Charonne and Charonne (No. 2)

[2007] FamCA 1716

FAMILY COURT OF AUSTRALIA

CHARONNE & CHARONNE (NO. 2) [2007] FamCA 1716

FAMILY LAW – CHILDREN – Contravention of non-denigration order - Post separation parenting program ordered

Family Law Act 1975 (Cth)

APPLICANT: Mr Charonne

RESPONDENT: Ms Charonne

FILE NUMBER: MLC 4853 of 2007

DATE DELIVERED: 7 August 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 7 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms M.L. Smallwood

SOLICITOR FOR THE APPLICANT: B Company Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms R. Stoikovska

SOLICITOR FOR THE RESPONDENT: Marshalls & Dent

Orders

On the matter of Charonne I order as follows:

1. By consent that the husband's application on form 18 filed on 30 July 2007 presently listed for 20 August 2007 be heard this day.

2. The court finds that on two occasions on 28 July 2007 the wife breached paragraph 12 of the order made on 4 July 2007, without reasonable excuse.

3. It is ordered that pursuant to the provisions of s 70NEB(1)(a)(ii) of the Family Law Act 1975 (Cth) both the husband and the wife within 14 days or as soon thereafter as maybe practicable, contact the program provider Relationships Australia, … and arrange an appointment as soon as practicable thereafter for an initial assessment as to the suitability for the post-separation parenting program called, "Key steps to parenting after separation".

4. That the husband and wife be and are hereby required to attend the appointment for initial assessment at any reasonable time and place nominated by the said provider.

5. That if assessed as suitable for a program or part of a program, and the program provider nominates a particular program for them to attend, they must attend that program or part of the program (as the case may be) as soon as practicable.

6. That in the event that the parties or either of them are assessed as being unsuitable for the said program, they or either of them forthwith apply to the court pursuant to liberty to apply granted herein for any further order or direction arising out of these applications.

7. That the husband's said application on form 18 be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4853 of 2007

MR CHARONNE  

Applicant

And

MS CHARONNE  

Respondent

REASONS FOR JUDGMENT

1. The parties have previously married and are separated under the one roof.  On 4 July 2007, they entered into consent orders made by the court, paragraph 12 of which provides:

   That each party be and hereby [sic] restrained from denigrating or abusing the other in the presence or hearing of the child [L].

   L is the only child of the parties and she turned six years of age in the last couple of weeks.  I say from the beginning that I regard the word "denigrating" as effectively being criticising, and I do not regard denigrating as being any great term of art as it is sometimes considered to be.

2. The orders provide that while the parties live under one roof, which is the present position, "[t]he husband shall have exclusive time with [L] as follows," there then follows a number of subparagraphs pursuant to which the husband has what is referred to as "exclusive time".  However, the orders do not provide for L to live with either party and other than the order to which I have just referred, do not refer to her spending any other time with both parties.  That is a particularly strange situation given that the parties are separated under the one roof, although the facts persuade me that the husband absents himself from the home from time to time and that is said with no intent of criticism.

3. The circumstances in which these proceedings are brought in my view are largely borne out of what I regard as being the unsatisfactory nature of not only the formal orders, but the practical “on the ground”, hothouse atmosphere in which this family lives.  On 30 July 2007 the husband issued an application on form 18 alleging a number of contraventions of paragraph 12 and other provisions of the orders.  That application was originally returnable on 20 August 2007, but I will be making an order today as part of the orders which I make at the end of these reasons for judgment, providing for the matter to be heard today, which is common ground of both parties.

4. The two remaining allegations made by the husband in his application, both relate to alleged events on 28 July 2007.  The first of those occurred at 9.30 am, and the second of those allegedly occurred between 2.30 and 2.45 pm.  Each of the allegations is that the wife without reasonable excuse denigrated the husband in the presence of the child.  The relevant particulars are to be found in paragraphs 12 and following of the husband's affidavit sworn on 30 July 2007 in support of this application.  In respect of the earlier matter, the husband alleges that the wife said to him in the child's presence:

   I suppose you're doing all this stuff to impress the court.  Well, it won't work, you should fuck off.  [L] and I are fine without you.  She doesn't need you, you're not part of her life, you're never going to be any part of [our] life.  When you're away she doesn't miss you at all, do you [L]?  Just fuck off and leave the two of us alone.

5. The second allegation contains the following words alleged by the husband to have been said to him by the wife in the presence of the child.  On the basis that the child was playing with her Barbie doll and complained that the doll's dress would not come off, the husband alleges that the wife said:

   Get dad to do it.  He loves little girls, he loves taking little girl's clothes off.  He's a paedophile you know.  He just loves to undress little girls.

   Prior to that it is alleged that the wife had said to the husband in the child's presence:

   What's daddy doing?  Looking at little girls.  You know he likes little girls.  He's a paedophile.  He only plays with little girls.  Isn't that right?  He goes out with children the age of his children.  You're a paedophile, nothing but a paedophile.  Yes, a paedophile.

6. Both parties were cross‑examined.  The husband was questioned at length on the detail of the words in quotes which I have set out above.  The wife admitted that she had said words to that effect.  But of particular significance from her point of view, and the point at which the parties fundamentally differ with regard to the evidence is in the word "paedophile" which the wife denies having used.  It became clear by the end of the evidence of the wife that she was admitting not only that she had breached the order, but also that she had done so without reasonable excuse.  Accordingly, it is incumbent upon me as conceded by the wife's counsel that I find that the two allegations of contravention of paragraph 12 of the order against the wife have been proven.

7. The question remains as to whether the dispute over the word "paedophile" is of significance.  An essential part of the background of this matter is that with the breakdown of the marriage and perhaps relevant to it, it is alleged that the husband has entered into a new relationship with a woman aged about 25 years, who is allegedly - or on the allegation of the wife - known to her adult child by a previous relationship, and has gone clubbing with her.  It is not relevant for me to make any finding as to whether there is any such relationship or, if there is a relationship, the age of the woman.  Even if there is a relationship, the woman is an adult and there cannot be said to be anything to be criticised in that for the purpose of the present application.  As to whether that goes to other matters in the case, and particularly questions of parenting of the subject child, is not a matter which I need to trouble myself but it may become relevant at some later time.

8. Also on the basis of the concessions as to potential penalties made by both counsel, it is not necessary for me to make a finding as to whether the word "paedophile" was used as part of the criticism of the husband by the wife in the hearing and presence of the child.  It is also therefore not necessary for me to make any specific finding with regard to the actual words used. That is fortunate, as in the circumstances I am not at all sure how reliable I might have found the evidence of both of the parties for varying reasons.  For the sake of the child and in particular in an effort to reduce the heat of this matter between the parties, I have decided that it is preferable for me not to make any findings with regard to that, and I therefore decline to do so.

9. Suffice it to say that words of the kind alleged by the husband, with the exception of the word "paedophile" which I have declined to make a finding on, were said by the wife and are admitted by her to constitute a breach without reasonable excuse.  I therefore turn to the question of what, if any, sanction should be imposed.  This is a matter within subdivision E of the contravention provisions and particularly within section 70NEB(1) of that legislative framework.  It is common ground that only the provisions of subsection (1)(a) relating to the attendance at a post-separation parenting program and (1)(d) being the possible entry into a bond by the wife are relevant.  Neither counsel seeks the imposition of any other sanction, although of course I note that questions of costs remain alive and will be considered at the end of this judgment.

10. I have concluded that it is appropriate to impose a post-separation parenting program at least on the wife, and I have further concluded that it is not appropriate to impose a bond.  The mitigating factors are first and most importantly the nature of the orders, and the consequence of them on inflaming the family situation which in my view is contrary to the best interests of the child.  Further, there is uncontroverted evidence that the wife is and particularly was at the time of these contraventions, in bad health, and was suffering considerable pain.  It would appear that she had been to hospital, and as well as that the circumstances between the parties were extremely fraught.  If the circumstances between the parties were more settled, and in particular if these contraventions had occurred when the parties were physically separated, I may have considered the question of a bond differently but they are not the present facts.

11. Accordingly I discard the option of a bond.  The only remaining question is that of attendance at a post-separation parenting program.  Section 70 NEB(1)(a)(ii) empowers me to order that the wife and another specified person attend a post-separation parenting program.  In this situation, the only other possible specified person is the husband.  In my view, given the findings which I have previously made, both parties would benefit very greatly from the post-separation parenting program, and the most beneficial result of that is potentially for the child.  Accordingly, I will order that both the husband and the wife attend a post-separation parenting program in accordance with the regulations.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate

Date: 17 November 2008