Belko & RUSHWORTH (No 2)
[2019] FCCA 3112
•30 October 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BELKO & RUSHWORTH (No 2) | [2019] FCCA 3112 |
| Catchwords: FAMILY LAW – Parenting – Contravention Application – telephone communication allegedly not facilitated – face-to-face time not facilitated – lack of provision of information related to medical issues – assertion of a reasonable excuse – operation of Intervention Order as reasonable excuse – obligations created by parenting orders – obligation to take all reasonable steps not met. |
| Legislation: Family Law Act 1975 (Cth), Div.13A, Pt. VII, sub-divs.E, F, ss.70NAC, 70NAE |
| Cases cited: Ackersley & Rialto [2009] FamCA 817 |
| Applicant: | MR BELKO |
| Respondent: | MS RUSHWORTH |
| File Number: | MLC 6272 of 2013 |
| Judgment of: | Judge Carter |
| Hearing dates: | 13 September 2019 and 1 October 2019 |
| Date of Last Submission: | 1 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 30 October 2019 |
REPRESENTATION
| The Applicant appeared in person. |
| The Respondent appeared in person. |
ORDERS
Allegations 1 to 14 inclusive of the Contravention Application filed by the Father on 19 June 2019 (“the first Contravention Application”), being breach of the order for telephone communication between the dates of 12 February 2019 and 28 May 2019, are found proved.
Allegations:-
(a)15, being the alleged breach of the order for telephone communication on 11 June 2019;
(b)16, being the alleged breach of the order for weekend time on 8 June 2019; and
(c)17, being the alleged breach of the order for the provision of a certificate of completion of a Parenting Orders Program;
of the first Contravention Application are dismissed.
Allegations 3 and 4 of the Contravention Application filed by the Father on 12 July 2019 (“the second Contravention Application”), being the breach of the order for the provision of medical information, are found proved.
Allegations:-
(a)1, being the alleged breach of the order for weekend time on 22 June 2019; and
(b)2, being the alleged breach of the order for holiday time on 29 June 2019;
of the second Contravention Application are dismissed.
The proceedings are adjourned to 18 November 2019 at 2.15pm for consideration of penalty and further orders.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT Melbourne |
MLC 6272 of 2013
| MR BELKO |
Applicant
And
| MS RUSHWORTH |
Respondent
REASONS FOR JUDGMENT
Introduction
The applications before the Court are the Contravention Applications filed by the Father on 19 June 2019 (“the first Contravention Application”) and 12 July 2019 (“the second Contravention Application”). Those applications assert that the Mother has, on multiple occasions, breached the final parenting orders made by her Honour Judge Hartnett (as she then was) on 16 January 2017 (“the final orders”), in relation to the parties’ child X, born in 2010 and aged almost nine. The Father also asserts the Mother has breached the order made on 8 February 2019 by his Honour Judge McNab, regarding the Mother’s failure to provide a certificate of completion of a Parenting Orders Program to the Father.
The specific contraventions alleged by the Father shall be set out later in these reasons.
The hearing before me commenced on 13 September 2019. On that day, both parents appeared in person and each of them gave evidence. The Father relied on the two affidavits he filed in support of each of the respective Contravention Applications and an affidavit filed 24 August, 2019. The Mother did not file a Response or affidavit. She gave evidence, was cross-examined and made submissions.
The matter proceeded in accordance with the procedure as set out in Part 25B of the Federal Circuit Court Rules 2001 (Cth) (“the Rules”). Each of the alleged contraventions were put to the Mother. In relation to the allegations regarding the non-facilitation of face-to-face and telephone time, she acknowledged that time or communication had not occurred. However, she asserted that she had not contravened the orders, or had a reasonable excuse for doing so. In relation to the allegation regarding her enrolment in a Parenting Orders Program, she denied this breach in its entirety. Similarly, she denied breaching the order regarding the provision of medical information pertaining to X to the Father.
At the conclusion of the evidence on 13 September 2019, I made interim orders for X to spend the first part of the September/October 2019 school holidays with the Father. I further ordered that the parties attend a child inclusive conference pursuant to section 11F of the Family Law Act 1975 (Cth) (“the Act”) (“the child inclusive conference”) on the morning of 1 October 2019, and for the matter to return to Court that afternoon.
On 1 October 2019, the parties and X met with Family Consultant Mr D (“the Family Consultant”), who conducted the child inclusive conference interviews. The Family Consultant delivered an oral report in Court that afternoon. A further order was made that day that the final orders remain in full force and effect. It was agreed and noted in the orders made that day that the alternate weekend time between X and the Father pursuant to paragraph 3(c) of the final orders would resume on 12 October 2019, in the new school term. I otherwise reserved my judgment.
Background and procedural history
The parties were in a brief relationship in 2010. They did not live together. X is the only child of the relationship.
Unfortunately, the parties have a long history of litigation in this Court, which commenced in 2013.
The final orders were made on 16 January 2017. Pursuant to those orders, X is to live with the Mother and spend time and communicate with the Father. Relevant to these proceedings, those orders provide, in summary, as follows:-
a)order 3(c) provides that X is to spend time with the Father each alternate weekend from 10.00am on Saturday to 5.00pm on Sunday with such time to be extended to Monday in the event of a public holiday;
b)order 3(d) provides that X is to spend time with the Father:-
From 2017 onwards for the first week of each Victorian school term holidays from 10.00am on the first Saturday to 5.00pm on the second Sunday.
c)order 5 provides:-
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.
d)order 9 provides:-
That the father and the mother shall as soon as practicable notify the other of any serious medical injury or illness suffered by the child while in their respective care and provide details of any treatment, including the name and contact phone number of any treating health professionals and authorise the other party to receive information from those health professionals if necessary.
I should add that order 4 of the final orders provides that changeovers are to occur at the Town E Club carpark, unless otherwise specified in the final orders. It is common ground that for some time, the parties agreed that changeovers would occur at Town E Police Station.
The Father brought previous contravention proceedings against the Mother on 28 November 2018, asserting that the Mother had failed to facilitate telephone communication on a number of occasions between 24 October 2017 and 23 November 2018. That matter proceeded before his Honour Judge McNab. His Honour was satisfied that the Mother had contravened the order, without reasonable excuse, and that she had failed to take steps to encourage the child to take the Father’s phone calls.
On 8 February 2019, his Honour found 11 contraventions proven. The matter was dealt with pursuant to Subdivision E of Division 13A of Part VII of the Act. His Honour ordered that the Mother must attend, participate in and complete as soon as practicable a Parenting Orders Program at Region B Family Care, at her expense. Paragraph 5(e) of his Honour’s orders provides that the Mother must provide “an appropriate certification of completion of the Program to the father and to the Court”. The Father’s Contravention Application was otherwise dismissed.
Unfortunately, telephone communication has continued to be problematic. There have also been difficulties with face-to-face time between X and the Father.
On 6 June 2019, the Mother sought and obtained an ex parte interim Intervention Order against the Father. The Mother and X are named as Affected Family Members. That interim Intervention Order did not include the standard provision permitting the Father to do anything permitted by an order under the Act.
The Father filed the first Contravention Application on 19 June 2019.
The Intervention Order proceedings returned to the Magistrates’ Court of Victoria (“the Magistrates’ Court”) on 3 July 2019. On that day, the interim Intervention Order was amended to include the provision permitting the Father to do anything permitted by an order under the Act. The matter was adjourned for a further hearing.
On 12 July 2019, the Father filed the second Contravention Application.
On 22 July 2019, Deputy Registrar F dealt with the first return of the Contravention Applications and listed both before me on 13 September 2019 for hearing.
The Intervention Order proceedings returned to the Magistrates’ Court on 14 August 2019. The parties reached an agreement on that day, pursuant to which the Mother withdrew her Intervention Order application upon the provision of an undertaking given by the Father, without admission, for 12 months. That undertaking is a ‘limited’ undertaking, prohibiting the Father from committing family violence, but not imposing the additional conditions often included in such orders and undertakings. The undertaking names both the Mother and X as Affected Family Members.
The contravention proceedings then commenced before me on 13 September 2019.
The first Contravention Application filed on 19 June 2019
The alleged contraventions fall into three categories:-
a)alleged contraventions of order 5 of the final orders in relation to telephone time between 12 February 2019 and 11 June 2019;
b)an alleged contravention of order 3(c) of the final orders in relation to weekend time scheduled to commence on 8 June 2019; and
c)an alleged contravention of order 5(e) of the orders made on 8 February 2019, regarding the provision of a certificate of completion of a Parenting Orders Program.
In relation to the Mother’s alleged failure to provide the Father with a certificate of completion of a Parenting Orders Program, the Father referred to order 5(a) of the orders made on 8 February 2019. That order required the Mother to “attend, participate in and complete, as soon as practicable, an appropriate parenting orders program at Region B Family Care…” The contravention pleaded refers only to an alleged breach of the part of the order that required the provision of a certificate upon completion of the program.
The second Contravention Application filed on 12 July 2019
The Contravention Application filed on 12 July 2019 asserts that the Mother contravened the final orders as follows:-
a)order 3(c), when on 22 June 2019 X was not made available for his alternate weekend time with the Father;
b)order 3(d), when on 29 June 2019 X was not made available for the first half of the school holidays with the Father; and
c)order 9, when on 30 March 2019 and 4 June 2019, the Mother did not provide information regarding X’s medical treatment or the details of the relevant treating doctor.
The Father’s evidence
The Father deposes that the Mother has continued to breach the orders for telephone communication and face-to-face time. The Father says that the Mother is engaged in a campaign to exclude him from X’s life. He further says that the Mother’s actions are depriving X of the opportunity to know and be cared for by the Father, and are preventing him from continuing his relationships with members of the Father’s extended family.
The Father was subjected to cross-examination by the Mother. I found him to be a compelling witness. He gave his evidence in a straightforward, credible and forthright manner. I accept both his oral evidence and the evidence in his affidavits filed in these proceedings.
The Father’s evidence in relation to the telephone communication
In relation to the alleged breaches of the order regarding telephone time, it is the Father’s evidence that on each of the 15 days set out in the first Contravention Application, he telephoned X between 5.00pm and 6.00pm. He says on some occasions he telephoned the Mother’s number twice. He says on some occasions the calls were not answered, and on other occasions his call went straight through to message bank, suggesting that the Mother’s telephone was switched off. On none of the occasions was he able to speak with X, nor did the Mother ensure a return telephone call was made either that evening, the next day, or at all.
The Father deposes that on 26 March 2019 he was able to have a telephone conversation with X. He says he could hear the Mother in the background “instructing” X. The Father also deposes that he has spoken to X about the telephone communication. He said that X has told him on a several occasions that he does not want to speak to the Father on the telephone, and when asked why, X said it was because of his Mother, or that his Mother would not let him. The Father was not challenged in relation to this evidence.
The Father’s evidence regarding face-to-face time
The Father asserts the Mother contravened order 3(c) of the final orders, when on 8 June 2019, she did not make X available to spend time with the Father. He deposes that on 6 June 2019 at 5.57pm, the Mother sent a text message to him saying that X would not be made available for collection on Saturday 8 June 2019. She told him he would be receiving an interim Intervention Order.
In his affidavit filed on 12 July 2019, the Father sets out that he attended in Town E for changeover. The weekend of 8 June 2019 was a long weekend, and accordingly, time was to conclude on the Monday afternoon rather than the Sunday. The Mother did not attend at changeover with X at the commencement of time. He similarly asserts that X was not made available for the weekend of 22 June 2019, or for the first week of the school holidays.
The Father’s evidence regarding notification of medical issues
In relation to the alleged breaches of order 9 of the final orders, the Father included in his affidavit filed 12 July 2019 a text message sent to him by the Mother on 19 December 2018. In that text message, the Mother said that X had suffered a severe allergic reaction requiring his attendance at hospital. She said X was waiting to see an allergy specialist. She further asserted that X’s allergic reactions can be severe, could cause him to have breathing difficulties requiring him to be immediately taken to hospital, and that anaphylaxis was a possibility. I do not know whether or not the Mother provided the Father with the name and contact details of the allergy specialist to whom she was taking X.
When cross-examining the Father, the Mother referred to having taken X to an eye specialist on 18 February 2019. According to text messages exhibited to the Father’s affidavit filed on 12 July 2019, the Mother told the Father on 29 March 2019 that X returned from time with his Father with “bloodshot eyes which the eye specialist said is allergy related”. In his responding text message, the Father requested a copy of any medical report. The Mother’s response was she had presented a copy of that “in court”. When the Father texted:-
So the court has a copy not me. Please provide copy of Dr’s. report with [X] tomorrow
the Mother declined to do so. She sent a text back that said “get a copy from the court yourself”.
The Father also asserts the Mother failed to provide the relevant information regarding an alleged back injury sustained by X whilst in the Father’s care. The Father deposed that the first he knew of any alleged back injury said to have been incurred on about 25 May, 2019 was when he was provided with the Intervention Order complaint on around 16 June 2019, about 3 weeks later. In that complaint, it is asserted that the Father cracked X’s back, and persisted in doing so despite X’s requests to stop. The complaint sets out that “X was seen by a doctor on 3/6/19 who made a report”. He said he had not been provided with the details of the treating practitioner.
The Father denied the Mother’s allegations that X was at risk in his care, or that X was in any way injured in his care. The Father’s evidence was that X’s back cracked when the Father picked him up for a cuddle. He said there was no injury, and no complaint by X. The Father said he subsequently suggested to X that he would “crack” his back as a joke, when the Father was really referring to giving X a cuddle.
The Father also denied the Mother’s allegation that he declined to provide X with medication as required. I accept the Father’s evidence that he purchased medicine as directed by the Mother and that he would have provided that medication if X needed it. The Father said X did not exhibit any allergy symptoms when in his care and accordingly, he did not require medication.
The Father also said his relationship with X was positive, warm and loving, and that X is happy in his care. This has been corroborated by the oral report given by the Family Consultant who conducted the child inclusive conference, as set out later in these reasons.
The Mother’s evidence
The Mother gave evidence in chief and she was cross-examined by the Father. It was clear from her own evidence and from the questions she asked of the Father that she regards X as being at risk in the Father’s care, and considers that he does not have a good relationship with the Father. She suggested that:-
a)X hates school holidays;
b)he is emotionally distressed following visits;
c)the Father does not nurture or attend to X’s needs;
d)the Father provides inappropriate food;
e)the Father fails to give X medication or attend to his medical needs;
f)the Father has locked X in a room and inappropriately disciplined him; and
g)X has returned from time with the Father with a red bottom, and on one occasion, infested with head lice.
She has taken photographs of X’s bottom and hair on those occasions. Additionally, she said the Father permits X to play inappropriate computer games, such as Fortnite, that she says are detrimental to X’s wellbeing.
Based on the Mother’s evidence, I have significant concerns that she has involved X in the parental dispute and made him aware of her views that he is at risk and unsafe with the Father. The Mother appears to have limited insight about the impact on X of her doing so.
The Mother’s evidence in relation to the telephone communication
The Mother conceded that the telephone communication had not proceeded on each of the occasions as pleaded. She did not dispute that the Father had attempted to telephone X on each and every occasion as set out. The Mother also conceded that on no occasion had she arranged a return call.
The Mother said she has “done [her] best” and “done all [she] can” to get X to take the calls, but that he does not want to speak with his Father.
Her evidence was that X refuses to take the phone from her hand when she tells him the Father is calling, refuses to answer the call, and refuses to call his Father back. She said X runs off, cries and yells at her and that X is scared of his Father. She said on occasion X has been engaged in other activities, such as at the skate park, and he has declined to return his Father’s call either that evening or at any time. She said she has encouraged X to speak to his Father, and has told him he should do so. She believed there was nothing else she could reasonably do to get him to speak to the Father on the telephone. She said she had not disciplined X for refusing to speak to the Father on the telephone, and had not imposed any consequences on him for failing to do so. She also said she has advised X on a number of occasions to tell his Father that he does not want to speak to the Father on the telephone.
The Mother denied that she had given X the choice of whether to speak to the Father or not. However, in a chronology prepared by the Mother in around July 2019, exhibited to the Father’s affidavit, and relied on by her in support of her Intervention Order application (“the chronology”), there is an entry dated 19 February 2019 in which she records:-
I told [X] “[Mr Belko] may call soon. Are you going to answer the phone?” [X] said “No, I will go outside. I told him I don’t want him to call”.
Similarly, in an entry dated 26 February 2019, the Mother records:-
Phone rang. [X] was watching television. I called out to [X] asking if he would accept the call from [Mr Belko]. “No, I don’t want to”. I said it is YOUR choice. “I don’t want to” (angry, raised voice). “No”.
When this was put to the Mother, she maintained that she was not giving X the choice of whether or not he wanted to speak to his Father. She said she was giving him the choice of telling his Father “how he feels”. In my view, this does not assist the Mother’s case. It does not support a finding that she has made reasonable attempts to comply with the order. It indicates the Mother was leaving the decision up to X, and that he had an option.
It is also clear from the Mother’s evidence that she has encouraged X to tell the Father that he does not want to speak to him on the telephone. She gave oral evidence to that effect. Additionally, in the chronology, there is an entry dated 26 March 2019 in which the Mother records:-
I said to [X], “when [Mr Belko] calls you should answer it”. He said crossly, “No”. When [Mr Belko] called I said to [X] you need to tell him you don’t wish to speak to him, he is calling now”. [X] said “I have already told him before”. I said “you need to tell him again”, holding out the phone to him.
Two things arise from that. Firstly, this is an example of the Mother inappropriately involving X in parental matters. It reflects poorly on her parenting that she should encourage an eight year old child to have a conversation of that nature with the Father. Those conversations should occur between adults. She demonstrated a lack of insight into the inappropriateness of encouraging X to tell his Father he does not want to speak to him.
Secondly, it demonstrates that the Mother was not taking reasonable steps, or taking positive action to ensure compliance with the order. If the Mother is dissatisfied with the order for telephone time, it is incumbent upon her to bring an application to alter that order, rather than being complicit in, and even encouraging of the order being breached.
The Mother’s evidence regarding face-to-face time
The Mother conceded that X has not been made available to spend any face-to-face time with his Father from 26 May 2019, including on 8 June 2019 or at any time subsequent to that date. She says time ceased following X complaining to her that the Father insisted on cracking his back. It was her evidence that this was a dangerous practice and had caused injury to X. She said X returned from his Father’s home on 26 May 2019 sobbing, saying he was scared of the Father and that the Father had cracked his back. X also told the Mother that the Father had disciplined him inappropriately. She said X is terrified of the Father, that the Father has a terrible temper and that he is not safe in his Father’s care.
In support of her allegations, the Mother tendered a report from Dr G, general practitioner (“Dr G”), dated 15 July 2019. The history recorded in that report is that the Father cracked X’s back by lifting him up, that he does this every time he sees X despite being told not to, and that X’s back had been sore after this. That was apparently reported to Dr G on 27 May 2019. It is not clear who provided that history. At any rate, whilst Dr G noted X had a sore lower thoracic spine and was tender, there was no bruising. Subsequent examination on 9 July 2019 reported that X had excellent movement. An X-ray on the spine reported entirely normal findings.
The Mother advised the Court that on 6 June 2019, she obtained an interim Intervention Order. That order was obtained ex parte. Both the Mother and X are named as Affected Family Members and the Father named as the respondent. The Intervention Order is a ‘full order’. As set out, that order did not include the ‘usual provision’ permitting the respondent to do anything that is permitted by an order under the Act. Accordingly, that order, which lasted until 3 July 2019, prevented the Father from having any contact or communication with either the Mother or X between 6 June 2019 and 3 July 2019.
I understand that time did not immediately resume following the amendment of the Intervention Order on 3 July 2019 to include the standard provision with regard to family law orders. The Mother said she had told X he will be “fine” with his Father, and that his Father has now made a promise not to hurt him. She says that despite this, she had still been unable to make X go between 3 July 2019 and 13 September 2019. I note that she did, however, ensure X attended for the first half of the school holidays with the Father in September/October 2019 pursuant to my orders of 13 September 2019.
The Mother’s evidence regarding the Parenting Orders Program certificate
When the matter commenced on 13 September 2019, the Mother said she had not yet completed the Parenting Orders Program, and accordingly, she had no certificate of completion to provide to the Father. The Mother said she enrolled in the course immediately following the making of the orders in February 2019. She was initially slated to start the program in the previous term, and thought she was booked in for that, but was not included on the list when she arrived for the first session. She then enrolled and started the program on 13 August 2019. On 13 September 2019, she said she had attended five appointments, and had one more to go. When the matter returned to Court on 1 October 2019, she had completed the course and provided a certificate evidencing that. I accept her evidence in that regard.
The Mother’s evidence regarding notification of medical issues
In relation to the alleged contravention that the Mother had not notified the Father as soon as practicable of any serious medical injury or illness suffered by X, or provided the Father with the details of any treating health professionals, the Mother seemed perplexed. She said she had kept the Father informed regarding medical issues, but no evidence was produced by her to corroborate that assertion. She said she thought her solicitors had provided information to the Father, but gave no details as to when that had occurred.
The evidence of the Family Consultant
The Family Consultant met with the parties and X on 1 October 2019. She gave evidence in Court that afternoon and has also provided a written memorandum.
X was brought to the appointment by the Father, having spent the first half of the holidays in his care. The Family Consultant described him as a quiet boy, who said his whole body hurts, which he thought would “probably go away if [the parents] were both happier”. He said he missed his Mother, but he wanted the Judge to know that he wanted his parents to get along and that “I am fine spending time with both of them”.
The Family Consultant said X “is very much triangulated in loyalty conflicts between his parents”. He told the Family Consultant that he tells the Mother negative things about his Father, and the Family Consultant opines that:-
[X] is bearing the brunt emotionally and physically of the parental hostility and reluctance to consider their child’s needs over and above their needs.
No formal observations between X and his parents were conducted, but informally, the Family Consultant observed that he had “warm and strong relationships with each of his parents”. She also recorded that the Father:-
…appears to have been patient in his efforts to spend consistent time with [X] and appears to have provided a positive contribution to [X’s] development.
In terms of the Mother, it is reported that she maintained that X says he hates the Father, he has returned home with a red, raw bottom, is inappropriately disciplined by his Father and does not want to spend time with him. The Family Consultant noted that the Mother appears to continue to deprive X of a relationship with his Father, and that:-
The only way [X] will be able to develop and maintain a relationship with his father is if the mother is supported with psychological assistance and therapy.
I note the Mother has completed a Parenting Orders Program, which she completed prior to meeting with the Family Consultant. It appears the Mother may be struggling to adopt and implement the insights, lessons and techniques provided to her in that course.
The Family Consultant also reported that the Mother advised her she intended to relocate to Town H, north of City J in the State of Queensland. Such a relocation would clearly impact on X’s relationship with his Father. No formal application has yet been filed by the Mother.
The Family Consultant made a number of recommendations, including:-
a)X have some therapeutic assistance to help him navigate the parental conflict;
b)consideration be given to the parties’ being psychiatrically or psychologically assessed;
c)a Family Report be prepared;
d)X remain living with his Mother and spending time with his Father on alternate weekends and for half of school holiday periods; and
e)the Mother attend upon a psychologist “with regard to her persistent reluctance to support X’s relationship with his father”.
The law
Section 70NAC of the Act provides that a person is taken to have contravened a parenting order, if and only if a person bound by the order has intentionally failed to comply with the order, or made no reasonable attempt to comply with the order.
Relevantly, section 70NAE sets out that a person will have a reasonable excuse for contravening an order if they did not understand the obligations imposed by the order, or if they believed, on reasonable grounds that the contravention was necessary to protect the health and safety of a child.
The relevant standard of proof is generally the civil standard. That is, to find a contravention proven, I must be satisfied on the balance of probabilities that the contravention occurred. However, the Court must be satisfied beyond reasonable doubt of a contravention in the event the Court is considering imposing a community service order, a fine or a prison sentence.
If a person asserts they had a reasonable excuse for that contravention, the relevant standard, again, is the balance of probabilities.
The case law, beginning with Gaunt and Gaunt [1978] FamCA 97 makes it clear that a reasonable excuse cannot be made out because a party disagrees with an order. Additionally, a party cannot make out a reasonable excuse if they believe the order is not in the child’s best interests: see In the Marriage of O’Brien [1992] FamCA 52.
This is not a matter in which the Mother asserts that she did not understand the obligations imposed by the order. The Mother’s case is that she has done all she can to comply with the orders for telephone communication, and that she otherwise has a reasonable excuse in relation to there having been no communication or face to face time. She denies the other contraventions as alleged.
Attached to all parenting orders is the “Parenting Orders – obligations, consequences and who can help” factsheet. That sets out the legal obligations imposed on parties by orders as follows:-
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.
The case law confirms the requirement of that positive obligation. For instance, in Stevenson & Hughes [1993] FamCA 14, Nygh J (with whom Fogarty and Gun JJ agreed) said at paragraph 25:-
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.
Cronin J made similar observations in Ackersley & Rialto [2009] FamCA 817. In that case, his Honour was critical of the Mother having empowered the children regarding attendance or non-attendance for time with their Father, for having made her dissatisfaction in relation to the orders clear to the children, and for having failed to make any attempts to coerce the children to comply with the orders. He said at paragraph 73 that the Mother had the responsibility of ensuring:-
…that if the children claimed that they would not accept the orders, as a responsible parent, she would discipline them in the same way as any other parent would discipline a child by removing privileges if the child was defiant.
Findings
Face-to-face time
In relation to all the alleged breaches of weekend and holiday time that occurred between 6 June 2019 and 3 July 2019, I am satisfied the Mother had a reasonable excuse to breach the final orders for that period. For those periods, an interim Intervention Order was in place, the terms of which prohibited face-to-face contact and any communication between the Father and X. That must be a reasonable excuse.
The making of that finding should not be necessarily interpreted as an acceptance that the Mother had a genuine basis for obtaining the interim Intervention Order. I do not know what evidence the Mother gave the Magistrates’ Court on 6 June 2019. However, I note that section 53 of the Family Violence Protection Act 2008 (Vic) provides that a Magistrate may make an interim Intervention Order if the court is satisfied, on the balance of probabilities, that an order is necessary to ensure the safety of the Affected Family Member, or to protect a child who has been subjected to family violence committed by the respondent. The Magistrate who heard the interim application must have been so satisfied.
In those circumstances, as set out, the Mother had a reasonable excuse not to comply with the orders of this Court. Accordingly, the Mother had a reasonable excuse in relation to the telephone communication that did not occur on 11 June 2019 and in relation to the face-to-face contact that did not occur on 8 June 2019, 22 June 2019 or 29 June 2019. Those counts are therefore dismissed.
The interim Intervention Order was varied by consent on 3 July 2019. On that day, the ‘usual provision’ permitting the respondent to do anything that is permitted by an order under the Act was inserted into the interim Intervention Order. The Intervention Order matter has now been resolved by the Mother withdrawing her application upon the Father providing a limited undertaking, without admission, for 12 months. I understand the Mother continued to withhold X after the Intervention Order was varied, but no alleged contraventions post-dating the making of that varied intervention order were included in the two Contravention Applications before me.
I note that holiday time occurred during the September/October 2019 school holidays. The Family Consultant’s recommendations were that face-to-face time continue in accordance with the final orders. She did not recommend a reduction or cessation in the telephone communication. She did not form a view that X was at risk in his Father’s care. The risks she did identify were that X is caught in the parental conflict, and that the Mother continues to deprive X of a relationship with his Father.
Telephone communication
In relation to the 14 alleged breaches of the order for telephone communication between 12 February 2019 and 28 May 2019 inclusive, I am satisfied that Mother has made no reasonable attempts to comply with the order. She has not, as she is obliged to do, taken positive action, or taken reasonable steps to ensure the telephone communication occurred. Beyond asserting she “told” X he should speak to his Father, and that she “held out the telephone to X”, there was no evidence she has taken reasonable steps to comply with the orders. Those actions are akin to the parent who brings the child to the front gate and who then stands behind the child with folded arms, doing nothing to encourage compliance or discourage non-compliance.
On occasions, the Mother has given X the clear impression it is a matter of his personal preference and choice whether or not to speak to his Father. On some occasions, the Mother has encouraged non-compliance with the order. She has put the power into the hands of X. Whilst the Mother says she “told” X to take the call, there is no evidence there were any attempts at coercion by her, nor consequences imposed on X if he did not do as she asked. She took no steps to discourage X from his alleged opposition to the phone calls, and appears at times to have encouraged same. She did not discipline him for non-compliance. In those circumstances, telling X to take the call or telling him to speak to his Father would have a hollow ring to it.
There was no independent evidence called by the Mother that would support a finding that X was distressed or anxious about the telephone calls. There was nothing in the Mother’s evidence that could be construed as providing any reasonable belief on the Mother’s behalf that the contravention was necessary to protect X’s health or safety. There was nothing in the Mother’s evidence that could support a finding that she had any reasonable excuse for the non-compliance with the Court orders.
It was this Court who made the final orders in 2017. The final orders were made on the basis that the Court was satisfied those orders were in X’s best interests. It was the Mother’s responsibility not to involve X in the adult dispute or adult concepts. It is also her responsibility to ensure that X is compliant with what the Court had found to be in his best interests.
The Mother was well aware of her legal obligations as set out in the fact sheet. Not only does she have copies of the orders, but her attention was drawn to these matters by his Honour Judge McNab in his reasons of 6 February 2019.
Accordingly, I am satisfied on the balance of probabilities that the Mother contravened the orders on each occasion as plead. She made no reasonable attempt to comply with the order. I am also satisfied on the balance of probabilities that she had no reasonable excuse to do so.
Certificate of completion
In relation to the alleged breach of the failure to provide the certificate of completion of the Parenting Orders Program, I am not satisfied that the Mother has breached order 5(e) of the orders made on 8 February 2019. The Mother only received the certificate during the running of these proceedings, and she promptly provided a copy of it to the Father. That count must accordingly be dismissed.
Notification of serious injury or illness
The terms of the final orders require each parent to notify the other as soon as practicable of any serious medical injury or illness suffered by X whilst in their respective care, including providing the name and contact phone number of those treating X.
Given the Mother’s text messages to the Father included references to X’s allergies being sufficiently severe that hospitalisations and anaphylaxis were possibilities, at least so far as the Mother is concerned, X’s allergies appear to be serious.
The Mother did not provide any evidence that she had provided the name and details of the treating health professionals regarding X’s allergies. Nor did she provide the details of the eye specialist upon whom X attended to the Father either on 18 February 2019 or “as soon as practicable thereafter”. Indeed, in the text message exchange on 29 March 2019, she told him to get the information himself from the Court.
Similarly, the back injury the Mother asserts was sustained by X on or about 25 May 2019, was regarded by the Mother as sufficiently significant and serious that it formed part of her application to obtain an Intervention Order naming X as an Affected Family Member. She also took X to two medical appointments and had him undergo an X-ray.
X was first seen by Dr G on 27 May 2019. The first the Father knew there was an allegation of an injury was when he received the Mother’s complaint prepared in support of her application for an Intervention Order on around 16 June 2019.
According to the report of Dr G dated 15 July 2019, tendered by the Mother in these proceedings, X was seen again on 9 July 2019 in relation to the same issue and an X-ray was undertaken. That information was not provided to the Father at that time, nor as soon as practicable thereafter.
The details of the complaint to Dr G, the medical treatment X received as a result and the report dated 15 July 2019 were not provided to the Father until the hearing before me on 13 September 2019. That is, the Mother failed to provide the Father with details about the alleged injury, and the details of the medical practitioner/s X attended, until almost four months after the injury was allegedly sustained and X was first seen by a medical practitioner. I am satisfied that the Mother did not inform the Father as soon as practical of this medical issue. I note further that the Mother has not produced any evidence that demonstrates any efforts by her to inform the Father as she is obligated to do under the orders.
I am satisfied on the balance of probabilities that the Mother has made no reasonable attempt to comply with her obligations pursuant to order 9 of the final orders as asserted by the Father, both in relation to the eye specialist that saw X in February 2019, or in relation to the alleged injury to X’s back in May 2019. I am further satisfied on the balance of probabilities that she has no reasonable excuse for not doing so.
Further hearing
Accordingly, having been satisfied that the Mother has contravened the orders as set out in these reasons without reasonable excuse, I find the following contraventions proven:-
a)the 14 breaches of the telephone communication; and
b)the two breaches of order 9 in relation to the provision of medical information.
Having found these contraventions proved, I will need to consider the question of penalty, including determining whether this matter falls within Subdivision E or Subdivision F of Division 13A of the Act. The parties will need to consider these issues and make further submissions to me in due course.
I will also need to hear further from the parties regarding whether there should be any alterations to the final orders as they stand. There seems little benefit to X for his parents to continue to litigate in this Court, and it may be in his best interests that the orders be varied to reduce the potential for conflict and further contravention proceedings.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Carter
Associate:
Date: 30 October 2019