Bryant and Kelly

[2014] FamCA 958

FAMILY COURT OF AUSTRALIA

BRYANT & KELLY [2014] FamCA 958

FAMILY LAW – ORDERS – ENFORCEMENT OF ORDERS – Parenting orders – Where there was a contravention of consent orders by the mother – Where the mother said she had a reasonable excuse – Where the mother said the children were anxious in the father’s care – Where the mother filed an application to vary the orders – Where the father then filed a contravention application – Where the mother’s application was listed before the father’s contravention application – Where the mother’s application was successful and the orders were varied – Where the mother’s defence of reasonable excuse was made out – Father’s contravention application dismissed.

Family Law Act 1975 (Cth) ss 70NAE, 70NDB

APPLICANT: Mr Bryant

RESPONDENT: Ms Kelly

FILE NUMBER: SYC 7646 of 2010

DATE DELIVERED: 7 November 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 20 October 2014

REPRESENTATION

THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Gordon & Barry Lawyers

Orders

IT IS ORDERED

1. That the Contravention Application of Mr Bryant (“the father”) filed 29 May 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bryant & Kelly 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 7646 of 2010

Mr Bryant

Applicant

And

Ms Kelly

Respondent

REASONS FOR JUDGMENT

1. Mr Bryant (“the father”) and Ms Kelly (“the mother”) have two children, O born in 2006 and L born in 2007 (“the children”). They separated in November 2009.

2. On 18 June 2013, orders were made by consent (“the Orders”),  providing for the children to spend time with their father, relevantly, each alternate weekend from 9 am Saturday until 4 pm Sunday during school terms. That order was to remain in force until 18 July 2014 when the time was to be extended from after school on Friday until 4 pm Sunday during school terms.

3. The Orders also provided that the children spend time with their father each alternate Tuesday after school until 6.45 pm during school terms.

4. Order 6 of the Orders provided that during term time the father could communicate with the children by telephone each second Thursday, provided that he first email the mother and giving her at least 24 hours’ notice to confirm that he would be telephoning.

5. The Orders made provision for school holidays, overseas travel, communication, medical treatment and the like.

6. The penultimate order was to the following effect:

   If in the event that any dispute arises as a result of these Orders, compliance with them or any other Parenting issue in the future, both parties shall as a first option attend upon a Family Dispute Resolution Practitioner and invite the other party to participate in that process, before any proceedings are commenced or contemplated.

7. From the time of the making of the Orders until 3 May 2014, the children spent time with their father in accordance with the Orders. From 3 May 2014 the children did not attend the father’s home on weekends or on after school occasions and did not speak to the father on the telephone.

8. The father filed an application on 29 May 2014 seeking that the mother be dealt with for contravention and the matter came before me for hearing in the Judicial Duty List on 20 October 2014.

9. The mother was charged with three counts of contravention in accordance with the father’s application and the parties made submissions in relation to the establishment of a prima facie case.

10. Reasons for judgment were delivered ex-tempore on 20 October 2014 in relation to the establishment of a prima facie case. It was found that a prima facie case had been made out in relation to two counts. The first being that the mother without reasonable excuse did not allow the children to spend time with the father after school on 27 May 2014 and thereafter. The second count was that the mother without reasonable excuse did not allow the children to speak to the father over the telephone on 22 May 2014 and has not allowed the children to speak to him since that date.

11. In relation to each of those two counts, the mother admitted the contravention but said that she had a reasonable excuse.

12. The meaning of reasonable excuse is set out in s 70NAE of the Family Law Act 1975 (Cth) (“the Act”) and, from the manner in which the mother’s case was conducted, it is apparent that she relies upon sub-ss 5 and 6 of s 70 NAE. Those provisions are set out below:

FAMILY LAW ACT 1975 - SECT 70NAE

Meaning of reasonable excuse for contravening an order

(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).

1. The standard of proof to be applied to the determination of whether the mother had a reasonable excuse for contravening the Orders is proof on the balance of probabilities.

2. The mother, in her defence, relied upon paragraphs 58 to 80 of an affidavit sworn by her on 16 May 2014 together with an attachment labelled MK4 found at pages 40 - 49 of that affidavit. She also relied upon paragraphs 10 - 19 and 20 – 25 of an affidavit sworn by her on 25 July 2014. She tendered a bundle of correspondence between her solicitors and the father between 6 May 2014 and 9 May 2014. That correspondence was also annexed to the father’s affidavit.

3. On 6 May 2014 the mother’s solicitors wrote to the father alleging that the father had communicated with the mother other than in accordance with the Orders, that the children had been left unattended and that they had been allowed inappropriate use of electronic devices. In the letter the solicitors for the mother said:

   Additionally (the mother) has discussed with you matters of concern to her regarding [O]. This includes extreme anxiety exhibited by [O] prior to overnight visits to your home. (The mother) has taken [O] to a counsellor in an attempt to determine the cause of and otherwise deal with his anxiety. Such counselling is continuing.

   Subsequently to (the mother’s) email to you dated 2 May 2014 you and (the mother) have agreed that for the present time [O] will cease to spend overnight time with you. In this regard (the mother) proposes that [O] continue to attend the counsellor and that you and (the mother) attend a therapist from [R Therapy Centre] with a view to developing a child focused co-parenting arrangement and to otherwise acquire some tools for dealing with [O’s] anxiety.

4. The letter included contact details for R Therapy Centre and invited the father to make his own inquiries and to respond to the letter.

5. On 7 May 2014 the father sent a letter to the mother’s solicitors expressing his own concerns about the manner in which the children were parented in the mother’s home, specifically that they were not sleeping in their own beds. The father denied that he had agreed to cease overnight stays. He asked that the solicitors confirm that the mother would adhere to the current orders and specifically asked that they confirm that the mother agrees to the children staying overnight in his care on the next scheduled period which was to commence at 9 am on Saturday 17 May 2014. The father gave notice that he regarded the mother’s conduct as being a deliberate breach of the orders. The father said:

   I have already notified your client as of last weekend that she would receive an invitation from Relationships Australia to attend counselling. Failing your client’s attendance where a case worker has already been assigned conveniently located at [Suburb N] given the close proximity to her workplace and residence, I will request issuance of the required certificate and file an application for contravention.

   Your client is in clear and deliberate breach of the Order on multiple counts and I feel very strongly based on previous experience that only the Court can resolve this quickly. I do not wish to attend Court, however, I am not the source of conflict and see no other choice if your client does not attend Relationships Australia as already informed and begin to act in the children’s best interests.

6. On 9 May 2014 a letter was sent by the mother’s solicitors to the father responding to his concerns about the children’s care in her home and giving details of the therapist who was seeing the child O. The solicitors for the mother informed the father that the mother had been able to obtain confirmation from Relationships Australia that an appointment had been made and suggested an alternate therapist, Ms A, who had availability for a joint meeting on 16 May 2014. The father was asked to advise whether he was prepared to participate in mediation with Ms A.

7. Also on 9 May 2014, a further letter was sent by the mother’s solicitors to the father’s solicitors confirming that she had been unable to confirm an appointment with Relationships Australia and that the person to whom she spoke at Relationships Australia was unable to advise when an appointment might be available. The solicitors for the mother said:

   My client remains of the view that her concerns in relation to the children are likely to be best addressed by each of you participating in family therapy. Until this occurs my client does not believe it would be in the children’s interests to have overnight visits at this time. We are instructed that following your agreement last week for the children to return to my client on Saturday 3 May 2014 the children were visibly relieved and less anxious. Please advise whether you will reconsider your decision to participate in family therapy with [R Therapy Centre] or another therapist acceptable to you.

   In the event you and my client are unable to reach agreement in relation to this issue mediation may be of assistance. For this reason my client has suggested mediation with [Ms A]. In circumstances where Relationships Australia are unlikely to be in a position to assist for several weeks possibly months we invite you again to participate in mediation with Ms [A]. My client would be amenable to engaging with Relationships Australia in addition to engaging in mediation with Ms [A].

8. On 9 May 2014 the father wrote to the mother’s solicitors confirming that an appointment had been made with Relationships Australia at 11.30am on Monday 12 May 2014. The father said:

   I agree that some form of mediation is required as I have from the outset nearly five years ago. I ask your client first call Relationships Australia today at the number above as I believe there should be time available to attend before I agree to attend ([Ms A]) next Friday.

   To be very clear, it is not my intention to attend to mediation and agree to any variation of the Final Order. I expect the children to stay overnight in my care as scheduled on the next visit and for any subsequent visits. It is incumbent on your client to ensure the Order is not breached in any way by her deliberate actions.

   Your client has over an extended period of time been assertively discouraging the children from wanting to stay in my care. I find this form of manipulation of serious concern and without question to the detriment of the children emotional welfare and most likely the basis of [O’s] alleged issues, which, again, I have consistently expressed to your client could manifest if she continued her course of action.

9. There was then correspondence between the father and Ms A.

10. On 15 May 2014, the mother’s solicitors wrote to the father saying:

    My client’s concerns in relation to the children have increased. These concerns have not been assisted by your responses to communications forwarded by or on behalf of my client. The position is such that [O] is now unwilling to spend any time with you and is displaying additional signs of anxiety and reluctance. [L] has also expressed similar reluctance. My client had hoped to explore and address these matters in family therapy.

    My client’s invitation to participate in family therapy remains open. My client will participate in such therapy on a joint basis, provided it is conducted initially in separate rooms and thereafter as recommended as by the therapist.

    My client facilitated mediation with [Ms A] on an urgent basis. She has attended an individual mediation session with Ms [A]. It is regrettable that your delay in agreeing to participate in the mediation has caused the joint appointment to be pushed forward to the week following the children’s next scheduled visit with you.

    My client’s concerns for the children are such that she seeks your agreement to the children’s time with you being suspended until the completion of family therapy and on terms as recommended by the therapist or as otherwise agreed.

11. On 16 May 2014 the father responded. He did not agree with the mother’s position and said:

    It is (the mother) that is suffering from anxiety as described by the court-appointed psychiatrist, Dr [M].  (Dr M had prepared a report in previous proceedings.) Her emotional state is impacting on the children in a very serious matter. My priority is the welfare of the children.

12. Also on 16 May 2014, the mother’s solicitors wrote to the father attaching an Initiating Application, affidavit and s 60I certificate which they informed him were to be filed on the following Monday 18 May 2014. The mother’s solicitors confirmed that the children would not be available to see the father on the weekend.

13. On 18 May 2014, the father wrote a letter to the mother’s solicitors, asserting that the mother had breached the Orders and giving notice that he intended to telephone the children at 6 pm on Thursday 22 May 2014.

14. On 21 May 2014, the mother’s solicitors wrote to the father and advised that the children would not be available to speak to him by telephone on Thursday 22 May 2014 at 6 pm. The mother’s solicitors said:

    Our client remains concerned that, in the absence of your acknowledgment that there are serious issues to be addressed in relation to the children and a commitment to work through such issues, telephone communication with the children would not be in their best interests. We are otherwise instructed that this is the first occasion you have sought to telephone the children on a Thursday evening since the making of the Orders on 13 June 2013.

15. The mother’s solicitors confirmed that the mother would not be making the children available to spend time with the father on Tuesday 27 May 2014 or on any further occasion until:

    …further order of the Court and/or an agreement is reached between you and our client.

    Our client’s invitation for you to participate in family therapy otherwise remains open and she otherwise remains willing to mediate the matter and attend Relationships Australia for this purpose.

16. The mother filed an Initiating Application on 19 May 2014 supported by an affidavit sworn by her on 16 May 2014. She sought an order that all previous parenting orders be discharged. By way of interim orders the mother asked the Court to suspend the existing orders for the children to spend time with their father and to order that the family participate in family therapy with Mr G of R Therapy Centre or another qualified psychologist.

17. In the affidavit in support of her application, the mother at paragraphs 58 to 80 set out her observations of O’s anxiety and increasing unwillingness to spend time with his father over the past four to six months, which, according to the mother, has been escalating since the beginning of 2014.

18. The mother detailed text messages sent to her by O from his father’s home as late as midnight asking her to come and collect him and complaints made by O to her that his father had physically assaulted him.

19. In March 2014 O told his mother that he didn’t wish to go to his father’s home because he was afraid that his father might kill him and O complained of his father punching him.

20. In April 2014, O didn’t want to sleep in his own bed, and told his mother that he was scared that his father would use a ladder to get on the roof and come in the window and kill him.

21. In June 2013, the mother was advised by O’s teacher that O’s behaviour was unsettled and was told that, in the opinion of the teacher, O would benefit from counselling. In terms 1 and 2 of 2014, O attended the school counsellor in relation to his difficulties with his teacher. In May 2014, the mother made an appointment for O to see a clinical psychologist. She did not inform the father until O had attended two sessions with the psychologist. The father’s response to the information that O was attending a psychologist was a message on 9 May 2014 where the father said:

    Does [O] know he is going to an office called ‘… Child and Adolescent Mental Health Service??

22. However, it is not suggested that the father objected to O’s continuing to see the psychologist.

23. The children were scheduled to spend overnight time with the father on three consecutive nights being 22, 23 and 24 April 2014 during the school holidays. On 16 April 2014, the mother emailed the father to let him know that O was concerned about the length of the visit. The parties were able to agree that the visit would be curtailed and that the children would spend only the night of 22 April 2014 with the father and return to the mother for the night of 23 April 2014.

24. The children were scheduled to spend overnight time with the father on the weekend of 3 and 4 May 2014. The parents again agreed that the children would be returned to the mother early. They were returned to her on the evening of 3 May and collected again by the father on the morning of 4 May 2014. The mother says that O was greatly relieved by not having an overnight stay on that occasion and thanked her for organising that the children would come home. After that weekend the correspondence which has been referred to earlier in these reasons between the father and the mother’s solicitors commenced.

25. On Monday 12 May 2014, the mother says O had become distressed about the upcoming weekend and told her that he was scared of his father. The mother says that O said to her that he was scared of his father shouting. On 14 May the mother says that O said to her that he wanted to stop going to see his father and that L on that day had also said that she did not like her father and complained about her father shouting. The mother says that the children were clingy and sensitive and O had been asking for extra cuddles. She reported both children were displaying behaviours such as extended crying and curling up in a ball on the floor.

26. The mother’s application was listed before Senior Registrar Campbell on 4 August 2014. The Senior Registrar suspended the operation of the Orders, ordered that the children be independently represented, made directions for the filing of affidavit material and stood the matter over to 19 September 2014.

1. On 19 September 2014 the children were represented by an independent children’s lawyer, Mr O’Dowd. The Senior Registrar continued the suspension of the spend time orders contained in the Orders and made orders, pending further order, that the children spend time with their father from after school on Friday until 5 pm on Saturday in each alternate weekend commencing on Friday 26 September 2014.

2. Orders were also made for the appointment of Dr M as a single expert witness to prepare a report in relation to the family.

3. In the course of the hearing before me, the father was asked whether he wished to cross-examine the mother in relation to her evidence upon which she relied as to her reasonable excuse. The father indicated that he did not wish to do so and indeed in his own submissions he relied upon passages from the mother’s affidavit.

4. It is not suggested in the proceedings before me that the mother has fabricated her evidence in relation to what the children have said to her and her observations of their behaviour. Rather the issue is the genesis of the children’s behaviour which the father believes is caused by the mother.

5. Whether or not the reluctance currently displayed by the children,  particularly O, to spend time with their father is a product of the mother’s behaviour, the father’s behaviour or some other cause will undoubtedly in due course be the subject of Dr M’s considerations.

6. The father’s application that the mother be dealt with for contravention was filed on 29 May 2014, 13 days after he had received the mother’s application to vary the Orders.

7. He has proceeded with that application in circumstances where the Orders were suspended on the first return date of the mother’s application. It is self-evident that the Senior Registrar accepted that a suspension of the Orders was necessary to protect the health and safety of the children until such time as the matter could be given further attention and an independent children’s lawyer appointed.

8. I accept that the mother attempted to resolve the matter by engaging in family dispute resolution as was required by the Orders.

9. I accept that the mother believed on reasonable grounds that not allowing the children to spend time with the father was necessary to protect their health and safety and that the period during which the children’s time with the father was suspended was no longer than was necessary to protect the health and safety of the children.

10. The mother’s defence of reasonable excuse is therefore made out and the application of the father in relation to contravention will be dismissed.

11. S70NDB of the Act makes provision in circumstances such as these, where the Court has found that an Order has been contravened but with reasonable excuse, for the Court to make a further parenting order that compensates the father for time missed with the children. However, when the parties are implementing the orders of the Senior Registrar, it would appear successfully, and are engaging with Dr M to seek his assistance but have not yet received his report, I could not be satisfied that it is in the best interests of the children to make any changes to the current arrangements.

12. This is a matter that will no doubt be considered in the final hearing when Dr M’s evidence will be available.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 November 2014.

Associate:

Date:  7 November 2014