Berney and Berney

[2013] FamCA 146

FAMILY COURT OF AUSTRALIA

BERNEY & BERNEY [2013] FamCA 146

FAMILY LAW – CONTRAVENTION – Where the mother is unable to establish a prima facie case in relation to the alleged contraventions – Contravention application dismissed – Where the mother seeks to vary existing orders – Power to vary orders in circumstances where a contravention application is dismissed falls under s 70NBA(b)(i) of the Family Law Act 1975 (Cth) – Where substantial rehearing is not appropriate – Where certain aspects of the existing orders with respect to information to be provided to the mother were raised in the contravention application – Where it is appropriate to amend existing orders – Orders amended by consent.

Family Law Act 1975 (Cth) s 70NBA(b)(i)

Rice v Asplund (1979) FLC 90-725

APPLICANT: Ms Berney

RESPONDENT: Mr Berney

FILE NUMBER: SYC 2998 of 2007

DATE DELIVERED: 7 March 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 4 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE RESPONDENT: Prichard Lawyers

Orders

IT IS ORDERED

1. That the Contravention Application filed by the mother on 2 November 2012 be dismissed.

IT IS ORDERED BY CONSENT

1. That paragraphs 9(c) and 9(d) of the orders made on 13 July 2012 are deleted and replaced by the following paragraphs:

   9(c)       That the father or paternal grandparents to advise the mother of:

   (i)any changes to the names and addresses of the father’s treating medical practitioners, currently Dr A and Dr B;

   (ii)the names and addresses of any medical practitioners who replace Dr A or Dr B or any medical practitioners to whom the father is referred for treatment or from whom he seeks treatment;

   (iii)any hospital admissions of the father including the name of the hospital, the reason for the admission and the date of discharge from hospital within 48 hours of the event occurring.

   9(d)That the father and/or paternal grandparents to take all steps necessary to obtain from and provide to the mother once every three months a report from Dr A and Dr B (or such other treating GP and liver specialist) setting out a brief history of the father’s treatment since the last report.

   9(e)That the father and/or the paternal grandparents to obtain from Dr B and provide a copy to the mother a report from him setting out the father’s current treatment and condition within three weeks.

   9(f)That all communication required by these amendments to be by email or in writing.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2998 of 2007

Ms Berney

Applicant

And

Mr Berney

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by Ms Berney (“the mother”) that the Court deal with Mr Berney (“the father”) for contravention of orders made by the Court, after a defended hearing, on 13 July 2012.

2. The parties are the parents of D born in November 2005 (“the child”) and the orders which were made at the conclusion of the hearing dealt with the circumstances in which the child would spend time with his father whilst living in the care of his mother who has sole parental responsibility for him.

3. Relevantly, the time which the father was to spend with the child was conditional upon his complying with the requirements of Order 9 which is set out in full below:

   9.        That the time [the child] spends with the father be conditional upon:

   a)[The child’s] time with the father being supervised at all times by the paternal grandmother … or the paternal grandfather … ;

   b)The father’s following all reasonable directions of the paternal grandparents in relation to the care of [the child];

   c)The father’s continuing to engage in drug and alcohol counselling with [Mr C] of [E] Drug and Alcohol Service, no less frequently than once per month or as recommended by [Mr C];

   d)The father’s continuing to attend appointments with [Dr F], consultant psychiatrist, as recommended by [Dr F];

   e)The father’s providing to [Mr C] and [Dr F] within 14 days of the date of these orders;

   i)a copy of [Dr R’s] expert reports;

   ii)a copy of all material included in all the tender bundle, excluding the financial material produced by Guild Insurance;

   and confirming in writing to the mother’s solicitor that he has done so.

   f)[The child] is to sleep in the home of the paternal grandparents and if it is proposed that they will travel with [the child] then the mother is to be notified 48 hours prior to the commencement of the time with the father where [the child] will be sleeping, such notification to be by email.

4. The orders also contained a notation to the following effect:

   B.       It is noted that in the event the father is unwell and not able to spend time with [the child] as provided for in these orders, the mother is nevertheless willing to make [the child] available to spend time with the paternal grandparents.

5. Both of the paternal grandparents provided undertakings in relation to their roles as supervisor. Those undertakings were drafted by the father’s solicitors and taken literally, require each of the paternal grandparents to be present at all times, together, when the child is spending time with his father. It is the clear intention of the orders that the child’s time with his father is to be supervised by either one of his paternal grandparents and that both are not required to be present at all times. Insofar as the undertakings are interpreted by the grandparents to require both of them to be present at all times I make it clear that the literal reading of the orders and the intention of the orders is that only one of the grandparents needs to be present at any time.

6. The matter first came before the Court in a Duty List on 11 February 2013. The mother appeared and represented herself. The father did not attend. The paternal grandfather attended and advised the Court that the father was ill and unable to attend. The matter was listed for hearing on 4 March 2013 and the paternal grandfather was asked to convey to the father the fact that the application would be dealt with on that day whether or not he appeared.

7. The Contravention Application deals with three distinct aspects of the father’s failure to comply with orders.

8. The first count of contravention deals with a failure to pay an amount of money which was ordered to be paid to the mother. It was common ground by the time the matter came on for hearing that the money had been paid and therefore the mother did not proceed with the first count.

9. Contraventions 2, 3 and 4 relate to the father’s failure to attend at times when the child was either collected at the commencement of time with his father or returned to his mother.

10. On 4 March 2013, the father was represented by Mr Boyd, solicitor, of Prichard Lawyers. Mr Boyd advised the Court that the father continued to be ill and unable to attend but that he was instructed that the matter should proceed.

11. In relation to contraventions 2, 3 and 4, the mother relied upon paragraph 8 of the orders of 13 July 2012 which read:

    For the purpose of implementing these orders the father shall collect [the child] at the commencement of time and return [the child] to the mother’s residence at the conclusion of each period.

12. It was the evidence of the mother that on 21 July 2012 the father did not attend either to collect the child or to return him and that on 4 August 2012 the father did not attend to return the child. Instead on each of those occasions the child was either collected or returned by his paternal grandmother.

13. The mother was not told by the paternal family that on the relevant occasions the father was ill and that it was pursuant to the provisions of Notation B that th child was being collected by the paternal grandmother. Had they made that clear to the mother no doubt she would not have filed the application in the terms that she did.

14. Mr Boyd filed in Court an affidavit of the father in relation to contraventions 2, 3 and 4. The father gave the explanation that he was unwell on each occasion and unable to make the car journey. That information had not previously been given to the mother. The father relied on Notation B as providing the mechanism for the child’s time to take place when he was ill and unable to attend to the changeovers.

15. The reluctance of the paternal family to provide information to the mother about the father’s health is inexplicable and persisted despite her repeated requests for information.

16. In the circumstances provided in Notation B the mother is unable to establish a prima facie case in relation to contraventions 2, 3 and 4.

17. In relation to contraventions 5 and 6 the mother states: “the father declines to provide evidence that he has continued to engage in drug and alcohol counselling with [Mr C]” (contravention 5) and “the father declines to provide evidence that he has continued to attend appointments with [Dr F]”.

18. Once again the mother has provided affidavit evidence of her attempts to obtain information from the paternal family to satisfy the conditions which are contained in Order 9 made on 13 July 2012.

19. I am satisfied that the mother has made every effort she can to obtain information that would allow her to be satisfied that the conditions have been complied with and that the father has refused to provide that information.

20. The mother in the face of his refusal has, in accordance with the orders, declined to provide the child for overnight time. In the event that the father wishes to exercise his right to spend overnight time with the child then he is required to provide to the mother evidence that he has complied with the conditions which were imposed.

21. It is submitted by Mr Boyd on behalf of the father that his failure to provide that evidence is not strictly a contravention of the order. In the alternate the father seeks to explain his failure to provide the information requested by the mother as arising from his own interpretation of the form of the orders. Further he annexes to his affidavit a letter from his then solicitors. In the letter the mother is told “we confirm that there is no order stating that our client must provide you with evidence that he has continued to engage in drug and alcohol counselling and continued attending his doctor’s appointments.”

22. It is the father’s case that, in the event the Court finds he has contravened Order 9, he has a reasonable excuse for doing so in that his solicitor advised him that he was not required to do that which the mother requested.

23. The strict terms of Order 9 do not require the father to provide the information requested by the mother. Rather the consequence of his not providing that information is that she is entitled to withhold the child from overnight time.

24. The mother has not established a prima facie case in relation to contraventions 5 and 6.

25. The mother filed in Court a Minute of Orders in which she sought a variation of the existing parenting orders. Since the mother has failed to establish a prima facie case in relation to any of the contraventions alleged, the power for the Court to vary the existing orders is found in section 70NBA(b)(i).

26. The Minute of Orders filed by the mother seeks a wide ranging variation of the orders which were made on 13 July 2012 including, for example, a suspension of weekend time and significant variations in relation to the timetable for the child’s spending time with the paternal family.

27. I do not propose to embark upon a substantial hearing in relation to the mother’s application to vary the orders of 13 July 2012. Those orders were made at the end of a five day hearing and in order for the Court to be convinced that it would be appropriate to vary them in the way that the mother suggests there would need to be firstly, a determination that there had been a sufficient change in circumstances to overcome the prohibitions in Rice v Asplund (1979) FLC 90-725 and secondly, a substantive hearing on the merits of the mother’s application with evidence filed by the father and cross-examination.

28. However, some aspects of the variation sought by the mother are appropriate and arise from the matters which are the subject of, and gave rise to, the contravention. It is appropriate to vary the orders in relation to those matters.

29. The solicitors now acting for the father, sensibly, conducted the proceedings on the basis that the orders in relation to the existing paragraph 9(c) and 9(d) should be varied.

30. When the mother appeared before the Court on the return of her application on 11 February 2013 she was, for the very first time, given some information about the father’s medical condition in the form of a letter from Dr F, the father’s consultant psychiatrist, dated 23 January 2013. In that letter Dr F confirmed that he would discontinue his treatment of the father because the father was engaging in ongoing treatment with Dr A, a general practitioner and Dr B, a liver specialist. In that letter, for the first time, it was disclosed to the mother that the father suffers from cirrhosis of the liver. Dr F expressed the opinion that the assistance of Dr A and Dr B was adequate for the father’s needs and that there was therefore no requirement for him to continue to see Dr F in Sydney.

31. Why that information could not have been given to the mother at an earlier time is unexplained.

32. At the close of submissions the mother and the solicitor for the father took the opportunity to discuss the variation of the orders, insofar as they related to the mother’s being kept advised of the father’s medical condition and treatment plan and were able to agree upon a variation. Those orders are made by consent and provide a framework for the paternal family to keep the mother advised of the father’s treating doctors, his hospital admissions and his general medical treatment. Particularly, the orders require the father to provide to the mother, once every three months, a report from Dr A and from Dr B (or any general practitioner or specialist who replaces either of those doctors) setting out a brief history of the father’s treatment since the last report.

33. The orders also require the father to provide to the mother, within three weeks, a report from Dr B setting out his current treatment and medical condition. Once the father has complied with those orders and the mother is in a position to know that the preconditions for the father’s spending overnight time with the child have been met, she will resume the child’s time with the paternal family in accordance with the existing orders.

34. It is unfortunate that the attitude of the paternal family has been such as to require the mother to bring before the Court the application for contravention. Even though the application is unsuccessful, its resolution might provide for the child’s relationship with his paternal family to continue as was intended in the orders of 13 July 2012.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 March 2013.

Associate: 

Date:  7 March 2013