Caller and Vincennes

[2010] FamCA 1155

FAMILY COURT OF AUSTRALIA

CALLER & VINCENNES [2010] FamCA 1155

FAMILY LAW – CONTRAVENTION – With whom a child spends time and communicates

Family Law Act 1975 (Cth)

APPLICANT: Mr Caller

RESPONDENT: Ms Vincennes

FILE NUMBER: MLC 6924 of 2008

DATE DELIVERED: 20 DECEMBER 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 6 DECEMBER 2010

REPRESENTATION

THE APPLICANT: IN PERSON

COUNSEL FOR THE RESPONDENT: MR STANLEY

SOLICITOR FOR THE RESPONDENT: ROBERTS BECKWITH PARTNERS

Orders

1. That the application for contravention filed by the husband on 30 August 2010 is dismissed.

2. That the hearing of the wife’s application in a case filed 24 November 2010 returnable 7 January 2011 before a registrar is vacated and IT IS DIRECTED that the application be listed again after the completion of the requirement of paragraph 5 hereof.

3. That paragraph 3 of the orders made on 25 January 2007 is varied as follows:

   (a)That the husband spend time with the child A born … May 2002 during the long Christmas vacation for the first half in each even-numbered year plus four days and for a similar period in each alternate year thereafter and for the second half in odd-numbered years and for a similar period in each alternate year thereafter; and

   (b)That paragraphs 3(e)(ii) and (iii) of the said orders are discharged.

4. That in respect of the children K born … December 1998 and A born … May 2002 the parties attend upon a family consultant for the purposes of a Child & Parents Issues Assessment.

5. That if after consulting with the family consultant, the parties are still in dispute about the appropriate time and the way of organising that time between the husband and the children, they may each file applications without having to fulfil the requirements of s 60I of the Act and such applications to be listed for a case assessment conference as soon as practicable thereafter.

6. That until further order, the wife be relieved of the obligations to consult and communicate with the husband in respect of major long term issues associated with the children.

7. That the husband pay the wife’s costs of $3600 within two months of the date of these orders.

8. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 6924  of 2008

MR CALLER

Applicant

And

MS VINCENNES

Respondent

REASONS FOR JUDGMENT

1. On 30 August 2010, Mr Caller (“the husband”) filed an application for contravention seeking to have Ms Vincennes (“the wife”) dealt with under Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) for a variety of breaches of parenting orders made by consent of the parties on 27 January 2007.

2. The three children who were the subject of these proceedings are T born in January 1995 who is almost 16 years of age, K born in December 1998, who has just turned 12 years age and A born in May 2002 who is 8½ years.  T has not had any contact with her father for some months save for Father’s Day.  K has had no contact with her father for a probable period of six months but A goes on a regular basis. 

3. The husband filed an affidavit in support of his application which ran to 44 pages and a further 40 pages of annexures.  He relied on that affidavit.

4. The mother was represented by counsel.  She did not file any material and denied each of the allegations. 

5. To complete the picture, the mother filed an application in a case on 24 November 2010 which is returnable before a registrar on 7 January 2011.  In discussion during the proceedings, it has become apparent that that application may need to be amended as it would appear to perpetuate the problem rather than fix it.  I propose to vacate that hearing until an assessment has occurred with a family consultant.

6. Shortly prior to the hearing before me, the husband arranged with the Registrar to issue a subpoena to a Ms C to give evidence and produce documents.  Ms C is a psychologist who has had involvement with both the husband and the wife but also the children.  She expressed some reservations about compromising her position as a therapist but I found her evidence generally helpful.  The children are not seeing Ms C at the moment and if as would appear, one or both of the parties intends to rely upon her evidence in future, the children will be placed in an invidious position of not wanting some of the things said in therapy, repeated to their respective parents.  I shall deal with the evidence of Ms C below. 

7. The relevant orders alleged to have been breached are as follows:

   2.That the Husband and Wife have joint shared parental responsibility for the long term care, welfare and development of the children of the marriage [T] born […] January 1995, [K] born […] December 1998 and [A] born […] May 2002.

   3.That the children live with the Wife at all times, save that they live with and communicate with the Husband as follows:-

   a)During school terms each week from 5.00pm Friday until 7.00am Monday save on the 3^rd, 6^th and 9^th weekends of the terms of the 8^th weekend of terms in the event that there are only 9 weekends in one term;

   …

   d)That the children reside with the Husband during the 1^st and 3^rd school term holidays from 5.00pm on the last day of term until 9.00am in the Wednesday of the second week of the holiday period, and in the second school term holiday from 9.00am on the Saturday approximately mid way through the holiday period until 7.00am on the first day of the new term;

   (e)(i)        for one half plus four days of each long Christmas vacation at times to be agreed, but in default of agreement, the second half for the 2005/2006 holiday period and each alternate year thereafter and the first half of 2006/2007 holiday period and each alternate year thereafter;

   (ii)in the event that the children’s school holidays are of different duration the “half” be calculated as the weighted average of the respective holiday lengths and such period commence on the last day of term for the child that finishes last or the day that will enable the second half of all holidays (plus four days to conclude) prior to the resumption of term of the child that resumes school last.

   (iii)That the weighted average be computed by calculating the official gazetted school holiday periods for the relevant child/children and the official published school holiday period for any child attending non-government school.

   …

   i)That the children be permitted to telephone the parent with whom they are not residing whenever they reasonably request to do so.

   …

   5.That the Wife be permitted to enrol the children [K] and [A] in [M] Primary School and [T] in [D] College and change of further enrolement in relation to the children’s schooling be by written agreement or further Court Orders.

   …

   9.Pursuant to S65DA(2), the particulars of the obligations these orders create and that particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

8. The contraventions can be grouped into five categories.  They are:

   (a)a dispute over when the school holidays commenced for the summer of 2009/2010;

   (b)whether the child K should have gone with the father for the Term 2 school holiday in 2010;

   (c)four weekends of 16 July, 23 July, 6 August and 13 August 2010 relating to either K and T or just K alone not attending;

   (d)that the mother failed to allow T to communicate with the husband on or around 14 July 2010; and

   (e)a dispute about parental responsibility including the failure to consult the husband about enrolling K in secondary school and failing to allow the husband to attend a Year 9 parent/teacher interview with T in September 2009.

9. Although the parties have long separated and each has remarried, I propose to refer to them in these reasons as the husband and the wife.  I mean no disrespect to their current partners.

The Christmas holidays 2009/2010

1. The husband alleged that he had calculated under the orders that the holidays were to commence on 31 December 2009.  The wife disputed that saying that it should commence on 3 January 2010.  The parties exchanged correspondence.  Consistently with everything these parties still do, the correspondence was stilted and blunt.

2. The gravamen of the dispute arises from the terminology in the order.  I note that the parties determined the wording which was ultimately sanctioned by the Court.  I confess however that I did not understand the meaning of “weighted average” until it was explained to me by the husband.  Having some confusion in my own mind about what it meant, I could understand how the wife might have a similar problem.

3. On face value, the difficulty arises because these children are in two different schools and have two different lots of holidays.  What seemed clear from the orders was that the husband was to have half of the school holidays plus four days and clearly the wife four days less than half.  On the husband’s view of the orders, that was not so.  The methodology he used significantly departed from the principle of one half plus four days because he grouped all of the children in one and averaged the time out.  In so far as that was his intention, I am satisfied it was not that of the wife. 

4. The husband’s evidence was that the calculations were simple and clear.  He maintained it was simple by saying that the wife ignored the “weighted average”.  The wife’s evidence was that she had calculated matters in the same way that she had in previous years and that she had had legal advice about what she was to do.  Hence the parties sent correspondence backwards and forwards and neither departed from their respective positions.

5. The wife attended at the handover point on 3 January and the husband was not present.  Significant confusion thereafter followed and the husband collected the children on 5 January 2010.

6. I shall deal with the legal issues below as to how I have determined the matter. Suffice to say that I am satisfied that the wife did not intentionally fail to comply with the order.

7. In my view, the order is not only confusing but open to dispute and needs to be rectified in a simple way.  I propose to do that.

The second term holidays 2010

1. The husband alleged that the child K did not attend for the nine days of the Term 2 holiday break.  He said that the wife delivered T and A but not K.  When asked about text messages that the wife sent to him, he denied that he had seen any but in the next breath, commented that he had never read the wife’s text messages but had other people read them and then delete them.  To criticize the wife for failing to communicate must be seen as hypocritical.  The wife’s evidence was that leading up to this period, K was distressed.  The wife said she reinforced to the child in the week prior to the holidays, the necessity of attending.  She described K as not sleeping and being agitated.  Despite that, K attended at the handover point.  K was in the car because she had been coaxed there by her mother.  She was described as staying rigid in the backseat and saying she was not going.  Some of this arose out of the first term holidays in which the wife said that she received over 80 text messages from K wanting to come home saying that the time with her father was terrible and there were discussions about the husband not being her father anymore. 

2. The husband did not cross-examine the wife about that issue.  It was put to the husband that Mr Vincennes, the wife’s present husband, attended at the car but the doors were locked and the father would not speak to him.  Whatever may have been the reason historically for that position, it did nothing to alleviate the dilemma.

3. The husband’s position was that the wife orchestrated all of this.  I reject that because of the evidence from the psychologist Ms C.  I shall deal with her evidence in a moment.

4. I am satisfied that the wife was bound by the order and made every reasonable attempt to comply with it but was unable to force K to attend.  The second contravention allegation is therefore dismissed.

The weekends in July and August 2010

1. The husband set out in his affidavit the various days upon which either K and/or T and K failed to attend.  He conceded that A always attended.  He said that T told him that she was not supposed to visit for weekends until he accepted the reduced contact time.  There is some support for that evidence coming from Ms C but the husband conceded that K was in a different category to T and he was not necessarily pressing for T to come now.  I accepted that as a concession by the husband that K is resistant not withstanding her age and the mother’s obligation.

2. Importantly however, the husband said that he spoke to T on Thursday 5 August 2010 asking her whether she was attending for the weekend. T is reported to have said that she did not know.  The husband then said this in his affidavit:

   I playfully mocked her with the response “how come you don’t know?  Are you being held prisoner there?”

   [T] replied with “can we please change the subject!”

3. I find this to be a remarkable conversation.  It might be seen as “playful mocking” but in the context of five years of bitterly fought litigation and the views to which I shall refer from Ms C, it seems to me to be insensitive and unhelpful.

4. The evidence of the husband himself also shows that he involved the children in conversations about the dispute.  He conceded that there was a report by Mr P highlighted by him attached to his freezer at home.  The children reported that to their mother.

5. The wife’s evidence as to what gave rise to the refusal of the children and in particular T concerned a trip by T to Italy.  The husband said that he was so keen for T to go on the trip that he obtained the passport application and gave it to T to take home but never saw it again.  The wife’s version was that T bought the document home but it was unsigned by the husband.  The wife said that T told her that the wife had to complete it and return it and the husband would obtain the passport and provide it to T on the day she was leaving.  The wife’s evidence along with that of her husband was that they had saved significant funds to enable T to go on the trip.  When the husband was asked about contributions to expenses of the children he said that it was all encompassed in child support.  If that was his view in respect of the Italy trip, he is sadly mistaken. 

6. T adopted a view of not attending to contacts with her father at that time of the issue about the passport.  The wife’s evidence was that the children had attended counselling with Ms C in July and both said that they were not going on contact any further and that she could not make them go.  The wife’s evidence, which was not challenged by the husband, was that she constantly reinforced that they had to discuss the issue with their father.  On 6 August 2010, both children locked themselves in T’s room.  The wife said that one of the children said “Mum just give up”.  On another occasion, when the wife inquired about the children going with their father, T said that she was on a train and going to see her friends.

7. It must be kept in mind that T is 16 years of age and obviously very strong willed. 

8. I am satisfied that the wife made very reasonable attempt to comply with the orders.  Nothing the husband said could convince me that the wife had deliberately embarked upon a campaign to frustrate the orders.  Quite the contrary, I am satisfied on her evidence that she became exasperated and she was the person to whom the children turned with their complaints about the husband.

9. The contraventions relating to 16 July, 23 July, 6 August and 13 August are therefore dismissed.

14 July – failing to allow T to communicate with the husband

1. The husband’s evidence was that he received a message from Ms C requesting that he call T.  He annexed to his affidavit a statutory declaration in which he quoted Ms C as asking him to ring T the following night which would have been 15 July 2010.  The message said that T needed to speak to him.  The husband asked me to draw an inference that because of that communication, the wife had failed to allow T to communicate at a time which was reasonable having regard to the obligations of the wife under paragraph 3(i) of the orders made 25 January 2007.  When the wife was cross-examined about that period of time, she said that T had lots of “issues” and was beginning to assert herself as she was a growing young woman.  She said her own parenting had had to change.  She said T wanted to spend time with her friends, get a job and that had now occurred for weekends.

2. Having regard to T’s age and the evidence of the wife, I was not prepared to draw the inference that the husband would have me so draw.  That allegation is therefore dismissed.

The enrolment and shared parenting issues. 

1. The husband’s evidence was that the wife had enrolled K in D College from the primary school contrary to paragraph 5 of the orders.  Paragraph 5 as will be seen above, is vaguely worded.  The husband’s evidence was that the wife had simply enrolled K in the school at which T was already attending.  The wife’s version was that she did not think to consult with the husband because she had always understood that that was were K was going and as T was already there, it was a natural progression.  The husband was adamant that the wife should have consulted with him about that.

2. The husband based his argument on the fact that the wife and her new husband had filled in the enrolment form.  Mr Vincennes was asked about why he had done that and his response was simple.  He said that he and his wife were the ones who paid the school fees and therefore that was what he understood he was expected to do.  The husband’s position in relation to that was that he paid about $14,000-15,000 of child support per annum and therefore Mr Vincennes could not say that he was contributing towards the school fees.  It is certainly arguable that private school fees are not part of child support obligations unless there is a specific factoring in of those expenses.

3. The husband pointed to the fact that he attended a mediation centre in Ringwood and requested the mediators bring in the wife for the purposes of discussion about a number of parenting issues but in particular, the schooling issue.  The wife’s evidence was that she attended the centre but was advised that the mediation was not appropriate in the circumstances of the nature of the relationship between the parties.  I can well understand why.

4. The wife was cross-examined about the enrolment and how she could conclude that she did not need to discuss the matter with the husband.  All of the evidence suggests that there is no communication between the parties at any level.  That will be obvious from the fact that the wife’s evidence was that over the Christmas holiday period to which I have earlier referred, she was sending text messages and the husband was simply having someone else delete them because he would not read them.  The correspondence between the parties in relation to that same period as annexed to the husband’s affidavit is convoluted and I can well understand the frustration of the wife.  I equally understand the dilemma of the husband’s frustration because he wanted to be a significant parent in the lives of the children.  In this case however, he might have been better to have sent the wife a letter or contacted her solicitors to advise that he wanted some discussion about schooling.  His method of approach leaves something to be desired.

1. In addition to the problem about the enrolment, the husband also asserted that he had been precluded from attending a parent teacher night in September 2009 but there was no evidence to suggest that the wife orchestrated that.  There was no evidence from the school indicating that he was prevented from taking T.

2. The husband also asserted that the enrolment issue was a breach of the shared parental responsibility.  Paragraph 5 of the orders however could be read the way the wife perceived it.  There was no evidence that the husband had sent a particular proposal.

3. I am not satisfied that the wife intentionally failed to comply with the order or made no reasonable attempt to comply with the order.

4. The fifth group of allegations must therefore be dismissed.

The law

1. Section 70NAC of the Family Law Act 1975 (Cth) (“the Act”) provides that a person is taken to have contravened an order if and only if where bound by the order, that person has intentionally failed to comply with the order or made no reasonable attempt to comply with the order.

2. Section 65DA(2) requires that an attachment to orders set out the particulars of the consequences that would flow from failing to comply with the orders.  The document attached to the orders sets out clearly that parties must be proactive in encouraging children to attend for the periods of time with the other parent.  A parent is not entitled to simply stand back and fold his or her arms and convey a message that it is okay not to comply.  In this case, I am satisfied that the wife made every attempt but having regard to the evidence, she was unable to get the two older girls to go with their father. 

The evidence of Ms C

1. Ms C is a clinical psychologist and family therapist.  She has been a psychologist for 12 years during general psychology mainly in family disputes.  She began seeing T in October 2009 on a weekly basis and K from 6 April 2010.  She saw K on her own and at times with the adults and other children.  She had seen both of the parents. 

2. In respect of T, Ms C said that the child felt that she was the “meat in the sandwich”.  She said that up until she ceased seeing the children in September 2010, there was pressure from both houses adding to the difficulties at school and T wanted it all to end. 

3. Ms C described K as a very articulate child who was more reactive in the husband’s home than T.  She was making it clear she did not want to go to the husband’s house and the husband made the concession to which I have referred earlier.

4. Ms C said that K did not feel pressured by her mother although she did feel rewarded by staying at home with the wife.  I asked Ms C whether the children would go if they were pressured to attend and she said “probably not”.

5. In respect of T, Ms C said that the child felt it was better not to go because that pleased her mother but importantly, the child just wanted peace.  Ms C felt that the mother was emotionally pressuring T but by the same token, I can accept that T is 16 years of age.

6. Ms C said that K should go but would resent the parent or parents if she was pressured.  She said that K might go if she felt like attending. 

7. As far as T was concerned, there was overt and covert pressure from the mother not to go but the pressure was in both households. 

8. The husband’s view of Ms C was that she had adopted the view that it was all the fault of the wife and the pressure being applied.  I do not accept that that is what Ms C was saying.  Whilst there had certainly been encouragement by Ms C to the husband to continue with the pursuit of the children, Ms C was also adamant in saying that these children were caught in the middle of a very conflictual family.  If the parties continue with that conflict, the children will clearly vote stronger with their feet than they have already. 

9. The evidence of Ms C was helpful in that it does not convey the picture portrayed by the husband that there was a concerted effort by the wife to cut the husband out of the lives of the children.  The wife may very well have exhibited signs of saying that the children did not have to go to see their father but that was never put to the wife by the husband.  When challenged, the wife said that she had encouraged the children and she explained the reactions of the children.  I have expressed those matters above. 

Reasonable excuse

1. Even if it could be said that the wife had not made sufficient attempt to comply with the order, s 70NAE provides that the circumstances under which a person may be deemed to have had a reasonable excuse for contravening an order are not necessarily limited to those set out in the section.  The relevant one in relation to contact provides that a parent must believe on reasonable grounds that not allowing a child to spend time was necessary to protect the health or safety of the child and for no longer than was necessary in the circumstances.  Having regard to the age of these children and their level of maturity, I could not find that forcing them to go was good for their psychological health.  As I said, I am satisfied that the wife did make a concerted attempt to get the children to go and that that failed.

Standard of proof

1. Section 70NAF provides that the standard of proof to be applied in determining matters is the balance of probabilities.  Having regard to the evidence that I heard, I am satisfied on the balance of probabilities that the findings I have made above are appropriate.

Parenting orders

1. Section 70NBA provides that if there are proceedings before the court and contravention proceedings are completed, the court has power to vary the orders.  The clear intention of the legislation is to make the orders workable. 

2. The proceedings in January are before a registrar and as such, there will be limited opportunity for the parties to argue about change.  The husband said that he wanted to be involved in a child inclusive program but I have made clear to him that he will need to file material.  I consider January will be too early and as such, the social scientists need to do their work first.

3. The wife filed her application seeking a continuation of joint shared parental responsibility. The Act describes the role as equal shared parental responsibility. If a parent cannot communicate as is required by the Act, that parent must seek either a discharge of the equal shared parental responsibility order or alternatively exemption from having to negotiate and consult. In this case, at least for the moment, there is little point in any negotiations because the parties are so polarised. Whilst I have only dealt with the contraventions, I have a very strong impression that the husband in a dogmatic way approaches the matter as if he alone is correct and gives no credence to the difficulties that the wife faces with two teenage children. Those children may very well be reacting the way they are as a result of being caught in the conflict.

4. Pending the further determination of this matter however, two things need to be resolved.  The first relates to the question of the holiday period which has already commenced.  I propose to suspend the orders in respect of T and K having regard to the avoidance of an ongoing dispute about those children.  I propose also to discharge the weighted average concept so that there is no misunderstanding between the parties.  The husband will have one half of the time with A plus four days as was clearly contemplated in the 2007 orders.

5. Until further order, I propose to suspend the wife’s obligations under s 65DAC in relation to education issues so that a court can look at that in more detail in the future. If there is in fact a dispute over education, that needs to be canvassed properly before the Court.

Costs

1. The husband could not countenance the fact that if he was unsuccessful, he should contribute towards the wife’s costs.  The position he adopted however seems to me to warrant the wife making the application. 

2. Section 117 of the Act covers the issue of costs. It provides that each party pay their own costs unless there are circumstances justifying a departure from that principle. The provisions of Division 13A also make allowance for courts to make orders for costs in circumstances where contraventions of the less serious nature have been unsuccessful. In this case however I do not think it is appropriate to make orders under that provision.

3. Returning to s 117 however, the circumstances that justify an order for costs against the husband in this case are that he adopted a dogmatic approach particularly in relation to two children whose views were very clear. In those circumstances, the wife had little choice but to put before the Court a comprehensive picture as to why the two children were not attending. In addition, the confusion around the orders arose in part because of the drafting but also because of the dogmatic approach taken by the husband. In those circumstances, there is a justification for a departure from the principle.

4. Section 117 goes on to say that if a court is contemplating making an order for costs, it must contemplate the matters set out in s 117(2A).

5. I am not aware of the financial circumstances of each of the parties save that both gave evidence that they were in full time employment.  Each has family obligations.  The husband’s new wife is currently not working. 

6. Neither party suggested they were legally aided.

7. I have already set out above the questions relating to the way in which the matter was conducted.  The husband in this case has been wholly unsuccessful.  There are no offers provided to me in writing.

8. In these circumstances, an order for costs should be made. 

9. Counsel for the wife sought costs thrown away on the previous occasion when I reserved the costs of counsel.  He was not able to tell me what costs had been incurred by the wife with her solicitor but his own fees for the day were $1600.

10. There are ongoing proceedings between the parties and to a very large degree, some of the matters set out in these reasons together with the various documents already provided by the parties can be used to try and isolate the issue.  In the exercise of my discretion, I propose to order that the husband pay only the two brief fees having regard to the fact that the wife filed no material.

11. The husband will pay the wife’s costs of $3600.  I propose to grant a stay of two months for the payment of those costs.

I certify that the preceding Sixty Eight 68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 20 December 2010.

Associate: 

Date:  20 December 2010