CALLAHAN & KALICH

[2013] FCCA 591

FEDERAL CIRCUIT COURT OF AUSTRALIA

CALLAHAN & KALICH [2013] FCCA 591

Catchwords:
FAMILY LAW – Contravention – long-running proceedings – risk and history of alienation/estrangement of children from Father – findings of breach against Mother.

Legislation:
Family Law Act 1975, ss.70NAE, 70NEB, 70NEC

Cases cited:
Kalich & Callahan [2011] FMCAfam 444

Applicant: MR CALLAHAN

Respondent: MS KALICH

File Number: CAC 306 of 2009

Judgment of: Judge Neville

Hearing date: 13 December 2012

Date of Last Submission: 13 December 2012

Delivered at: Canberra

Delivered on: 14 June 2013

REPRESENTATION

Counsel for the Applicant: Self-Represented

Counsel for the Respondent: Self-Represented

Counsel for the Independent Children's Lawyer: Mr D Ridge

Solicitors for the Independent Children's Lawyer: Barker & Barker, Canberra

ORDERS

1. Of the contraventions pressed by the Father in the Amended Contravention Application filed 4 October 2011, the Court finds them established, and the defence of “reasonable excuse” by the Mother not made out;

2. The parents are to have equal shared parental responsibility for the child, [Z] (born [in] 1998) (“[Z]”);

3. [Z] is to spend time and communicate with his Father in accordance with his wishes.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 306 of 2009

MR CALLAHAN

Applicant

And

MS KALICH

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter has followed something of an unfortunate cycle.  Very briefly stated that cycle, post-separation, is as follows:

   (a)the three children of the relationship enjoy a reasonable relationship with both parents,

   (b)as they get older and they spend less time with their Father and more time with their Mother, they become more estranged from him (sometimes completely estranged from their Father)

   (c)as they get older still, in time, they move to a much more balanced relationship with their Father, with some degree of estrangement from their Mother.

2. The precise detail of the history of the background to this matter is set out in an earlier judgment that was delivered on 13 May 2011.[1]  In those proceedings, there were two children involved ([Y] and [Z]).  In the current proceeding, it is now only [Z].  I will not repeat that history, except to note the following.

   [1] See [2011] FMCAfam 444.

3. First, the current application is a long-standing contravention brought by the Father in relation [primarily] to his time with his now almost 15 year old son, [Z].

4. Secondly, while Mr Callahan has re-married, and has a young daughter, Ms Kalich has not re-partnered.  The three family reports (released in August 2010, February 2011, and July 2012)[2] each attest to the fluctuating relationship the children have (or have had) with each of their parents. 

   [2] Each of these reports were formally admitted into evidence.

5. Again by way of general observation, up until recently, each of those reports attest clearly to [Z] (a) wishing to spend regular time with his Father, (b) clearly wishing to spend consistent time with his quite young sister ([A] – he regarded having a baby sister as ‘good’), and (c) recognising that he spends most of his time ‘walking on egg-shells’ in the on-going “war” between his parents.  In one of the reports (referred to in the earlier judgment of this Court), the family consultant records [Z] as saying that Ms Kalich simply does not wish to be near

   
   

   Mr Callahan.  The earlier reports also [generally] confirm [Z] saying that he wished to spend equal time with his parents.

6. Thirdly, Ms Kalich has made multiple and obviously distressing ‘observations’ or accusations about Mr Callahan’s Wife, including the state of her mental health.  In the previous judgment I found that there was significant evidence to rebut those allegations, which I consider to be not only without foundation but to border on the malicious.

7. Fourthly, the most recent report, that of Ms C, dated 30 July 2012, is replete with further accounts of distressing conduct that has had the effect of undermining [Z]’s relationship with his Father. Most unfortunately, much of this conduct must properly be attributed to the Mother.  Indeed, given how little time [Z] has spent with his Father (and in recent months, no time at all) the deterioration in the reasonably good relationship between Father and Son recorded in the earlier reports to one now of significant alienation, in my view, can only be laid at the feet of Ms Kalich. 

8. Further, on the account given by Mr Callahan’s Wife (e.g. noted in the latest family report), in many respects Ms Kalich has continued with her denigration and attempted disruption of the lives of Mr and Mrs Callahan, and the relationship between [Z] and his Father.

9. Fifthly, in relation to the current and long-standing contravention application, Mr and Mrs Callahan confirmed to Ms C that they considered many times dropping it.  However, it has been pursued because of the fear that dropping if the application was not pressed, it would send a poor “message” to [Z] that Mr Callahan did not wish to spend time with him.

10. In Ms C’s report, she recorded that [Z] emphatically said that he did not wish to see his Father at all. In the same report, and after recounting a number of savage comments about his Father, as well as more than “curious” accounts of events, Ms C said (para.8.2): “[Z]’s negative views of his Father’s actions can only have come from his Mother.”  For the reasons already given, and those noted below, I agree with and accept Ms C’s unfortunate and grave assessment.

11. The reasons proceed as follows: (a) outline of ‘findings’ and comments from the Report of Ms C; (b) the contravention proceedings proper; (c) conclusion.

The Report of Ms C (July 2012)

1. I note the following observations and comments from the report of

   
   

   Ms C. 

2. First, I repeat Ms C’s observation that [Z]’s negative views of his Father’s actions can only have come from his Mother. Ms C commented that [Z] believed that his Father had lots of extra-marital relationships.  She said (para.8.2):

   Such a perception is very unsettling for a teenage boy at a time when he is trying to establish his own values, and given the usual rigid views of modern youth about the inappropriateness of ‘cheating’.  [Z] has also gained the idea that his Father is motivated by trying to evade his Child Support obligations, and been led to believe he is not important to his Father and that his Father never spent time with him.

3. Later in her report (para.8.4) Ms C said:

   Mr Callahan’s perception in this matter that his difficulties seeing his children particularly escalated after he remarried and had another child appear valid.  His wife has been vilified and criticised.  My observations of Mrs Callahan were that she was a very caring, concerned adult, who did not merit being portrayed as a mentally ill, drug abuser.

4. At paragraph 8.5, Ms C said:

   It is hard to understand the degree of hate that could motivate Ms Kalich to, either directly herself or indirectly via the children, destroy and return portraits that her ex-husband painted of their children.  Such an act can only be labelled despicable, and an example of very poor, hostile parenting.  Despite Ms Kalich maintaining that she encouraged [Z] to go on contact, her seeming inability to put issues aside and influence [Z] positively towards his Father has resulted in [Z]’s poor relationship with his Father.  For reasons of her own, Ms Kalich cannot encourage the children to see their Father.

5. At paragraph 8.6, Ms C continued:

   Interestingly, the middle child, [Y], appears to have found a way to maintain her relationship with both parents.  Her Mother complained [Y] would not tell her details of her stays at her Father’s, an undoubtedly sensible approach by [Y]! Nevertheless, Ms Kalich still took the opportunity to suggest [Y] slept in a garage.

6. In my view, the following comments are particularly important from Ms C’s report.  They need to be set out in full.  They provide (as do earlier comments from Ms C) important background and context for the contravention application.  This is so because of the large number of contraventions alleged, which relate to [alleged] breaches of orders in 2011 (when the Father’s relationship with [Z] was noticeably better than it is today).  The Report provides a convenient bridge for and comparator to the evidence used to support the earlier orders the subject of the contravention application, and the later evidence of both parties in relation to the application. 

7. Beginning at paragraph 8.7 of her July 2012 report, Ms C said:

   [Z] was strongly aligned with his Mother.  Previous reports by

   
   

   Ms W in 2010, and Ms L in 2011, indicate his antagonism to his Father is a fairly recent development promoted by his Mother and perhaps contributed to by some understandable jealously of his half-sister as she becomes more demanding of time and attention at his Father’s.  [Z], with no basis at all in my view, commented he did not feel important to his Father.  His Father’s commitment to this dispute belies this.

8. At paragraph 8.9, Ms C said:

   Realistically, Mr Callahan has considered withdrawing from this dispute, and not enforcing orders for [Z] to see him.  In my opinion, such a withdrawal would only be used by Ms Kalich to support her contention to [Z] that he is not important to his Father.  This would be most unfortunate.  Also, without seeing his Father, [Z] will have no opportunity himself to challenge the perceptions he has adopted of him, or to hopefully view his Father in a more sympathetic light.

9. Finally, Ms C observed (para.8.10):

   Notwithstanding the Judge’s warning about the potential consequences of contravening Court orders, I have no confidence that Ms Kalich and [Z] will abide by any orders made.  I do not think Mr Callahan should bow out of his son’s life, and certainly would not support parental responsibility being taken from him…

10. To state the obvious, the comments from such an experienced family consultant are very significant.

The Contravention Application

1. The original application was filed on 6 July 2011.  An amended application was filed on 4 October 2011.  The delay in hearing the application proper was occasioned by one or other of the parties being overseas for extended periods, at different times, as well as attempts to mediate further parenting orders, which might be complied with.

2. Summarily stated, there are 16 separate contraventions alleged by

   
   

   Mr Callahan against Ms Kalich.  They relate, essentially, to times that [Z] was not made available to spend time with his Father, pursuant to the Court’s orders of 13 May 2011, between June and September 2011.  One of the contraventions involves the child “[Y]”, who was the subject of the May 2011 orders.  All other contraventions relate only to [Z].

3. In support of his application, Mr Callahan filed four affidavits on (respectively) 6 July 2011, 4 October 2011, 1 February 2012, and 27 July 2012.  Ms Kalich filed a single affidavit on 26 August 2011.

4. Ms Kalich deposed generally that she has endeavoured to make the May 2011 orders work and to encourage [Z] (and the daughters of the relationship) to spend time with his Father.  Ms Kalich confirmed that she had done everything to encourage the relationships between the children and their Father, but that, for example, in relation to [Z], she could not force him to spend time with his Father.  She said that she had “not interfered in any of my children seeing their Father.”

5. In relation to each of the allegations, the Mother said (by way of overview): that (a) in one or more instances, [Z] had lost his mobile phone, thereby making it impossible for communication between Father and son (and for which she should not be responsible); (b) she could not and would not force [Z] to spend time with his Father against his will; (c) that [Z] and his Father did communicate, to some degree in 2011, via Facebook and email; and (d) on a number of occasions, she was unaware of emails from Mr Callahan.  Accepting that Ms Kalich’s replies are much more detailed than noted here, the substance of them I take to be that more often than not, in 2011, [Z] either (a) did not wish to spend time with his Father, (b) did not wish to spend as much time with his Father as the orders provided, or (c) had other engagements (usually with friends) which prevented him spending time with his Father.  And in relation to each of these “excuses” or “reasons”,

   
   

   Ms Kalich had no control over any of them.

6. At the hearing on 13 December, Mr Callahan (a) confirmed that he saw no point in cross-examining Ms Kalich in relation to any of the contraventions because to do so would serve little or no purpose, (b) said that he (and his Wife) often questioned the utility of pressing on with the contravention application for fear of alienating [Z] but ultimately did pursue it because they also did not wish [Z] to think that his Father thought so little of him that he would not fight for the right to spend time with him, and (c) in relation to each of the ‘responses’ or ‘excuses’ provided by Ms Kalich, they related to events or circumstances after the dates of the contraventions alleged to have taken place in 2011 that are set out in the application.

7. I should also note that while most of the contraventions alleged related to [Z] not spending time with his Father, there were two others that related to the provision of information, by Ms Kalich, to Mr Callahan, such as contact details for [Z] in certain circumstances (such as going to Sydney), or if he otherwise left the Canberra region. Ms Kalich’s replies to these particular contraventions were to the effect that (a) because she did not have [Z]’s cousin’s contact details, she confirmed that she stressed to [Z] that he had to ensure his Father received this information, and (b) she had no recollection of a particular occasion when [Z] was taken out of the ACT. I simply observe that the responsibility to comply with orders rests with Ms Kalich, not with [Z].

8. Mr Callahan confirmed that, in all the circumstances, he would be “content” (my word - to put the best gloss on the situation) if the Court made orders to the effect that [Z] will spend time with his Father in accordance with his ([Z]’s) wishes.  In a rare show of unanimity,

   
   

   Ms Kalich agreed that such orders would be appropriate and would be supported by her.  Mr Callahan also sought to continue the order for equal shared parental responsibility.  That order will be continued.

9. Given (a) the way the matter was conducted (both with the evidence set out in the documents filed, and at the hearing), (b) Mr Callahan’s acknowledgment of [Z]’s current alienation, (c) what I regard as

   
   

   Ms Kalich’s problematic evidence (a description, I hasten to add, which is exceedingly charitable), and (d) the evidence of all three family consultants set out in their reports,[3] I propose formally finding that

   (i)each of the contraventions alleged has, in my view, been established,

   (ii)the reasons provided by the Mother do not satisfy the definition of “reasonable excuse” in s.70NAE of the Family Law Act1975 (“the Act”), and

   (iii)in all of the circumstances, although the Court would otherwise be minded to impose a fine or other penalty,

   the only orders to be made by the Court are for the parents to have equal shared parental responsibility in relation to [Z], and for [Z] to spend time and communicate with his Father in accordance with his wishes.  The orders will also note that, in the event that there are further contraventions established against the Mother, the Court would be likely (but not confined to) ordering that a bond be imposed on the Mother, the breach of which could have very significant, adverse consequences for her.[4]

   [3] I should note that Ms Kalich confirmed that she did not accept much of what is in Ms C’s report, not least her assessment of Ms Kalich.

   [4] See ss.70NEB & 70NEC.

10. It would be as well for [Z] to be apprised (via the good offices of the ICL) and be made aware of the fact that his actions in all aspects of his life have consequences.  Certainly, in relation to his refusal to spend time or communicate with his Father, the consequences could fall (and could continue to do so) on his own life, but will impact also on all of his sisters (including [A]), and (potentially adversely) on his Mother.  This is not a threat.  It is merely a statement of fact and the reality that our actions have consequences for ourselves and for others – whether we like, or intend, it or not.

11. Indeed, subject to the views of the ICL, it may be prudent for him to speak to [Z] about the choice either to build bridges or to damage them in his familial relationships.  A positive course will certainly require many virtues, not least being compassion and truth, as well as justice, forgiveness and hope.  Such things may take time to establish, but without a start, the risks to all are significant.

12. But the matter does not end here.

13. Although (properly so) he did not take part in the contravention, the Court had the benefit of an experienced Independent Children’s Lawyer (“ICL”) who had spoken with [Z], with a view to informing the Court about his wishes, in the event that the Court re-visited parenting orders.

14. In accordance with discussions with the ICL (with the parties present, of course) the Court requests that the ICL speak with [Z] (a) to advise him of the orders of the Court, and (b) to apprise him of the substance of and comments in Ms C’s report and the two judgments of the Court.  I would also be grateful if the ICL would confirm to [Z], as earlier noted in these reasons, that his actions have consequences (actual and potential) for many people, including his Mother.

15. Like his parents, and like the rest of us, [Z] now has a choice: whether to be a force for good - or not.  Even not to choose for "the good" and do nothing is already to choose.  Not to decide is already a decision not to engage.  That would be deeply unfortunate.  The same comments apply, as I have indicated, to his parents.  For all of the protests that have come to nought, time has now run out.  It is time to decide.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Neville

Associate: 

Date:  28 June 2013