did not go to T in any event. 

27. I do not think it matters one way or the other, because it is in this same period of time when the child was exhibiting the symptoms.  As such, I have some difficulty in understanding how it could be asserted that it is a breach of the order, having regard to the fact that everyone seems to concede that this was a problem period.  Accordingly, to the extent that I am required to extract some evidence to show justification on the wife's part why it did not happen that contact took place, I am satisfied that she has a reasonable excuse in respect of allegation number 9. 

28. The next allegation is number 10.  The husband says that the wife breached paragraph (1)(g) of the orders made on 18 May 2006 in that she, without reasonable excuse, failed to enable a phone contact to take place between he and the child. This allegation is to a very large degree connected with number 11, in relation to which I have decided not to call upon the wife for an answer. Paragraph (1)(g) in essence says that the husband is to telephone the child on the Tuesday night, and the wife is obviously obliged to facilitate the communication; but if for some reason that does not take place, then the child is to have the telephone communication within 24 hours.

29. What seems really odd in this particular case is that the wife was not present in the home on the evening of 17 April.  The husband in his affidavit refers to it being Friday, 17 April, but it is quite clear that it was a Tuesday night.  The wife says that she cannot really remember but that she was certainly not home if it was a Tuesday night because she went to choir practice.  In any event, she says that she was told the following day, as far as she can remember, that the child had not spoken to her father the previous evening; and then it transpires that that next evening the child telephoned the husband at 7.50 pm, which is 20 minutes later than the order provides. 

30. I have already indicated that I was not going to call upon the wife in respect of number 11 because I think it is adequately covered in number 10.  It seems to me that, notwithstanding the wife had an obligation to endeavour to facilitate the telephone communication on the Tuesday night, she was unaware that it had not occurred, and when she found out on the following day that the contact had not occurred by telephone she did what she could to actually facilitate it.  It was very unfortunate that in that case the husband, on his own version, was not at home when the telephone call came.  All of this sounds to me like some sort of communication breakdown. 

31. Having regard to the fact that this is a serious allegation, I have to look at what the section in the legislation says.  The wife says she is unable to confirm one way or the other whether the telephone contact occurred on the night of the 17th, because she was not there; but, in my view, she has a reasonable excuse because she thought that it had occurred and when she ascertained that it had not, she did what she could to solve the problem, which is set out in Order (1)(gg) of the Court's order, albeit 20 minutes late.  I am not prepared to record a conviction in respect of allegations number 10 or number 11.

32. The next particular allegation is number 12.  In this allegation the husband says in paragraph (3)(a) of the orders of 19 April 2004 the wife was obliged to give him contact on each alternate weekend.  This is tied up in part with the same problem period, but it is a little different. 

33. What seems to have occurred here is that the husband had determined, as I have earlier mentioned, that two to three months was enough time to overcome whatever the problem was, and, as a consequence, he then wrote a letter asking for the resumption of the contact, only to receive a response from the wife saying that the child was not ready.  Perhaps that was not the best solution to the problem, from the wife's perspective, but I suspect it is a symptom of the communication problem between these parties. 

34. Having regard again to the background of this period, I am satisfied that the time under the order did not take place.  But having regard to the fact that the issue about the child's problem had not been resolved by either party at that stage, the wife has a reasonable excuse. 

35. That only leaves me with number 15, but that is very much part and parcel of number 12.  Number 15 is in fact effectively the same period of time, and again the allegation is a breach of paragraph (3)(a) of the orders of 19 April 2004.  Because of the fact that I have already found during that same period that it was reasonable for the wife to adopt the position, then that allegation cannot be sustained either. 

36. Before leaving the matter though, I want to make it clear why I have taken the view that I have.  The wife has made herself available for cross-examination and was appropriately cross-examined by the husband about a number of issues, but all that did was reinforce in my mind that there is a communication problem between the parties and that the husband takes the view that he was left out in the cold and no explanation was given to him as to why the contact was not resumed.

37. I appreciate the subtle problems in this case, but I am dealing with the part of the legislation which creates sanctions if orders are breached, and, as such, I have to treat the matter seriously. Section 70NAC of the Act defines what contravention means, it says:

    A person is taken for the purposes of this Division to have contravened an order under this act affecting children if,

    and I emphasise -

    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 -

38. It at no stage has been suggested that no reasonable attempt was made in respect of this particular period of time; it is being put quite specifically that the wife has failed to comply with the order.  Section 70NAE says:

    (1)      The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

    (2)      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.

    …

    (5)      A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

    (a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

    (b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

1. Section 70NAE(1) does not limit the circumstances under which an excuse can be provided.  The excuse must be reasonable and the respondent must understand thereafter the obligations under the order.

2. Section 70NAE(5) may have been used by the wife because of the health and safety issue but I am satisfied that this was really about the child’s readiness to resume time with her father and that it is now happening.

3. In this case, having regard to the fact that no‑one seemed to have addressed the issue specifically of what the trauma was, although I am convinced that the wife was certainly conscious of the problem and was endeavouring to have the child see a psychologist or psychiatrist, but that stopped because of the husband's refusal to allow it to occur.  But in any event, the problem again highlighted communication problems between the parties.  Had the wife spoken to the husband about the psychologist or psychiatrist, then the problem may not have occurred. 

4. In any event, on what I have heard from both parties, it seems to me that the wife did have reasonable grounds to say it was necessary to protect the health or safety of the child during that period of time.  Section 70NAF sets out that the standard of proof that I have to apply is the proof on the balance of probabilities.  That means, to my mind, that I have to think, "Well, is this probably what happened?" 

5. I am able to say in this particular case that, on what I have heard, bearing in mind the wife has been subjected to cross‑examination under oath, this is probably what did occur, and on that basis I am quite satisfied to say that I can then turn to s 70NDA. Section 70NDA says that:

   This Subdivision applies if:

   (a)a primary order has been made, whether before or after the commencement of this Subdivision; and

   (b)a court having jurisdiction under this Act is satisfied that a person has, whether before or after the commencement, committed a contravention of the primary order; and

   (c)the respondent proves that he or she had a reasonable excuse for the contravention.

6. That is what has occurred here.  I am quite satisfied that the wife has not provided the child as in the order and in respect of the allegations I have alluded to, has otherwise formally breached the order but that in each case she has had a reasonable excuse for those contraventions.  Accordingly, on those bases, I propose to dismiss each of the allegations. 

7. I adjourn the Form 2 application filed 22 May 2007 to 31 October 2007 at 9.30 am to the Registrar's directions list.  Provided everybody is in heated agreement, then the matter can be just taken out of the Court's list and I will remove the Form 18s.

I certify that the preceding Forty Five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate

Date:  24 September 2007