BELKO & RUSHWORTH
[2019] FCCA 685
•8 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BELKO & RUSHWORTH | [2019] FCCA 685 |
| Catchwords: FAMILY LAW – Contravention proceedings – order requesting the Mother to facilitate phone calls between father and child – if the child is unavailable to spend time to speak the mother must ensure the call is returned as soon as possible that evening or if not possible the next day – requirement to take reasonable steps to ensure that orders are put into effect – no evidence that the mother took any steps to ensure that orders were put into effect – contravention of ground 4 proved. |
| Cases cited: Stevenson & Hughes (1993) FLC ¶92-363 |
| Applicant: | MR BELKO |
| Respondent: | MS RUSHWORTH |
| File Number: | MLC 6272 of 2013 |
| Judgment of: | Judge McNab |
| Hearing date: | 6 February 2019 |
| Date of Last Submission: | 6 February 2019 |
| Delivered at: | Dandenong |
| Delivered on: | 8 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Southey |
| Solicitors for the Applicant: | Robindale legal |
| The Respondent: | In person |
ORDERS
The Court being satisfied beyond reasonable doubt that the mother has committed contraventions of orders under the Family Law Act 1975 (Cth) affecting the child X born in 2010 (“the child”) – being contraventions of [5] of the orders made in this Court on 16 January 2017 (“the Primary Order”);
The mother not having proved that she had a reasonable excuse for the said contraventions;
No Court having jurisdiction under the Family Law Act 1975 (Cth) having previously made an order in respect of the contravention of the Primary Order; and
The Court being satisfied that Subdivision E of Division 13A of Part VII of the Family Law Act 1975 (Cth) applies to the contraventions referred to in Order 1 above.
THE COURT ORDERS THAT:
Pursuant to s.70NEB(1)(a) of the Family Law Act 1975 (Cth), the mother must:
(a)attend, participate in and complete, as soon as practicable, an appropriate parenting orders program at Region B Medical Centre (“the Program”) and, further, the mother must:
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in and undertake the Program, and provide proof of evidence of enrolment and the Program details to the Applicant and the Court within 7 days of the date of these orders;
(c)pay and otherwise be responsible for her share of all costs associated with the Program;
(d)abide by all reasonable requests of any person directly or indirectly responsible for the conduct, administration or facilitation of the Program; and
(e)provide an appropriate certificate of completion of the Program to the father and to the Court.
The father may provide the child with a pre-paid mobile phone for his use in order for the telephone calls referred to in paragraph 5 of the orders of 16 January 2017 to take place.
The father’s contravention application filed 28 November 2018 otherwise be dismissed.
AND THE COURT NOTES THAT:
The orders of 16 January 2017 remain in full force and effect and in the event that the father does not purchase a mobile phone, contact be effected by the father telephoning the mother’s mobile number.
IT IS NOTED that publication of this judgment under the pseudonym Belko & Rushworth is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLC 6272 of 2013
| MR BELKO |
Applicant
And
| MS RUSHWORTH |
Respondent
REASONS FOR JUDGMENT
(DELIVERED EX TEMPORE – REVISED FROM TRANSCRIPT)
Introduction
This matter comes before the Court by way of a contravention application brought by the father which was filed on 28 November 2018. The contravention, as filed, included four grounds.
The matter was heard on 6 February 2019. The mother was represented by Counsel while the father appeared in person.
Background
The mother and father had a brief relationship early in 2010 but did not cohabitate. There is one child of the relationship, X born in 2010 (“the child”). Paternity was established by DNA testing in June 2013.
A review of the file shows that there has been a long history of Court appearances, orders of the Court, and an extensive history of the father alleging that the mother has failed to facilitate court orders.
While acknowledging the extensive history, I have dealt with the alleged contraventions on the basis of the evidence filed in this application and the evidence of the parties. The father relied upon an affidavit sworn on 23 November 2018. The mother did not file a response or affidavit and gave viva-voce evidence.
Order 2 of the 16 January 2017 Orders provide that the child live with the mother. Order 3 provides for spend time arrangements:
from February 2017 onwards [the child will spend] each alternate weekend from 10.00am Saturday until 5.00pm Sunday save that if the next day being Monday is a public holiday then the father’s time shall be extended until 5.00pm Monday [with the father].
It also provides that the child spend time with the father:
a)from 2017 onwards, the first week of each Victorian school term holidays;
b)from 2017 to 2018 and each year thereafter, from 10am Boxing Day (26 December) until 5pm 9 January.
The time that the father spends on the telephone with his son fits within that context of spending time and communicating.
Grounds of review
Grounds one, two and three have been struck out as they did not disclose an arguable case that there had been a contravention. These grounds are, simply, references to particular conduct without reference to any orders.
The remaining ground – ground four – makes reference to order 5 made on 16 January 2017 by Judge Hartnett. These were final orders made by consent. Order 5 provides that:
That the father be permitted to telephone the child each Tuesday between 5.00pm and 6.00pm and also on the child’s birthday each year with the father to initiate the call and the mother to facilitate the call and ensure that the child speaks in private and not on speaker phone. In the event that the child is not available to speak to the father pursuant to this order the mother shall ensure that the call is returned as soon as possible that evening or if not possible then the following evening.
Evidence
The affidavit makes reference to a multitude of dates from 31 January 2017 to 23 October 2018. Counsel for the mother, at the return of this matter on 6 February 2019 advised the Court that since the Orders were made there had been no telephone contact between the father and the child pursuant to the Orders of 16 January 2017.
The matter at hearing proceeded on the basis that the court would deal with the matters directly referred to in the father’s affidavit, being 12 dates. One of those dates, the alleged contravention occurring on 14 November 2017, occurred at 6.10pm. As outside of the time specified in the Order, the Court proceeded on the basis that there were 11 alleged contraventions.
The particular contraventions which are the subject of this matter are:
24 October 2017, the evidence is that:
Mother fails to facilitate my phone call to our son.
17 April 2018:
The mother failed to facilitate my phone call to our son.
22 May 2018:
The mother fails to facilitate my phone call to our son.
12 June 2018:
The mother fails to facilitate my phone call to our son. The mother declines my three attempts to speak with our son, and, on the fourth attempt, the call was forwarded to the mother’s message bank.
26 June 2018:
The mother fails to facilitate my phone call to our son.
17 July 2018:
The mother fails to facilitate my phone call to our son. I attempted five times to make the call to our son from 5 pm.
24 July 2018:
The mother fails to facilitate my phone call to our son after many attempts.
31 July 2018:
The mother fails to facilitate my call to our son after many attempts.
7 August 2018:
The mother fails to facilitate my call to our son after many attempts.
16 October 2018:
The mother fails to facilitate my phone call to our son.
And 23 October 2018:
The mother fails to facilitate my phone call to our son. I sent a text message to the mother, “It’s about time you start complying with all the Court orders and start facilitating my calls to [X].” No response was received by the mother.
The Court adopted, as is required, the procedure set out in rule 25B of the Federal Circuit Rules 2001 (Cth). The particulars of the contravention were provided to the mother and she advised the Court that she denied breaching the Orders. The mother does not rely on an argument or a plea of reasonable excuse, which is available under the Family Law Act 1975 (Cth).
The mother gave evidence that she sent texts to the father, prior to the Orders being made, that intimated that the child was refusing to speak to him on the phone. The mother was also, through examination-in-chief, referred to a notation in the Order of 21 November 2014 which noted that the child was reluctant to use a phone. An email dated 1 January 2017 was also referred to where the mother made reference to the fact that the child had been out all day, that when he is tired he becomes uncooperative, and urging the father to have patience in relation to the phone calls.
The mother gave evidence in relation to the phone call of 24 October 2017. The mother stated that the phone call was made but she could not get the child to answer the phone. She gave evidence that the child said that he would not take the call and that the child became angry when asked to take the call.
The mother gave evidence regarding the phone call of 17 April 2018. The mother deposed that her son did not want to call his father. There was an attempt to refresh the witness’s memory. The mother was handed a diary (which was not tendered) but this did not disclose any particular information about attempts to facilitate the phone calls by the mother nor did it refresh her memory.
The theme of the mother’s evidence – and it flowed really from one alleged contravention to the next – was that the child does not want to speak with the father on the phone.
She said that the child had been seeing a psychologist. The mother gave evidence that she had mentioned to the psychologist prior to the orders being made in January 2017 that there was some resistance from the child about accepting phone calls from his father. She gave evidence that the last session with the psychologist was over two years ago. Since then, the child has been to the Region C Child and Adolescent Mental Health Service in about May 2018. There was no evidence given by the mother that any of those attendances had anything to do with seeking advice or treatment in relation to him taking phone calls from his father or assisting him in taking those calls. It was not put that the child continues to have issues talking on the phone.
There was no evidence given by the mother that if the father had made a call and the child was not able or available to speak to the father, that she facilitated a further call.
The mother gave evidence that she had sought no assistance since January 2017 in relation to facilitating the phone calls. She also gave evidence that she does not want to fight with the child about a phone call. She further stated that if the child was provided with a phone by his father, then, “all I can suggest, that he would answer his phone as it would be something special if he had a mobile phone call” and that it was worthwhile providing the child with a mobile phone for this purpose.
Consideration
There is no evidence before the Court that anxiety causes the son not to take the phone call. There is no evidence from any medical practitioner that taking the phone call becomes impracticable or impossible because of some medical condition that the child suffers from.
In my view, the evidence before the Court establishes that there has been a contravention of the Court’s orders by the mother. I find that the mother has made no reasonable attempt to comply with the Orders, and, indeed, I find that beyond reasonable doubt.
The mother has an obligation to take reasonable steps to facilitate communication between child and parent in accordance with court Orders. In Stevenson & Hughes (1993) FLC ¶92-363 at ¶79-813, Nygh J (with Fogarty J and Gun J agreeing) stated:
It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it.
If there is any doubt about the requirement of a positive obligation on a parent to cooperate in the performance of orders, I refer to the note attached to the 16 June 2017 Orders. Under ‘Your Legal Obligations’ it states:
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so. There are agencies in the community that can help you and your family adjust to and comply with the order
It was put by counsel for the mother there was not enough evidence to make a positive finding that she had not taken positive steps to encourage the child. In my view, there was no adequate evidence before the Court that she had taken any positive steps to encourage the child to take the phone calls. It is notable there is no evidence that she returned any of the father’s calls on the evenings or the days following the dates when phone calls were made by him.
Accordingly, I find that each of the 11 contraventions which I have referred to earlier are proved and I make the orders.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 5 April 2019
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