BRYAN and HYDE

[2021] FCWA 234

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: BRYAN and HYDE [2021] FCWA 234

CORAM: DUNCANSON J

HEARD: 18 NOVEMBER 2021

DELIVERED : 16 DECEMBER 2021

FILE NO/S: 5432 of 2013

BETWEEN: MR BRYAN

Applicant

AND

MS HYDE

Respondent

Catchwords:

CONTRAVENTION - of parenting orders - applications dismissed

Legislation:

Family Court Act 1997 (WA) s 7A, s 205C, s 205E, s 205F

Category: Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Self-Represented Litigant

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bryan and Hyde has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1[Mr Bryan], the father filed contravention applications on 4 May and 9 June 2021 alleging the mother, [Ms Hyde] contravened orders in relation to the parties' child, [Child A] who is [11 years old].

2The orders alleged to have been contravened are those dated 17 November 2020. In the father's application filed 4 May 2021, the father alleged the mother contravened paragraph 2 of the said orders which provides:

2.The parents have equal shared parental responsibility for the child.

3In the application filed 9 June 2021 the father alleged the mother contravened paragraphs 4, 5, 14 and 16 of the said orders which provide as follows:

4.During school terms, the father spend time with the child on a three-week cycle, recommencing in week 1 of each term, as follows:

(a)In weeks 1 and 2, from 5.30 pm Friday until 4.30 on Sunday, extending to 4.30pm on Monday in the event the Monday is a public holiday or non-school day; and

(b)In week 3, from 5.30pm Thursday to 7.30am Friday, with the father to be at liberty to extend this time, such that it commences from the conclusion of school on the Thursday and concludes at the commencement of school on Friday, provided the father gives the mother 48 hours’ notice by txt or SMS message of his intention to collect the child from and / or deliver the child to school.

5.Other than when handover of the child is effected by delivering her to or collecting her from school in accordance with these orders, the mother shall transport the child to the father’s residence at the commencement of his time with the child and the father shall transport the child to the mother’s residence at the conclusion of his time with the child.

14.The child spend time with the father during that part of each summer school holiday period not otherwise provided for in these orders, in accordance with paragraph 4 hereof.

16.The father spend time with the child in the term school holidays as follows:

(a) In the first week of the end of Terms 1 and 2 holidays in each even numbered year, from 5:30pm on the day school concludes to 4:30 pm on the middle Saturday of the holidays;

(b)In the second week of the end of Terms 1 and 2 holidays in each odd numbered year, from 4:30pm on the middle Saturday of the holidays to 4.30 pm on the day before school re-commences;

(c)The entire end of Term 3 holidays in each odd-numbered year from 4.30pm on the day school concludes to 4.30pm on the day prior to school resuming.

(as per the original)

BACKGROUND

4The parties were in a de facto relationship for a short time from May 2009. They were not cohabiting at the time of Child A's birth [in] 2010. Various parenting orders have been made in proceedings between them, the most recent being those referred to above dated 17 November 2020 which were made by consent.

5Child A was born [in] April 2010. The orders provide that the parties have equal shared parental responsibility for Child A, that she live with the mother and spend time with the father.

6Child A spent time with the father pursuant to the orders, although the mother said she had not wanted to do so for some time. The father did not accept this and said the mother encouraged Child A not to see him.

7Child A spent time with the father in December 2020. On 29 December the father and Child A were travelling in the car. The father asked Child A a question. He said she kept quiet and continued to flick the screen of her phone. He again asked the question and again she did not respond. The father told her that was rude and that if she would not talk to him, she needed to close her phone.

8The father said a while later in an outburst Child A told him she was lonely, frightened of him and going to run away. He said this came out of the blue and he was shocked.

9The mother said that on 29 December Child A phoned her, she was upset and told the mother that she hated the father, she did not want to be there and wanted to go home. The mother contacted the father who told her that Child A had been naughty, and it would be giving in to Child A to return her. When Child A was returned to the mother, she told the mother that the father had overreacted in relation to the phone.

10Child A spent time with the father on 8 January 2021. On that occasion, the father told Child A if she felt that way and did not wish to visit him, he would leave that up to her and it would be her choice. In his view this was between him and Child A and did not involve the mother.

11Child A was subsequently returned to the mother's care. In the communication book on 8 January 2021, the father wrote:

[Child A] can decide if she wants to visit her father or if she wants to come at all. I have taken into account what you requested. I won't force her to come if she doesn't want to.

12Child A has not spent time with the father since.

13After Child A returned to the mother's home, the father requested the return of the mobile phone which he had given her. He said it was a present from him on condition that she phoned him, and she agreed to that. He explained that if Child A was to grow up and breach contracts and not obey orders, then the phone should be returned. The father said that the mother said she did not know where the phone was and that it was missing. The father initiated civil proceedings although ultimately it was not returned. He locked the phone remotely so that it could not be used.

14Child A transitioned from year 5 to year 6 in 2021 and for a period of about the first four weeks of term she was reluctant to attend school and did not attend for the full week. As discussed below the parties separately arranged for Child A to see psychologists.

15The father deposed that the right to choose which he gave to Child A was never intended for Child A to permanently not see him. He said it was "rescinded" on 2 April 2021 in a text message to the mother stating that Child A was to be brought to her father as per the court order.

16The mother stated Child A does not wish to visit her father and will not go. The mother said she is not willing to force Child A to do so.

17The father's position is that historically the mother has not encouraged Child A's time with him. He believes the mother has tried to alienate Child A from him since before Child A's birth and has been using the argument that she could not get Child A to do what she did not want to do since she was very young.

18The father was critical of the mother in many respects, including with respect to medical treatment. He described the mother as vengeful, spiteful and vindictive. He said she polishes her halo before she walks into court.

19The mother said Child A has had a lot of emotional meltdowns which she believed was triggered by Child A going from one home to another. She said Child A was aware of the court proceedings. The mother said she had gone as far as to say she would get into trouble and might go to jail if Child A did not go to her father. The mother said the father has since text messaged her regarding child support and has requested a paternity test. Her position is he has made little effort to make contact with Child A.

20Child A has not spent time with the father since 8 January 2021. The father's position is that the mother has denied him access to Child A. The mother's position is that Child A refuses to go, but she encourages her to do so.

THE LEGAL PRINCIPLES

21In terms of s 205C of the Family Court Act 1997 (WA) ("the Act"):

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.

22The orders are not being complied with in that Child A is not spending time with the father.

23Section 205E provides that the circumstances in which a person is taken to have a reasonable excuse for contravening an order include but are not limited to the circumstances set out in subsections (2), (4), (5), (6) and (7).

24Subsection 2 provides:

(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if -

(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

(b)a court is satisfied that the respondent ought to be excused in respect of the contravention.

25The respondent has the onus of establishing that there was a reasonable excuse for the contravention and s 205F provides that the standard of proof to be applied in determining the matter is proof on the balance of probabilities.

DISCUSSION

26In his application filed 4 May 2021 the father alleged a contravention of paragraph 2 of the orders which provides for the parties to have equal shared parental responsibility. In particular, the father alleged that the mother "without reasonable excuse, is preventing, and failing to provide medical treatment for the child in accordance with paragraph 2 of the order".

27The father deposed that on 8 March 2021 Child A attended an appointment with a psychologist chosen by the mother. On 25 March 2021 Child A attended an appointment with a psychologist arranged by the father. The father deposed he asked the mother on multiple occasions to take her to further appointments. The mother made only one appointment on 14 April 2021, which she cancelled the day before. The father deposed the mother argues she cannot get Child A into the car and Child A does not want to go. He deposed she made other excuses for not making or delaying appointments.

28The father deposed the mother sent him a message on 10 April 2021 to the effect that Child A wants nothing to do with the psychologist and would not go. The mother messaged saying she believed Child A would benefit from seeing someone, but she could not force her into the car or make her talk to someone she does not want to. The father deposed:

[Child A] is clearly in need of professional help. [Ms Hyde] has a legal obligation under paragraph 2 of the order, to ensure [Child A] gets that help.

29The mother said she arranged for Child A to see a psychologist located close to where she lives, but Child A would not cooperate in that appointment. The father arranged an appointment for Child A to see [Mr A], a psychologist located in [Suburb A], which both parties and Child A attended. The mother said Child A initially refused to get out of the car, but when she saw the father, she jumped into the back seat and subsequently got out and ran to the mother and cried. It is not in dispute that Child A was very upset in Mr A's rooms. The mother made a further appointment for Child A to see Mr A. She said she had to reschedule an appointment due to a change in her work schedule, and Child A refused to go. The father does not accept this.

30The mother said currently Child A is attending school. She is doing "fantastic" [sic], is well-mannered and other parents have commented on how "lovely and well [Child A] has grown up" [sic]. In the mother's view she does not require psychological help and is stable and in a "very good place".

31An order for equal shared parental responsibility imposes an obligation upon the parties to consult as to major long-term issues regarding Child A and to make a genuine effort to come to a joint decision about such an issue. Major long-term issues are specifically defined in the Act at s 7A as issues about the care, welfare and development of a child of a long-term nature including issues about the child's health.

32It is clear from the evidence of the parties there is little communication between them and no consultation. The father said he did not want any verbal communications with the mother. Child A has refused to see a psychologist and the mother's view is that she does not require to do so as she is in a "very good place". The father considers Child A should see a psychologist with a view to her reunification with him. It is not in dispute that Child A was distressed at the commencement of the appointment with Mr A and that she was not cooperative. The mother said Mr A had said to her that he could not work with Child A if she was not willing to go. The father said Mr A had said to him that he was happy to deal with Child A and continue with the sessions. The father said that the mother had made a further appointment with Mr A which was subsequently cancelled due to a change in her work schedule, which the father said was an excuse.

33In my view these circumstances do not give rise to a contravention of the order for equal shared parental responsibility. The mother has not prevented or failed to provide medical treatment to Child A and the order for equal shared parental responsibility does not require her to do so. As stated above the order for equal shared parental responsibility requires the parties to consult and make a genuine effort to come to a joint decision about Child A's health which would include her attendance at a psychologist. No such joint decision was made.

34The parties' relationship is such that they appear to be unable to fulfil the obligations of an order for equal shared parental responsibility. I find the mother has not contravened paragraph 2 of the said orders.

35In his application filed 9 June 2021, the father alleged the mother is without reasonable excuse preventing him from having "access to [Child A]". The father alleged contraventions of paragraphs 4, 5, 14 and 16 of the orders which provide for Child A to spend time with him during the school term and in the school holidays and for the mother to deliver her to his home.

36The circumstances of Child A not spending time with the father since 8 January 2021 are set out above. The mother said the father told Child A if she didn’t want to come, he would not force her. He wrote in the communication book he had taken into account the mother's request and would not force Child A to visit him if she did not wish to do so.

37The father explained that while he realised he had told Child A she could come when she felt like it, the intent was not for her to never see him again. He alleged the mother encouraged Child A not to see him and there was no agreement between him and the mother, but between him and Child A. He said as a parent he believed he had the right to change his mind when it came to parenting and what was right for Child A and that was what had taken place. He had withdrawn what he had said and requested that Child A be brought to his home pursuant to the orders.

38The orders are not being complied with by the mother. I find in the circumstances she has a reasonable excuse for not complying with the orders as I am satisfied she ought to be excused in respect of the contravention. The father informed the mother in the communication book that Child A could decide if she wanted to visit him or if she wanted to come at all. I accept that at this time Child A does not wish to see the father.

39The difficulty with the father's case is that it is not open to him to choose when and if the orders are to be complied with. In circumstances where the father does not require compliance with the orders and then changes his mind and requires them to be complied with, a reasonable excuse for non-compliance by the mother is established.

40The contravention applications of the father will be dismissed.

41I understand that the father will be disappointed with this outcome. I endeavoured to explain to him at the commencement of the proceedings that if he sought further or other parenting orders in respect of Child A it would be necessary for him to bring an application to the Court and that the contravention applications would not necessarily resolve the difficulties he is currently experiencing with Child A not wishing to see him.

THE ORDERS

1.The applications filed 4 May and 9 June 2021 be and are hereby dismissed.

2In relation to material tendered as an exhibit into evidence in these proceedings:

(a)all parties must collect the exhibits tendered by them ("their exhibits"), from the chambers of Justice Duncanson, at least 28 days, and no later than 42 days, from today’s date;

(b)all parties must contact the chambers of Justice Duncanson to arrange the collection of their exhibits;

(c)in default of compliance with subparagraph (a), all material tendered as an exhibit, save and except for material produced pursuant to subpoena, will be destroyed by the court without notice to the parties.

3.In the event of an appeal being lodged prior to the expiration period of 42 days, paragraph 2 does not apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

SI

Associate

15 FEBRUARY 2022