BISSET & BISSET

[2017] FCCA 397

FEDERAL CIRCUIT COURT OF AUSTRALIA

BISSET & BISSET [2017] FCCA 397

Catchwords:
FAMILY LAW – Contravention of parenting orders – no reasonable excuse established.

Legislation:

Family Law Act 1975, ss.70 NAC, 70NAE, 70NAF, 70NEC

Applicant: MR BISSET

Respondent: MS BISSET

File Number: PAC 4267 of 2011

Judgment of: Judge Newbrun

Hearing date: 20 December 2016

Date of Last Submission: 20 December 2016

Delivered at: Parramatta

Delivered on: 18 August 2017

REPRESENTATION

Solicitors for the Applicant: Self-Represented

Solicitors for the Respondent: Self-Represented

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4267 of 2011

MR BISSET

Applicant

And

MS BISSET

Respondent

REASONS FOR JUDGMENT

Introduction and background

1. On 22 November and 20 December 2016 the court heard the father’s Application Contravention filed 27 July 2016. The mother appeared at court, legally unrepresented, to defend those proceedings. The father’s supporting affidavit was filed 13 May 2016.

2. On 20 July 2015, the court had made final parenting orders in accordance with consent orders that the parties had reached that day. On that day, the father acted for himself, the mother appeared with her solicitor, and Mr Naidovski appeared as the Independent Children’s Lawyer.

3. Those final consent orders provided, inter alia:

   “4. That the father shall spend time with (the child) [X] as follows:

   B) At the conclusion of Order 4a, from 10 AM to 4 PM each alternate Saturday and Sunday

   C) On the Easter long weekend, if [X] is otherwise not in the care of the father, from 10AM to 4PM on Easter Saturday and Easter Sunday

   D) During the Christmas period, if [X] is otherwise not in the care of the father, from 10AM to 4PM on 26 December and 27 December 2015

   8. That the father shall communicate with [X] by telephone each Monday, Wednesday and Friday between 7PM and 7:30PM and for this purpose the father shall contact [phone number omitted] and the mother shall facilitate such communication by making sure the phone is switched on, fully charged and available at time that the father is to communicate with [X].”

4. The father’s Application Contravention filed 27 July 2016 alleged 4 contraventions of the above orders of 20 July 2015 being:

   4b) On 16 January 2016 (Saturday) at 10 AM, at (omitted), the respondent mother, without reasonable excuse, did not attend the agreed changeover location and refused to allow the applicant father to spend time with the child;

   4c) On 26 March 2016 and 27 March 2016 (being the Easter period), at McDonald’s, (omitted), the respondent mother without reasonable excuse, did not attend the agreed changeover location and refused to allow the applicant father to spend time of the child;

   4d) On 26 December 2015 and 27 December 2015, at McDonald’s, (omitted), the respondent mother without reasonable excuse, did not attend the agreed changeover location and refused to allow the applicant father to spend time of the child;

   8) On 23 November 2015 and ongoing, the respondent mother without reasonable excuse did not facilitate telephone to communication between the father and the child each Monday, Wednesday and Friday from 23 November 2015 to the present date.”

5. The Court, having found that the father had made out a prima facie case for the four alleged contraventions set out in his Contravention Application, the mother, having been formally read the alleged contraventions, pleaded that, while she admitted the contraventions, she asserted that she had reasonable excuse for committing the contraventions.

6. The mother did not cross-examine the father.

7. Initially, the mother told the court that she was not prepared to enter the witness box and be cross-examined by the father. There was a short adjournment whilst the mother obtained legal advice from the duty solicitor. Then the mother gave oral evidence in chief, in support of her previous pleas that she had reasonable excuse for breaching the previous orders of the court.

8. In evidence in chief, the mother stated, inter alia, in relation to contravention 4b (breach of the courts orders on 16 January 2016), that in fact she had ceased to facilitate the child spending time with the father in December 2015. She stated that she had been receiving continual verbal threats on the telephone from the father which she found intimidating. The phone calls did not stop. The father had threatened not to return the child to the mother. He had threatened that bikies would come to the mother’s home. The mother stated that she had copies of text messages sent from the father to her in this context. The mother referred to being abused by the father at Hungry Jack’s prior to 16 January 2016.

9. The mother states she then spoke with her former solicitors, in particular Ms Coady, and the Independent Children’s Lawyer, relating the above conduct of the father, who had told her to stop the father’s visitation with the child.

10. In relation to contravention 4c (breach of the courts orders at Easter 2016), the mother stated, in evidence in chief, inter alia, that she had received no threats from the father between 16 January 2016 and Easter 2016 because she had turned her telephone off. Again, the mother stated that she had relied upon her earlier advice from her former solicitor, the Independent Children’s Lawyer, and also from the Women’s Service, to stop the father’s visitations with the child.

11. In relation to contravention 4d (breach of the courts orders on 26 and 27 December 2015), the mother referred to her above evidence. Further, having stated that the child’s last time spent with the father was on 19 December 2015, she referred to the father having told her, at about this time, “you are a bad mother, and I’m not bringing the child back. You are evil, and your family is bad.”

12. In relation to contravention 8 (breach of the courts orders relating to the mother facilitating telephone communication from 23 November 2015), the mother confirmed that she had turned her telephone off, so that she did not receive what she anticipated would be the father’s previous abusive and threatening telephone calls.

13. In evidence in chief, the mother stated that in the first half of 2016, she had become sick and had had surgery. The surgery was carried out on 16 May 2016.

14. Further, the mother stated that Relationships Australia, having been informed of the conflict that had been occurring between the parties (the mother stated that she had seen her counsellor at Relationships Australia at times when the father was due to visit the child) had been unwilling to facilitate changeovers pursuant to the past orders of the court made 20 July 2015, and the mother was not prepared to conduct changeovers at McDonald’s, (omitted), also pursuant to those past orders of the court, because she didn’t feel safe.

15. (The court interpolates here that the orders of 20 July 2015 provided in order 6 that the parties, for the purposes of changeover, would use the supervised changeover services of Relationships Australia, but in circumstances where that service was unavailable to facilitate changeover on a specific date, changeovers would occur at McDonald’s, (omitted))

16. The court asked the mother, in evidence in chief, why she did not seek to return to the court in circumstances where she was not facilitating the previous orders of the court that the child spend time with the father. The mother stated that her former solicitor, Ms Coady had told her that if she felt intimidated by the father, then she should just cancel the father’s visitation with the child.

17. The mother stated, in evidence in chief, that in relation to the previous orders of the court, specifically order 8 relating to the father having telephone communication with the child, that previously, when she did facilitate such telephone communication, the father was always yelling and abusing her over the telephone. The mother thereafter did not want to deal with him.

18. The father cross-examined the mother about his last telephone conversation with the child at a time when the child had hurt his finger. The father put to the mother that he had asked her to take the telephone call off loudspeaker. The mother stated that the father had continued to ask him inappropriate questions.

19. The father cross-examined the mother in relation to her statements that he had sent threatening text messages to her, in particular in relation to her statement that the father had threatened in late November 2015 to send bikies to her home. The mother stated that she had downloaded the father’s threatening text messages onto a USB stick.

20. At about this point in the mother’s cross examination evidence, the court clarified with the mother whether, she not having brought to the court copies of any alleged threatening text messages retained on her USB stick, she wanted an opportunity, by way of a short adjournment, to make copies of such alleged text messages with a view to relying upon them in her defences of reasonable excuse to the father’s Contravention Application. The mother stated she did wish to have such an opportunity. The father opposed such an adjournment and the court heard the father’s submissions in this context. The court proceeded, so as to afford procedural fairness to the mother, to make directions for the mother to file and serve material relating to the alleged text messages and the proceedings were adjourned to 20 December 2016.

21. On the 20 December 2016, the Contravention Application hearing resumed.

22. The mother tendered a series of copy text messages passed between the parties, Exhibit 1. They are variously dated (with no years stated):

    ·    7 October

    ·    2 December

    ·    3 December

    ·    7 December

    ·    9 December

    ·    23 February

    ·    27 February

    ·    3 March

23. In a text message from the mother to the father dated 7 October, it is stated,

    Who do you think you are, you gave up custody, you don’t have the right to tell me what to do with my life or [X]’s, I have raised him not you and always will, you’re just a one day thing, so leave me alone!

    The father then sends a response to the mother stating, “just be true to him and don’t be a cocky bitch coz in a few years he will be living with me …so enjoy your time while you can.”

24. There is a text message from the father to the mother, which appears to be the last of a series of text messages, stating, “don’t fuck me and my son around.” (The court interpolates here that this text message should not reasonably be construed as a threat from the father to the mother, not only by reason of its actual terms, but also noting that the immediately preceding text messages are not clearly revealed).

25. By contrast, in another text message from the father to the mother he states, “It’s like you’re pushing me to take him… If I wanted to I would have.. long ago.”

26. There are text messages from the father to the mother which are conciliatory, imploring the mother to get along with him for the child’s sake. One text message from the father to the mother on 3 March apologises to the mother and states that he has been silly towards parenting. He tells her that he has come to the decision to attend court and withdraw his application. He states that he is an “awesome dad”, he may be “a prick of a man”, but the child loves him.

27. There is a text message on 7 December from the mother to the father stating, “I’ve been told no more visits, I already explained it to (the child)”...

28. In other text messages from the father to the mother it is stated,

    You make me say and write silly hurtful things.. Keeping him from me makes me want to just disappear with him… I would love to, but as I am a good dad and understanding parent, I couldn’t do it…I would never do it [Ms Bisset]…This crap has got to stop. Don’t make me do something stupid just to see him….

29. In other text messages from the father to the mother, in circumstances where it would appear the mother was not facilitating telephone time between the child and the father, the father texted the mother stating that she was evil and purely selfish and not a good mother.

30. The mother tendered letters from Relationships Australia, NSW, dated 3 December 2015, 6 October 2016; and 2 letters from Family Relationship Centre, (omitted), dated 5 and 7 April 2016 (enclosing a section 60 I certificate dated 7 April 2016).

31. The letters from Relationships Australia refer to their changeover service being discontinued as the father was sighted by a staff member within the 500m exclusion zone at a changeover on 7 November 2015. Relationships Australia recommended to the mother in one letter that she contact her “legal services” for their advice about how she might best proceed with the child’s contact arrangements. In another letter, Relationships Australia refers to, inter alia, inappropriate parenting of the child (without naming the particular parent) presenting risk to the child’s emotional and developmental stability and possibly his physical safety with the current orders being continued. It states that, “For more detailed information, subpoenaed documents can of course be served on the Service.”

32. In the letters from the Family Relationship Centre, the mother is informed by the Centre that her case has been assessed as inappropriate for Family Dispute Resolution.

33. The father tendered a handwritten letter from his partner, essentially referring to the close relationship that the child and the father have together. He also relied upon a letter from a friend dated 26 July 2016 which also refers to the close relationship between the child and the father.

Submissions

1. The mother submitted, inter alia, that she took some of the father’s text message communications to her as threats, for example, the last text message, in a series of text messages, when the father had stated that the mother should not “fuck” himself and the child around. The mother submitted that one of the text messages contained a threat from the father that he would take the child from her.

2. The father submitted, in relation to the text messages, that they contained no evidence of relevant threats made to the mother, although many of the text messages suggested the father was angry, in circumstances of not spending time with the child. He submitted that there were no relevant threats from himself to the mother to justify her failure to facilitate time between the child and himself for 10 months (being the period from about late November 2015 to 10 October 2016, when further interim parenting orders were made by the court).

3. The mother submitted that she relied on statements made to her by her former solicitor to no longer facilitate time between the child and the father. The father submitted in response that the mother’s former solicitor would be unlikely to say anything to encourage the mother to breach court orders.

Legal principles in relation to the mother’s plea of reasonable excuse for committing the father’s pleaded contraventions

Section 70 NAC of the Family Law Act (the Act) provides:

Meaning of contravened an order

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

(a)  where the person is bound by the order--he or she has:

(i)  intentionally failed to comply with the order; or

(ii)  made no reasonable attempt to comply with the order; or

(b)  otherwise--he or she has:

(i)  intentionally prevented compliance with the order by a person who is bound by it; or

(ii)  aided or abetted a contravention of the order by a person who is bound by it.

1. Section 70 NAE of the Act provides, relevantly, in relation to the mother’s admissions of contravention of previous orders of the court, as pleaded by the father, as follows:

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

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

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

   (6) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:

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

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

2. Section 70NAF of the Act provides that the standard of proof is on the balance of probabilities in respect to, inter alia, the determination of whether a person has a reasonable excuse for contravening an order of the court.

Discussion and Conclusion

1. The court is required to consider, by reference to the mother’s pleas of reasonable excuse for committing the pleaded contraventions, and the associated relevant statutory provision being section 70 NAE (5) and (6), whether the mother believed on reasonable grounds that the contraventions were necessary to protect the health or safety of a person, and that the contraventions were for no longer than was necessary to protect the health or safety of the person; that person can include the mother or the child.

2. The court does not accept that the father made any relevant threats to the mother prior to the contraventions such that the mother believed on reasonable grounds that not allowing the child and the father to spend time together, or communicate by telephone together, was necessary to protect the health or safety of either the mother or the child.

3. There are no text messages in Exhibit 1, relating to any alleged threats by the father to the mother to send bikies around to her home; the court does not accept the father made any relevant threats to the mother in this context.

4. As to the mother’s suggestion in her evidence that the father had threatened to retain the child from the mother’s primary care and not return him to her, the court is not satisfied that the father ever made such a threat, particularly in the context of the admitted contraventions by the mother. The text message from the father to the mother, in response to the mother’s text message of 7 October, containing the statement from the father to the mother that, “in a few years he will be living with me… so enjoy your time while you can”, in the view of the court, should not be construed as a threat by the father to imminently retain the child from the mother in the context of the admitted contraventions by the mother; it likely refers to prospective legal proceedings by the father, if anything.

5. Further, contrary to the mother’s suggestion that the text messages in Exhibit 1 evidenced relevant threats from the father to her, a significant theme in the text messages in Exhibit 1 appears to be the father’s expression of frustration to the mother that she is not facilitating the child spending time with the father. Further, certain text messages from the father to the mother clearly indicate, despite the father’s apparent frustration in not been able to spend time with the child, that in fact he would not proceed to remove the child from the mother’s care and not return the child to the mother.

1. Indeed, the mother’s evidence that on or about 19 December 2015, the father threatened not to return the child back to the mother runs contrary to the reality that the child must have been returned by the father to the mother at about this time, or shortly thereafter, because the mother admitted the contravention of the court’s previous orders relating to not making the child available to spend time with the father on 26 and 27 December 2015.

2. The court notes the mother’s evidence that she was advised by her former solicitor, Ms Coady, Relationships Australia, and the Women’s Service, to stop facilitating the child’s time with the father in circumstances where the mother alleges that she was being threatened by the father. There is a text message in Exhibit 1 that the mother had been told “no more visits” which might suggest that a third party gave some advice to the mother, however it is clearly a very limited piece of evidence without detail. The mother chose not to obtain any affidavit evidence from her former solicitor, Relationships Australia, or the Women’s Service, indicating that they had given advice to the mother not to facilitate the child spending time with the father, in circumstances where the mother was alleging threatening behaviour by the father towards her. Further, the mother chose not to issue subpoenas to attend and give evidence to any of these third persons. The court does not accept that the mother’s former solicitor, any person from Relationships Australia or the Women’s Service, gave the mother advice that she should cease to facilitate the child spending time with the father.

3. In this context, the court should state that it is difficult to accept that the mother’s former solicitor, or indeed any officer from these organisations, would give such advice to the mother and fail to advise her that she should either seek permission from the court to not facilitate the child spending time with the father in the mother’s claimed circumstances of threatening behaviour by the father.  Or that they would fail to advise the mother, she having decided not to facilitate the children spending time with the father, to approach the court and seek to vary the past orders of the court providing for the child to spend time with the father.

4. Finally, even if the court is incorrect in its finding that such third persons did not give the mother such advice as claimed by the mother, and they did in fact give such advice to her, the giving of such advice would not amount to “a reasonable excuse for contravening a parenting order” as set out in section 70 NAE(5) or (6); such advice on its own would not establish that the mother believed on reasonable grounds that not allowing the child and the father to spend time together “was necessary to protect the health or safety of” the mother or the child. Again, the court does not accept that the father relevantly threatened the mother in the manners alleged by her.

5. The mother’s faint suggestion in her evidence that her sickness and related surgery in the first half of 2016 might have justified her in committing the admitted contraventions of the court’s previous orders is not accepted by the court. There is no medical evidence before the court tendered by the mother in this context, and the mother’s oral evidence in this respect failed to persuasively link the mother’s sickness and surgery with her allegations made against the father of threatening and other conduct.

6. The court should state that in relation to the admitted contravention from 23 November 2015 and ongoing, relating to the mother’s failure to facilitate telephone communication between the child and the father, the mother’s admission in evidence that between 16 January 2016 and Easter 2016, specifically 26 and 27 March 2016, a period of over 2 months, she had received no threats from the father because she had turned her telephone off, of itself suggests the mother had no belief on reasonable grounds, at least during this period, that it was necessary to protect the health or safety of herself or the child to not facilitate the child having telephone communication with the father. In any event, even if she did have such reasonable grounds, which the court does not accept, the period of some 2 months was indeed, in the view of the court, “longer than was necessary to protect the health or safety” of the mother or the child.

7. Accordingly, the court is of the view that the mother has proven no reasonable excuse for her admitted contraventions of the previous orders of the Court, and the Court will now proceed to the penalty phase of the Contravention hearing and hear submissions from the parties.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 18 August 2017