Bender and Matthews

[2017] FamCA 361

FAMILY COURT OF AUSTRALIA

BENDER & MATTHEWS [2017] FamCA 361

FAMILY LAW – PRACTICE AND PROCEDURE – where the applicant seeks leave to file a contravention application – where the applicant seeks leave to file an application to vary final parenting orders – order made for the applicant’s application to be dismissed –final parenting orders made 1 June 2015 remain in force

Family Law Act 1975 (Cth)

APPLICANT: Ms Bender

RESPONDENT: Mr Matthews

FILE NUMBER: MLC 3524 of 2008

DATE DELIVERED: 26 May 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Thornton J

HEARING DATE: 2 May 2017

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person (by telephone)

Orders

1. That the applicant’s Application in a Case filed 3 November 2016 be dismissed.

2. That the orders made by Johns J on 11 June 2015 remain in force.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bender & Matthews has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3524 of 2008

Ms Bender

Applicant

And

Mr Matthews

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant mother seeks leave by way of an Application in a Case filed 3 November 2016 to file a Contravention Application and an application to vary final parenting orders made by Johns J on 11 June 2015.  The final parenting orders were made under Part VII of the Family Law Act 1975 (Cth) (“the Act”). The child, the subject of the final parenting orders, is M aged eleven (born in 2005) who is the only child of the parties. She has been the subject of proceedings in this Court and the Federal Court Circuit Court since 2008.

2. The reason the leave is necessary is that after a four day trial in January 2015 Johns J made a number of orders when judgment was delivered on 11 June 2015, including an order for the child to spend time and communicate with the mother at a children’s contact service. However Johns J made an order that until 1 July 2017 the mother be restrained from making any application in respect of the child under Part VII of the Act to any court having jurisdiction under the Act without leave of a judge of the Family Court of Australia first obtained.

3. The father has been served with the Application in a Case and has filed a Response on 29 November 2016 seeking that the final orders made 11 June 2016 remain in place.

4. The applicant also sought leave in her Application in a Case for “subpoena to the Australian Immigration Dept” which was not explained further.  

5. There was some delay in the hearing due to the father not having been served by the mother with some of the material.

Background

1. The background is set out in the Reasons for Judgment delivered by Johns J on 11 June 2015.  The parties were married in 2003 and separated in February 2007 when the child was aged two years.  Final parenting orders were made by Macmillan J on 27 September 2013 after a seven day trial.  Those orders provided that the father have sole parental responsibility for the child, that the child live with the father and the question of what time if any the child should spend with the mother was reserved.  As a result of those orders the child ceased living with the mother and commenced living with the father.

2. A trial was conducted by Johns J over four days in January 2015 when the mother sought to reopen the question of with whom the child should live on the basis that there had been a significant change of circumstances since the orders were made by Macmillan J.  The mother sought orders that the child be returned to her primary care.  The proceedings also concerned the issue of what time, if any and upon what basis the child should spend with the mother.

3. The Final Orders made by Johns J on 11 June 2016 provided for the child to spend time with the mother for 2 hours on one occasion per month at a Contact Service and Order 1(b) provided that the mother spend time and communicate with the child:

   By telephone on Christmas Day, Easter Sunday, the child’s birthday, the mother’s birthday and Mother's Day each year and to facilitate such communication:-

   (i)such calls to take place at 6.00 pm on each occasion unless otherwise agreed between the mother and father in writing;

   (ii)the father do all acts and things to ensure that the child initiates the telephone call to the mother’s landline or mobile number;

   (iii)the father be at liberty to monitor the telephone calls on loudspeaker and terminate the calls in the event that the mother discusses subjects or issues that may undermine the child’s relationship with her paternal family or destabilise her care arrangements; and

   (iv)the mother keep the father advised at all times of a current telephone number on which she can be contacted.

4. Order 3 provided:

   That the father do all acts and things as may be required to ensure that the child continues to attend upon [Dr J] or her nominee for such therapy or counselling support as may be recommended by [Dr J], the father to be solely responsible for the cost of that therapy and/or counselling support.

5. Order 5 provided:

   That the father and mother utilise a communication book which is to be provided to the mother at the beginning of each occasion of supervised time and returned to the father at the end of that period of time with the purpose of the said book being to provide the mother with up-to-date information on a monthly basis about the care, welfare and development of the child including but not limited to details of her extra-curricular activities, her involvement in special events, her special academic or educational achievements, and her attendances on any medical or dental specialists.

6. Order 7 provided:

   That until 1 July 2017 the mother be and is hereby restrained from making any application in respect of the child under part VII of the Family Law Act 1975 (Cth) to any court having jurisdiction under the Act without leave of a Judge of the Family Court of Australia first obtained.

7. After the father was served with the mother’s supporting material at the last Court event on 8 March 2017, at his request he was given an opportunity to file any response and affidavit to the mother’s draft contravention application and draft affidavit in support of the contravention application by no later than 4.00 pm on 12 April 2017.  The father did not file any further Response but filed an affidavit on 13 April 2017.  The matter was adjourned to the Judicial Duty List for hearing on 2 May 2017.

The hearing

1. On 28 April 2017 the father filed a request to attend by telephone for the hearing but did not serve this application on the mother.  Attached to that application was a medical certificate which provided as follows:

   [The father] has sustained a fracture to his right knee and has just undergone orthopaedic surgery.

   Her [sic] is not fit to attend court on 2nd May due to his immobility.

2. The mother did not oppose the father’s request and he participated in the hearing by telephone.

3. The hearing proceeded by way of submissions from both parties who were self-represented.

4. The mother relied upon the following documents:

   ·Application in a Case filed 3 November 2016; and

   ·Draft affidavit of the mother filed 13 December 2016.

5. The father relied upon the following documents:

   ·Response filed 29 November 2016;

   ·Affidavit of the father filed 29 November 2016;

   ·Affidavit of the father filed 2 December 2016; and

   ·Affidavit of the father filed 13 April 2017.

Contravention application

1. The mother maintained that the father was in contravention of the orders made by Johns J for spending time with the child because he had failed to bring the child to the Contact Service on the following months without reasonable excuse:

   ·    October, November and December 2015;

   ·    January, February, March, April, June 2016.

2. The mother claimed that the father contravened Order 3 of the final orders by not providing the child for the court ordered monthly counselling sessions with Dr J between November 2015 and July 2016.

3. The mother claimed that the father was in contravention of Order 5 of the final orders in that he had failed to provide a communication book or any emails, letters or texts regarding the welfare of the child during the months when the child was not presented for contact visits.

4. The mother also claimed that the father was in contravention of Order 1(b)(i) and (ii) of the final orders because she did not speak with the child on Christmas Day 2015 at 6.00 pm and that the father did not call her at 6.00 pm on the mother’s birthday because the mother had to call the child at 7.30 pm.

Application to vary parenting orders

1. The mother deposed to having worked extremely hard with her psychologist when she had six months of counselling as recommended by Macmillan J and deposed to having a better understanding of the importance of the child having a meaningful relationship with both parents and having more insight into the benefits of the child having a healthy relationship with both parents.

2. The mother deposed to having completed a “Parenting certificate” at F Contact Centre dated November 2013.   She deposed to missing her daughter and wanting to spend time doing “mother and daughter things” and taking her on holidays.  She raised concerns about the child’s extra-curricular activities not being encouraged.  Her affidavit material focussed on the history of the application and blaming the father for failing to support her relationship with the child.

3. An example of the mother’s evidence is paragraph 31 of Annexure Bab-14 to her affidavit where she deposed:

   In our March 2015 visit at [F Contact Centre] [the child] was a little distant which surprised me she had told me that she hadn’t heard from me by telephone and I had said the Father had not facilitated calls between her and I.  The worker said that was not appropriate as at that stage I was allowed to have two calls a week to [the child].  But each time I attempted the father did not comply. [The child] was clearly upset about it at the visit.  I know I shouldn’t of said anything but I knew it would of hurt [the child] more to think I didn’t want to speak to her when I clearly did.  I thought it important she knew I wanted to.  It states in the Contact report for that day that I was in tears as was [the child] and it was noted that [the child] said to [Ms IE] the worker for that day that “Do you think Mum is telling the truth about the calls?  It was sad that the Father was the one behind the upset when my daughter obviously just wanted to speak to me during the week.this [sic] was just another attempt for the father to put a wedge between [the child] and I.  It all became too much for me that I didn’t have the next three visits as it all became heartbreaking.  Until I resumed the visit in July 2015.  I couldn’t bare the fact that [the child] was distant to me at the March 2016 visit because she thought I didn’t want to call her when I desperately did.  I just withdrew and was very upset by what the Father was doing. (Original emphasis)

Conclusion

1. The Independent Children’s Lawyer (“ICL”), in the four day trial before Johns J made an application for the two year order, which was subsequently made, for the restraint upon the mother from making any application in respect of the child under Part VII of the Act without leave of a Judge of the Family Court of Australia first obtained. This application was supported by the father. Johns J refers to those submissions at [314]-[321] of her Reasons for Judgment and concluded at [323]-[324]:

   Having been the subject of litigation since she was two years of age, I am satisfied that the time has come for [the child] to be relieved of that burden. It is likely that [the child] is unable to recall a time in her life when she has not been the subject of conflict between her parents. [The child] has been involved in therapeutic counselling on an almost monthly basis since 2012 to assist and support her with the management of her stress and anxiety, which in large part is due to the conflict between the parties.  It is a sad reflection on both parties’ parenting that their nine year-old daughter requires such intensive therapeutic intervention.

   I am satisfied that the restraint is appropriate to ensure that [the child] can enjoy a settled period in her life without the spectre of having to attend upon Family Consultants, an ICL or other professionals related to Court proceedings. Accordingly, I will make an order in the terms sought by the ICL.

2. Since those final orders were made, there is no dispute that the child has spent some time with the mother at the Contact Service.  The father deposed that the child is settled in a supportive family environment, is excelling at school, and has a large friendship group.

3. The father filed affidavits annexing letters from the Contact Service which corroborated his untested evidence that there was “a gap in visits” at the Contact Service  due to the mother “not organising visits and later due to her inappropriate behaviour” and child refusal.  The father deposed that the child received counselling offered by F Contact Centre, because the child displayed extreme levels of distress about visiting the mother and it was agreed that visits should not continue due to child refusal.

4. The mother agreed with the correspondence from the Contact Service annexed to the father’s affidavit material that she had withdrawn from the contact visits for some months because she was very depressed.  The mother was aware of the views expressed by the Contact Service that the child was refusing to spend time with her and that the mother’s conduct at the Service was inappropriate on occasions.  However the mother generally took issue with the correspondence from the Contact Service annexed to the father’s affidavit material.  The correspondence referring to “child refusal” and inappropriate behaviour by the mother was not accepted by the mother.  The mother referred to a meeting which she attended with the Contact Service after the contact visit on 26 September 2015 before the visits were suspended for about eight months.  The Contact Service visits were suspended when the mother was told about the child’s refusal to attend contact.  The mother claimed that she was not provided with any reasons at that meeting and that she does not accept that the child was refusing to participate in spending time with her at the Contact Service.  The mother was aware of all of the material contained in the correspondence from the Contact Service and disagreed that she had denigrated the Service or that she had not complied with the rules as set out in that correspondence.

5. The mother’s behaviour during supervised time with the child was the subject of the trial before Johns J. Johns J made findings against the mother at [230]-[231] of her reasons for judgment.  Johns J was satisfied that the mother had not been frank with the Court as to her conduct at the contact centre and that the mother had no regard as to the impact upon the child of her conduct in passing notes or whispering to her.  Johns J stated at [232] that:

   …Those actions placed [the child] under intolerable pressure and ultimately led to her disclosing her mother’s behaviour.  That [the child] was placed in that position was due to the mother’s behaviour.

6. Annexure 1 to the father’s affidavit filed 29 November 2016 was a letter from the Contact Service to the father outlining that the mother elected not to pursue supervised time after the court orders were made in April 2015 but that in July 2015 she requested to recommence visits which took place in July, August and September 2015. However the September visit was cancelled after one hour due to the mother being “inappropriate during the visit”.  The letter goes on to provide that following these visits, a counsellor from the Parenting Orders Program engaged with the child.  The children’s Contact Service withdrew due to child refusal.  The letter records that the Contact Service was contacted by the father in May 2016 as the child had requested that she would like to see the mother for Mother’s Day. The Parenting Orders Program then offered support for the child if required.  It is noted that the May visit occurred and subsequent visits in July, August, September, October and November 2016 occurred.  The letter records that visits will continue on a request basis from the child through the father.

7. Annexure PAM 1 to the father’s affidavit filed 13 April 2017 is a letter from F Contact Centre addressed to the father setting out the schedule of visits which have taken place at the Contact Centre in 2015, 2016 and 2017.  These record that the mother did not pursue time in April, May, June 2015 and that one visit was cancelled in March 2015 due to the mother being inappropriate.  The letter records that in October 2015, a counsellor from the Parenting Orders Program engaged in counselling with the child due to anxiety and that following this, the children’s contact service in consultation with the Parenting Orders Program withdrew service due to child refusal.

8. Annexure PAM 2 to the father’s affidavit filed 13 April 2017 is a letter dated 3 April 2017 addressed to the mother from the Contact Service bringing to her attention that during her supervised time with the child on 25 March 2017 the worker needed to redirect her conversation to the child on numerous occasions throughout the visit as these conversations were deemed inappropriate.  The letter also refers to the mother denigrating the Service to another parent utilising the Service and refers the mother to the Contact Service Agreement.  The letter concludes that breaches of the Service Agreement are taken very seriously and that the Service therefore notifies the mother that it will be withdrawn forthwith.

9. The mother complained in her Contravention Application that the counselling sessions were ordered monthly and that the father had not provided the child for counselling since October 2015. Order 3 of the orders made 11 June 2016 did not specify monthly counselling and as outlined earlier requires the father to ensure that the child attends upon Dr J or her nominee for such therapy or counselling support as may be recommended by Dr J.  

10. During submissions, when asked whether she had read about the reduction in counselling for the child referred to in the father’s affidavit material, the mother essentially responded that “the Court orders are the Court orders”.  She was not prepared to read or take into account the evidence of the father at paragraph 9 of his affidavit filed 29 November 2016 that he was maintaining counselling for the child with Dr J but that the sessions have been reduced due to the child’s “improved wellbeing” and that her next session was arranged for “late January 2016 [sic]”.  During submissions, the father confirmed that the child was still being counselled by Dr J and that her next appointment was in August 2017. 

11. The evidence in support of the mother’s application and the father’s response is untested and I cannot make any findings.  The mother has not been declared vexatious but the restraining order was made with a focus on affording the child some respite from the litigation.  The restraint upon the mother only applies until 1 July 2017 but on the basis of the evidence filed by the mother and the correspondence from the Contact Service, I am not satisfied that the mother has an arguable case for the filing of the draft contravention application or an application to vary the parenting orders.

1. The untested evidence in support of the mother’s application to vary the orders would appear to refer to many of the same issues litigated before Johns J.  The material from the Contact Service reflects continuing issues about the mother’s conduct, which was the same subject of the trial.  The Contact Service have now withdrawn their services.

2. There is no evidence before me which persuades me that it is in the best interests of the child for leave to be granted to the mother to file a contravention application or an application to vary parenting orders. The order restraining the mother until 1 July 2017 from making any application in respect of the child under Part VII of the Act made by Johns J was made after a four day trial and should continue to apply.

3. I propose to refuse the mother’s application for leave to file a contravention application and an application to vary final parenting orders and accordingly the mother’s Application in a Case filed 3 November 2016 will be dismissed.  The final orders made by Johns J on 11 June 2015 continue to apply and remain in effect.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 26 May 2017.

Associate:

Date:  26 May 2017