Brandella and Brandella (No. 3)

[2008] FamCA 803

FAMILY COURT OF AUSTRALIA

BRANDELLA & BRANDELLA (NO. 3) [2008] FamCA 803

FAMILY LAW – ORDERS - Contravention

Family Law Act 1975 (Cth)

APPLICANT: Mr Brandella

RESPONDENT: Ms Brandella

FILE NUMBER: MLC 10215 of 2007

DATE DELIVERED: 24 September 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Watts J

HEARING DATE: 22 September 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: Litigant in person

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. The Court warns the Mother that any further proven contravention of these orders may be dealt with under a part of the Family Law Act that allows the Court to impose amongst other things a fine, a community service order or a sentence of imprisonment.

2. For the next six weeks W and D spend from 6.00 pm Friday to 5.00 pm Sunday with their father.

3. The children W born …April 2002 and D born … January 2004 shall be independently represented, and the Legal Aid Commission of Victoria is requested to arrange such representation.

4. I direct that the parties attend a post-separation parenting program.  The Director of Child Dispute Services is requested to assist the parties in accessing a program in the event that they have not already been able to do so.

5. The orders made on 14 April 2008, pending further order, be varied as follows

   a)Delete Order 3(a)(i) and insert “3(a)(i) In the first seven days from 5.00 pm Friday to 5.00 pm each Sunday;

   b)Delete order 3(a)(ii);

   c)Delete the place name “[R]” in order 7 and insert the word “[S]”;

   d)Delete Order 9 and insert “9.  That the Father not leave the children whilst they are in his care unless he has made arrangements for a responsible adult carer to supervise the children whilst he is away and to ensure that that carer understands the Mother’s concerns particularly in relation to [J Brandella] so that that adult carer can be vigilant in terms of [J’s] interaction with [W] and [D].”

6. The Mother’s application for variation of parenting orders is adjourned to be listed before Bennett J on the next occasion the matter comes before her or any earlier time that the Docket Registrar in his or her discretion believes is appropriate.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10215 of 2007

MR BRANDELLA

Applicant

And

MS BRANDELLA

Respondent

REASONS FOR JUDGMENT

1. Consent orders were made on 14 April 2008 for W born in April 2002, age 6 and D born in January 2004, age 4, to amongst other things, see their father on a fortnightly cycle from after school Thursday to 5.00 pm Sunday in the first week and from after school Thursday to Friday morning in the second week.

2. The Father filed an application for contravention on 28 August 2008.  The application alleged 11 breaches of the Court orders.  One of them was an alleged breach of the order by the Mother on 31 January 2008.  The Father did not proceed with that count.

3. The Mother also had filed an application in a case on 15 September 2008, returnable before me seeking a variation of the current final parenting orders, so that the children spent time with their Father each alternate weekends from 9.00 am Saturdays to 5.00 pm Sunday’s until final orders are made.  The Mother on 18 July 2008 filed an amended application for final orders seeking a variation of the parenting orders made by consent on 14 April 2008.  The Mother in that context is also seeking the appointment of an Independent Children’s Lawyer, and the Father has indicated he has no objection to that order being made.

4. In relation to the remaining contraventions alleged by the Father against the Mother, the Mother conceded that she had taken a conscious decision to withhold the children from the Father from 17 to 20 July 2008, from 14 to 16 August 2008 and on 21 August 2008.

5. In respect of those other occasions the Mother had either put in issue that the assertion by the Father that the children had not gone (17 and 20 April and 24 April) or had indicated that there was an agreement because the children were sick for them not to have to go (5 to 8 June 2008) or that there were circumstances surrounding the Mother’s hospitalisation in connection with the birth of her new baby in July 2008 (now six weeks old) that led to her denying there was a breach.  The Father did not concede those matters, but at my invitation chose to proceed only in relation of those three occasions that that the Mother conceded that she had consciously withheld the children from the Father.  The Mother asserted that she had a reasonable excuse for doing so. 

6. The Mother was charged with contravening the Orders of 14 April 2008 by not making the children available on:

   e)The 17 to 20 July 2008;

   f)The 14 to 16 August 2008;

   g)The 21 August 2008.

7. The Mother pleaded not guilty in relation to each of those alleged contraventions.

8. The Mother conceded that on each of these three occasions she had taken a conscious decision not to make the children available for them to have time with their Father.

9. The Mother does not assert that she did not understand the obligations imposed upon her by the orders of 14 April 2008.  She made it clear that she did understand those obligations.

10. The Mother relied upon and during the proceedings read out to me the wording of s 70NAE(4) Family Law Act which is in the following terms:

    a person 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 live with in a way that resulted in the child not living with the parent in who’s favour the order was made if:

    (a)    The respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child);

    (b)    The period which, because of the contravention, the child did not live with the person in whose favour the order was made was no longer than was necessary to protect the health and safety of the person referred to in paragraph (a).

    The Mother is required to establish her reasonable excuse on the balance of probabilities.

11. The Mother relied upon four affidavits:

    11.1Affidavit by herself sworn on 10 September 2008;

    11.2An affidavit which was prepared for a court date on 22 July 2008 (which I marked exhibit C).  Exhibit C is not sworn but the Mother verified it in the witness box.

    11.3An affidavit of the Mother’s father sworn 11 September 2008; and

    11.4An affidavit of Mr TB sworn 10 September 2008.

12. The most recent affidavit of the Mother complains that in her view the children were not being supervised or are at risk due to non-compliance by the Father with another part of the Court orders of 14 April 2008.

13. Final Orders of Bennett J of 14 April 2008 (which are consent orders but as I understand were orders made after there had been assessments done by certain professionals) are annexed to the Father’s application for contravention.

14. Apart from the orders granting the children time with their father (order 3), which the Mother agrees she has contravened on the three occasions I am dealing with, there are the following orders:

    8.The Father be in substantial attendance with the children during all times the children live with him.

    9.That the Father not leave the children in the care of any other person unless:

    (a) that person be a responsible adult carer;

    (b)the Father take responsible steps to notify the Mother of the name and address of the responsible adult carer and the location of the children.

    10.Without limiting the operation of the provisions of paragraph 8 and 9 hereof, the Father ensure that neither of the children are left in the care of the company of [J Brandella] without a responsible adult being present.

BACKGROUND TO THE CONTRAVENTIONS

1. The substance of the Mother’s assertion that she had a reasonable excuse is an allegation that she has received information that the children were left unsupervised without a responsible adult carer and that they are left in the company of their ten year old step-brother J who is a current member of the Father’s household.  The Mother makes the allegation that J continues to bully and physically hurt the children and that that is unacceptable.  The Mother gives evidence that on Friday 23 May 2008 the children have spent a day with Ms F, someone the Mother claims was a fiancée of the Father.  At the conclusion of that time the Mother says that W informed her that daddy was gone to work for the whole day and that W was upset because W had asked Ms F on several occasions if he could ring his mother and was told that he was not allowed.  W also reported to his mother, according to the Mother, that when daddy did come home his father would not let W call his mother saying to W “this is my time now.”  The Mother says that when she tried to ring a landline or mobile phone number during the period of this weekend, she was unable to make contact.  The Mother claimed that W told her that the Father and Ms F had hid the house phones.

2. The Mother gives evidence that W reported her on 29 May 2008 that J had locked him in the bathroom at his father’s house and that J had told him “your mother is crazy like mine” and “dad can make her go away forever like mine…he can make her dead to.”  The Mother said that he was very upset when he told her that and he said he did not like going to dad’s anymore.  The Mother alleges that she reassured W that everything would be “ok” and that it was safe and for him not to worry.  The Mother asserts that she attempted to discuss these issues but the Father did not respond.  The Mother questioned W about where the grown ups were during this time and W reported to her that they were “eating dinner”.  W said that J followed him into the bathroom and was waiting for him when he came out of the toilet.

3. That last piece of evidence was relevant to the conviction that the Mother has that J has been involved in sexual activity, particularly with W.

4. The allegation made by the Mother is the first occasion in respect to which the Mother became fearful of sexual activity between J and W was in 2005 when J was seven and W was two.  The Mother says that she came upon them in a bathtub together, they both had erections and J was involved in an action which the Mother interpreted as sexual interference.  The Mother asserted that at the commencement of January 2008 W reported to her that J touched him on the penis on a regular basis.  Notwithstanding those concerns (which I infer, from what both parties have said, were the subject of some expert exploration prior to the consent orders of 14 April 2008 being made) the Mother consented to the orders of 14 April 2008 in the terms expressed above.

5. The Mother asserts that in recent times W has alleged that the Father makes J and W shower together and that J still touches W’s penis but not as much as before.  The Father denies that that is true.

6. The Mother says that if the Father is there and supervising at all times then her fears of any untoward activity of a sexual nature between J and W would abate.  It is her conviction that the Father is not complying, in particularly with order 10 made on 14 April 2008 that leads to the fears that she has. 

7. A less serious matter but feeding into the Mother’s concern, is the conviction that D had carpet burns on his back as a result of J dragging him across the carpet.  The Mother took photographs of those marks and she has exhibited those photographs to her affidavit.  I am unable to say whether or not those are photographs which would indicate carpet burns.  The Mother observed the marks and gives evidence that that is what they are.  On balance and for the purposes of this application I am prepared to accept that that is so, that however does not prove inadequate supervision of J.

8. The Mother says that on 26 June 2008 she told both boys that there Father was going to pick them up and both boys started crying.  She said W was most affected to the point he started vomiting.  She asserts that W said to her “mummy you promised that daddy wouldn’t leave us and [J] wouldn’t hurt me anymore…did you tell a lie mum?”  She says they were all in tears at that stage.  The Mother in her affidavit sworn on 10 September 2008 states “I stand by my decision not to send them until this can be sorted.  Every avenue I try to seek help I was referred back to the Family Court.”

9. The Mother seemed very upset at the fact that she believed that the Father had deliberately cancelled the accommodation for herself and the children to have a holiday in the mid-year school holidays without giving any reason and had apparently in circumstances where, according to the Mother, the Father had gone to Mount Lofty for a holiday with his then fiancée.  The Mother conceded that she passed onto the children her distress in respect of this alleged behaviour by the Father. 

FIRST BREACH

1. In her affidavits the Mother does not talk about the weekend of 17 to 20 July 2008 which is the first alleged breach which I need to consider.  The Mother’s primary excuse of course is that the lack of supervision of the Father particularly of J’s behaviour as detailed above.  The Mother, however, gave oral evidence that W was vomiting at the thought of going on this day.  The Mother produced her diary which came into evidence.  The entry on that diary for 17 July 2008 (exhibit A) has the words “* kids *” and below it “vomit” written on it.  The Father asserts that by looking at the diary I can tell that the word vomit has been written at a different time to some of the other writing of the diary.  On the entry for 17 July 208 there are three different pens used but that is not unusual when compared with other entries for other days when multiple pens are used.  I am unable to say that the Mother did not put the word vomit on that page at the time when the incident was occurring or shortly after that time.

2. The Mother has not however, in her affidavit, referred to W vomiting on 17 July 2008.  This is to be contrasted with her evidence in her affidavit that W did vomit on 26 June 2008.  There is an entry in the diary that would indicate W vomiting on 26 June 2008.  I do not, however, place any great weight on that difference.  There is nothing in the way of the diary that was produced or the way it has been written that would indicate to me that it had been fabricated for the purposes of the proceedings before me.

3. Accordingly I find that given W was so upset on this occasion the Mother had a reasonable excuse not to send him.

SECOND AND THIRD ALLEGED BREACH

1. At the time of the birth of the Mother’s new child (July 2008), the Mother entered Albert Road Clinic on 25 July 2008 and stayed in hospital for a week after the birth.  Albert Road Clinic is a psychiatric hospital but the purposes of the Mother’s admission was a precautionary one to guard against post-natal depression as a result of the birth.  The Mother had previously been hospitalised in connection with her mental status, for periods of three weeks and two weeks at a time when the parties were together.  It did not seem disputed between the parties that the Father looked after the children during these periods.  The Father was obviously distressed by the fact that the Mother had not made arrangements during the period of her confinement in July/August 2008 for W and D to have time with him.

2. The Mother gave evidence about a message which the Father sent her on 8 August 2008 at about 10.00 am.  The Mother says in her statement that at the time she received this message from the Father she was “an inpatient of Albert Road Clinic South Melbourne.”  This is roughly consistent with the Mother’s evidence about the period of time that she was at the clinic after the birth of her child.  The Father agreed he sent the message, apart from a relatively minor detail.  It is in belligerent terms.  It refers to the Mother being “in the psycho hospital for weeks.”  It refers to the Mother being “out of control.”  It says “my day will come soon in court, and you will be shown for what you really are, a [sic] irresponsible, moody psychotic woman that will do anything to destroy the relationship between father and child enjoy your day. M”.  The Father said that this was the worst thing he has ever sent to the Mother.  I invited him to apologise.  He declined that opportunity saying that what he said was true.

3. I observed the Father and Mother’s relationship on 22 September 2008.  It is highly dysfunctional.  Neither party should be happy about the way they behave towards the other.

4. The Mother has in my view not on balance established reasonable excuse for the second and third alleged breaches. 

5. The Mother’s father gave evidence.  There is clearly no love lost between he and the Father.  The Mother’s father gave evidence about an incident that took place on Friday 5 September 2008 after a school concert.  The Father attempted to take W from the Mother’s arms.  The Mother’s father says that W was frightened and crying and clinging onto his mother and sustained a bruise when his father attempted to pull him away.  The Mother’s father asserted that he intervened to stop the Father and the father yelled “piss off”.  He says that another father reminded the Father in these proceedings that there were young children present.  Although the Father did not give direct evidence about this incident himself when he had an opportunity to do so by the questions that he put to the Mother’s father in the witness box, I inferred that there was a different version that he would proffer.  The Mother’s father gave inconsistent evidence about his willingness physically take the Father on.

6. It was clear to me that there was a high level of animosity between the Mother’s father and the Father.  I was not comfortable in accepting at face value the Mother’s father’s evidence.  He is not an impartial witness in these proceedings and made some quite derogatory comments gratuitously about the Father’s religious beliefs.

7. The other witness called for by the Mother is a young man by the name of MR TB. Mr TB gave evidence that at changeover on Sunday 17 August 2008 he was present when the Father delivered the children back to the Mother outside R Police Station.  He says he was helping the children put their seatbelts on and he had his back to the Father’s Mercedes, but he heard the Father say “next time they come with me I won’t be returning them”.  Mr TB was tested by the Father on that statement and I accept that that is what he heard the Father say.  Mr TB was unexpectedly rung to give evidence by electronic means and he was able to spontaneously repeat the statement. Mr TB also clearly repeated in oral evidence what he said in his affidavit, that is the Father gave him “the bird” (stuck up his middle finger).  He said that the Father also sped off spinning the wheels of his car.  He observed that the Mother and the children became very upset.

8. The Father gave no evidence about this incident himself and did not, when questioning Mr TB, diminish the credibility of Mr TB’s evidence.

9. Both parties cross-examined each other.  This on occasions led to digressions into matters which obviously concern and are important to the parties but which were not directly relevant to matters that I had to decide.

10. The Father attempted to attack the Mother’s credibility by establishing that she sent emails and other documents on occasions when she had denied that she had sent them.  He also referred to statements made in other proceedings about the Mother’s credibility.   None of this was properly put in evidence before me and I am unable to take any of those matters into account.

1. The Mother made counter allegations that the Father had broken into her house, accessed her computer and had stolen material on her computer.  The police had taken the computer and retained it for six weeks but the Mother said the police had not been able to establish any criminal act committed by the Father.  I am unable to form any opinion as to the accuracy of those peripheral matters.

2. This was not the occasion for a detailed examination of the parties and was not the occasion where there was an opportunity of seeing the parties ask questions over an extended period of time.  I can only make assessments on the credit within the relative confined compass of these proceedings.

3. The Father has denied that since April 2008, J has been left alone with W and D for any significant period.  I do not on balance accept his evidence about that.  I am satisfied that there have been times when he has not been personally present and he therefore is unable to give evidence about what level of supervision W and D have had.  Having said that however, the original orders did envisage that he only be there for substantially all the time and that another adult would be able to supervise if he was not there.

Conclusions in relation to the Mother’s assertion that there was reasonable excuse for her breaking the orders. 

1. I accept that the Mother harbours fears about J being alone with W and E in circumstances where the Mother holds the conviction that there is an unacceptable risk of J having sexually interfered, particularly with W.  I am not, on balance, however able to accept that W has said to the Mother the things about sexual interference since April 2004, which the Mother has described.  I do not accept her excuses arising out of her fear about J as reasonable excuses.  I do not accept the other circumstances referred to in the reasons constitute a basis for her having a reasonable excuse to breach Court orders.  It is true that the Father has behaved badly on occasions.  I accept however that his behaviour is in part borne out of the frustration of perceiving that the Mother simply has decided not to comply with Court orders. 

2. Accordingly I find:

   41.1That the Mother has contravened Order 3 made on 14 April 2008 on 14 to 16 August 2008 and 21 August 2008;

   41.2The Mother has failed to establish reasonable excuse for contravening the Orders;

   41.3No Court has previously made an order imposing a sanction or has previously taken any action in respect of a contravention of these orders;

   41.4I am satisfied that the Mother has not behaved in a way that has up until this time showed a serious disregard for her obligations under the Orders.

3. Accordingly I have available to me the powers under s 70NEB Family Law Act. 

4. The Mother is to be given a warning that the findings I have made mean that any further proven contravention of these Orders may be dealt with under a different part of the Act which enables the Court to impose a fine, a community service order or imprisonment.

5. I intend to order that the W and D spend from Friday to Sunday with their father for the next six weeks to in part compensate the Father for the time that he has not spent with the boys.

6. I intend to make an order directing both the parents to attend a post-separation parenting program. I have no doubt that other than behaviour is being exhibited by particularly W at the time of changeover is borne out of the intensity of the current conflict between the two parents.  I understand that the current conflict maybe being fuelled by the bitterness of the property dispute between the parties and that that bitterness will not subside until those matters are resolved, but it is important for the children that this time for the parents to do what they can to attempt to develop some skills to be able to function with one another as parents of these boys.  There is no doubt in my mind that W would be acutely aware of the current level of antipathy that exists between his parents.

7. Section 70NBA of the Family Law Act allows me to vary the current parenting orders.  In doing so I must have regard to what is in the children’s best interest. 

8. The Mother has filed an application to vary the current orders.  She has sought the appointment of and Independent Children’s Lawyer.  I think it is appropriate to make that order.

9. The Mother has asked me to make some significant current changes to the current orders.  The Father opposes any change to the current orders. 

10. I accept that it would be inappropriate to entertain, on the limited information that I have, any significant change to the current orders.

11. The current order allows another adult to supervise the children if the Father is to be away (whilst at the same time requiring him to be there with the boys for substantially all the time that the boys are with him).

12. I intend to impose a further condition, because I think it might assist the Mother by reducing the current level of apprehension that she has, to require that an adult be present at all times when the boys are in their father’s household.  The purpose of making that order is, in the interim until the matter is fully ventilated, to ensure that the Mother’s level of fear is reduced by doing what I can to assure her that nothing untoward will happen particularly in relation to J either sexually interfering with or bullying W or D.

13. I intend to vary the current order accordingly.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts

Associate:

Date:  24 September 2008