CONTI & CONTI

[2014] FamCA 746

FAMILY COURT OF AUSTRALIA

CONTI & CONTI [2014] FamCA 746

FAMILY LAW – CONTRAVENTION – Where the Father filed a contravention application in relation to parenting – Where the Mother made an application for orders that the proceedings be dismissed as vexatious under s 118 of the Family Law Act 1975 (Cth), that the Father be restrained from instituting further proceedings without leave of the Court and an order for costs – Applications dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Conti

RESPONDENT: Ms Conti

FILE NUMBER: BRC 436 of 2009

DATE DELIVERED: 10 September 2014

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 24 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: The Applicant Father appearing in person

COUNSEL FOR THE RESPONDENT: Mr Carmont, Solicitor appearing for the Respondent Mother

SOLICITOR FOR THE RESPONDENT: Somerville Laundry Lomax

Orders

IT IS ORDERED THAT:

1. All applications be dismissed and removed from the pending cases list.

2. There be no order as to costs.

3. Any amount payable to S School for outstanding school fees be paid forthwith by the parties in accordance with previous Court Orders with the payment to be made by cheque and posted in the mail to the attention of the school principal.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Conti & Conti 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 BRISBANE

FILE NUMBER: BRC 436 of 2009

Mr Conti

Applicant

And

Ms Conti

Respondent

REASONS FOR JUDGMENT

1. On 21 October 2011, final parenting orders were made by O’Reilly J with the consent of Mr Conti (“the Father”) and Ms Conti (“the Mother”).

2. Those Orders concerned two of the parties’ children, namely J born in July 1995 and T born in August 1997.

3. Whilst the specifics of those Orders will be discussed further, the fundamental provisions of those Orders provided for the parents to have equal shared parental responsibility for decisions in relation to major long-term issues; for the children to live with the Father; and for the children to spend time with the Mother.

4. At this point two matters of central importance to the Father’s Contravention Application ought be made.  First, as is obvious from the Orders, one fundamental foundation of the consent Orders overall was that the children would be living with the Father.  Second, that J obtained his majority in July 2013 and T will obtain hers in August 2015.

5. The foundation of the children living with the Father ceased to exist when, in mid-2012, both children ceased to live with the Father and commenced living independently of either parent soon afterwards.  J was then almost 17 years of age and T was almost 15 years of age.

6. Given that this foundational aspect of the consent Orders ceased to exist, a significant question arises as to any merits in the Father’s application in respect of alleged contraventions by the Mother of those consent Orders otherwise.  That question assumes even greater prominence having regard to the ages of the children.  Given that J turned 18 years of age last year the consent Orders now only have effect with respect to T who has now turned 17 years of age and has, as noted, been living independently of either parent since about mid-2012.

7. In my judgment, when regard is had to the fact that Division 12A of the Family Law Act 1975 (Cth) (“the Act”) applies to these proceedings, it might readily be concluded that in the circumstances of this case as just outlined it would be consistent with the principles, duties and powers outlined in Division 12A to summarily dismiss the Father’s Contravention Application.

The Father’s Contravention Application

1. On 13 June 2013, the Father filed a Contravention Application alleging that the consent Orders were contravened by the Mother.  The Father filed an affidavit in support of his application.

2. The Mother filed an affidavit on 12 August 2013 and another on 13 February 2014 in response to the Contravention Application.

3. Further, the Mother filed an Application in a Case (“the Mother’s Application”) on 4 September 2013 seeking that the Father’s Contravention Application be declared vexatious and other subsequent orders.

4. On 13 February 2014, the Father filed a Response to the Mother’s Application and filed an affidavit on the same day.

5. The Mother has alleged that the Father’s Contravention Application does not provide details of the alleged contraventions as required by the Family Law Rules 2004. However, in the submissions of the solicitor acting on behalf of the Mother, the following was asserted:

   The Application does not provide details of the alleged contraventions as required by Part D of the form of application required by r 21.02 of the Family Law Rules 2004. The Father has specified certain parts of the Order, certain details and times and a statement which appears to relate to all of the alleged contraventions. In his Affidavit in support of the Application the Father has referred to the parts of the Order which he alleges have been contraventions by their identifying number in the Order. It is on the basis of the information contained in the application when read in conjunction with the information contained in the Affidavit that the Mother is able to respond even though the Application is deficient in form.

6. As I noted in my Reasons for Judgment of 6 December 2013, from these submissions, it could be concluded that the Mother has taken preliminary objections to the form of the application, but has conceded that she is able to answer it notwithstanding the deficiency of the form of the application.

7. In his affidavit filed 13 June 2013, the Father set out at length what he alleges are the contraventions of the Mother.  In summary, it appears that the Father claims that the Mother has been endeavouring to alienate the children from him by those matters as he sets out in his affidavit (supra) and that as a result thereof, the children have been alienated from him and he no longer has contact with the children.

8. Further, the Father alleges that the following events amount to contraventions by the Mother:

   ·The child J was injured in a school sporting incident and had to have emergency treatment for a dislocated knee about which the Mother failed to inform the Father;

   ·The Mother’s partner Mr P has been present when the children are with the Mother, despite the Order which prohibited such contact;

   ·The Mother failed to inform the Father by text message of the arrangements she has to spend time with the child T;

   ·The children began seeing a psychologist while they were living with the Mother and the Mother failed to inform the Father of the name of the psychologist;

   ·The Mother has failed to authorise the school to provide the Father with information upon his request;

   ·The Mother denigrates the Father in the presence of the children.

9. This Contravention Application is referred to in Annexure “A” of the affidavit of the Mother’s solicitor, Peter Walter Carmont filed 30 August 2013, headed “Court Proceedings/Applications”.  The Father and to a lesser extent the Mother, have each instituted numerous proceedings the cumulative result of which has been a history of excessive court applications.

10. It is quite clear at this stage that the Father does not have any contact with either of the children.  He alleges, as I infer from his material, that this is the result of the Mother’s endeavour to alienate the children from the Father.

11. Since the Order was made, the child J has attained the age of 18 and from the comments made in Court by the Father on 24 February 2014, it appears that he no longer seeks contravention orders in respect of contact with J.  Even if the Father had not made that acknowledgement it can readily be concluded that there is no merit in the application as it concerns the now adult J.  Therefore, the Father’s contravention allegations in relation to J’s injury at school will not be discussed further.

12. It appears that the Father seeks contravention orders against the Mother in respect of the child T, who is currently 17 years of age.  

13. As I referred to in my Reasons for Judgment dated 6 December 2013, I made an Order on 3 September 2013 that if the Father wishes to write to T, he is to forward the correspondence to care of the Mother’s solicitor and once the correspondence is perused by the solicitor, it is to be forwarded to the child.  The Father did not endeavour to send any such correspondence until 20 November 2013.  The Mother’s solicitor quite properly forwarded the letter to the child, to which the child replied to the solicitor, “Hi Peter, I have received this email.  However could not finish reading the letter as I believe none of what he is saying to be true.  So I do not wish to reply.  [T]”.

14. This only reinforces the view of the Father that he no longer has any contact with the child T and, moreover, that T has elected not to communicate with him.  The child has not been living with the Mother for some time and notwithstanding her clear view not to have any contact with the Father, he insists on persevering with his Application for Contravention.

15. The Father claims that the Mother has been endeavouring to alienate the children and that as a result thereof, he no longer has contact with the children. In particular, he sets out in his Application that the Mother moved the children to various residences in an attempt to hide them from the Father. Further, that the Mother then failed to inform the Father of the address of the children as he claims is required by her under Order 1 of the Order.

16. Despite the Order providing that the children live with the Father, they currently live independently of both the Mother and Father, this has been the case since 19 June 2012.

17. The children’s independent living arrangements came about after the Father claims he “moved” the children to the Mother’s residence at the end of May 2012.

18. However, the Mother claims that no arrangements were ever made between the Mother and the Father regarding the children coming to live with her.  The Mother alleges that on 21 May 2012 she received a telephone call from T after 9.00 pm saying, “Dad has kicked me out. I am in the street. Can you come and get me?”.

19. If these events are true, it is extremely concerning that the Father would force his children out of his home and just assume that the children were living with the Mother but not make any inquiries to confirm this until 44 days later – namely 5 July 2012.

20. The Mother alleges that the children sourced help from the Department of Communities, Child Safety and Disability Services (“the Department”) and Centrelink who provided them with the financial support to live with their older sibling, D.

21. Based on the conflictual evidence before me, I am unable to make a finding in regards to the events that led to the children moving out of the Father’s home.  I am however, satisfied that it was the children who made the choice to live independently of both the Mother and the Father.  I do not accept the Father’s position that this was all due to the Mother.  In my judgment, the children have clearly decided for themselves not to live with the Father.

22. Further, the child T is of an age where any attempt by the Mother to alienate her from the Father is inherently unlikely to enjoy success given T’s age and level of development in the period under discussion.

Alleged Contravention of Order 1

1. The Father claims that the Mother contravened Order 1 by failing to inform him of the children’s address. 

2. Order 1 does not in fact require notification.  Order 1 is directed to both parents having equal shared parental responsibility “for decisions in relation to….their living arrangements that may make it significantly more difficult for them to spend time with the parties or either of them”.

3. As already discussed in my Judgment, the children decided for themselves not to live with the Father.  There was no parental “decision” involved.  Moreover, in circumstances where the children apparently elected themselves not to spend time with or contact the Father it cannot be said it was the move that made it more difficult for the children to spend time with the Father.  Rather, it was the children’s decision.

4. It therefore cannot be said that the Mother contravened Order 1 by not informing the Father of the children’s address and this complaint is dismissed.

Alleged Contravention of Orders 7 and 8

1. The Father further alleges that the Mother contravened Orders 7 and 8.  In essence, the Orders provided that for 12 months the Mother’s partner Mr P not be present when the children are spending time with the Mother.

2. The Father sets out in his affidavit an incident that occurred on 23 October 2011 where the Mother’s partner was present when the children came to pick the Mother up from her home.

3. The Mother alleges in her affidavit that this incident was set up by the Father and refers to Annexure “C” of her affidavit where she diarised her version of the events in an email to her solicitor.

4. Based on the evidence presented before the Court, I am not satisfied that this incident amounts to a contravention of Orders 7 and 8.

5. From the Father’s material, this alleged contravention appears to be an isolated event, occurring only on one occasion.  I accept the view of the Mother set out in her Case Summary that the Order refers to occasions when the children are spending time with the Mother.  The Father’s allegation of this event does not fall within the scope of that Order, as the children were simply picking up the Mother from her home on their way to go shopping.  The time with the Mother was to be spent at the shopping centre, in the absence of her partner Mr P.

6. Based on the evidence, it seems to have been somewhat of an unfortunate coincidence that the Mother’s partner arrived home at the time the eldest child D’s car pulled up at the house.

7. If the Mother’s account of the events is true, it is not unreasonable to expect that the children may see the Mother’s partner in passing, in circumstances like those alleged by the Father, where the children were picking up the Mother from the home that her and her partner live in, to go and spend time with the Mother at an alternate location.

8. Based on the evidence, I am not of the view that the Mother intentionally failed or made no reasonable attempt to comply with Orders 7 and 8, as is required under s 70NAC of the Act.

9. The Father claims at paragraph 16 of his affidavit that the Mother failed to contact the children again until March 2013 following the abovementioned events of 23 October 2011.  However, in the next paragraph at 17, the Father admits that contact had recommenced on 6 March 2012, when the Mother sent him two text messages regarding contact with the child T.  The Father’s contradictory statements lead me to question the reliability of the Father’s account of events.  The general impression that I get from the Father’s material and conduct is that he is willing to make sweeping statements about the failures of the Mother’s conduct, however he is unable to provide evidence to support such claims.   

10. The Father further alleges that the Mother contravened Order 8(b) by failing to text the Father to inform him of arrangements for contact with T.

11. The Father deposes in his affidavit that “the respondent mother only ever sent me 2 text messages regarding contact with [T] once contact started again. They were both on the 6 March 2012”.

12. This is the only evidence that the Father put forward to support his contention that the Mother contravened Order 8(b).  There is no evidence of occasions where the Mother spent time with the child and did not inform the Father. From the evidence presented to this Court, it could be the case that the Mother only had contact with T on 6 March 2012, and complied with the Order by informing the Father.  Based on this, there is insufficient evidence for me to make a finding that the Mother has contravened Order 8(b).

13. I also note that the Order specifically expressed that the purpose of informing the Father of such arrangements was for safety and courtesy reasons [my emphasis].  In light of the fact that the Orders were no longer being given effect insofar as the fact that the child T was no longer living with the Father, this requirement seems void in the circumstances.

14. These alleged contraventions are not established.

Alleged Contravention of Order 11

1. The Father claims that the Mother contravened Order 11 alleging that the Mother had the children attend a psychologist without informing the Father and then failed to provide the details of the treating psychologist despite his request for the information.

2. The Mother contends in her Case Summary that the Father was well aware that the children were seeing a psychologist and sets out her reasons in her affidavit.  She further states that the psychologist was the same person who the children previously attended and was well known to the Father.

3. In the Mother’s affidavit filed 12 August 2013, she referred to Annexure “E” which is a Medical Certificate from T’s treating psychologist, Dr Q, confirming that the child had been a patient since 30 December 2011.  I do not understand why the Mother refused to simply provide the details of the psychologist at the Father’s request and avoid this unnecessary conflict, this behaviour is immature and uncooperative on the Mother’s part.

4. The evidence before me is that the child T began treatment by the psychologist in December 2011, about two months after the date of the Order, and although the Mother deposes that the Father was well aware of the visits, the Father claims he was unaware of the details of the psychologist, evidenced by his requests for information.  Order 11 requires that the parties notify each other of the names and addresses of any treating medical or health practitioner that the children attend.  The Mother failed to notify the Father in this regard.  There is thus a breach made out in this respect.

5. However, whilst I am satisfied that the Mother’s failure to notify constitutes a contravention, I am also satisfied by the Mother’s evidence referred to and the circumstances of the emerging breakdown of the relationship between the Father and T that the Mother has proven that she had a reasonable excuse for the contravention within the meaning of s 70NDA(c) of the Act.

6. Having found reasonable excuse, this count is dismissed.

Alleged Contravention of Order 12

1. The Father alleges that the Mother has contravened Order 12 by failing to authorise the school to provide information requested by the Father.

2. Order 12 provides that “…this order is sufficient authorisation to do so”. The Mother has not contravened this Order in that the Order did not require the Mother to authorise the school to provide information to the Father.  Provided that the information requested by the Father is within the school’s authority to afford under the school’s protocols and procedures, the Order itself is sufficient authority.  I am of the view that the Father fails to understand that perhaps the reason why the school refused to provide him with the information he requested was due to the fact that the information that the Father was requesting (medical records, doctor’s reports and insurance details) may not be information that the school could provide.  In any event this is matter for the school to address, not the Court.

3. I am not of the view that the Mother intentionally failed or made no reasonable attempt to comply with Order 12 as is required under s 70NAC of the Act for a contravention to be established.

Alleged Contravention of Order 15

1. The Father claims that the Mother denigrates him in the presence of the children.  The Father alleges that this is in contravention of Order 15 and sets out his reasons in his affidavit.

1. Considering the history of hostile litigation between the parties, it would come as no surprise to me if this were in fact the case.  However, based on the evidence presented to this Court, much of which is hearsay and uncorroborated, it appears to be a case of the Mother’s word against the Father’s.  Given these circumstances; the fact that the Father bears the onus of proof; and my doubts about the reliability of the Father as a witness, I am not persuaded that the Mother has contravened Order 15 on the uncorroborated evidence of the Father.

Conclusion re: Contravention Application

1. Having considered all of the evidence presented to the Court, I am unable to find that the Mother has contravened the Orders of O’Reilly J made by consent on 21 October 2011.  

The Mother’s Application

1. In circumstances where T is now 17 years of age and will attain her majority in less than 12 months hence, there is in my judgment, no merit in this application.

2. No court in future exercising jurisdiction under Part VII of the Act would legitimately exercise that jurisdiction in respect of a now 17 year old (and soon to be adult) who has been living independently of her parents (with the intervention of the Department) since mid-2012.

3. Even if a court could be persuaded to exercise jurisdiction, no final hearing or trial of any further application for parenting orders could be held in the normal course of listings before T attains her majority.

4. As there is no merit in the application it will be dismissed.

Outstanding school fees

1. When this matter came before me, the Mother raised an issue that there was some dispute between the parties in relation to the method of payment for the children’s outstanding school fees that the parties had been ordered to pay by a previous Order of this Court. At that time, I insisted that the issue be dealt with by the parties and that if the Father opposed the payment, that he file an affidavit with his reasons for opposing the payment. I gave the father four weeks notice to do so. It appears that the Father has not filed such material since that date, so I can only hope that the matter has been resolved.  In the event that it has not, due to the Father not litigating the issue, I consequently have no other course open to me other than to order that the money owing for school fees be paid.

Costs

1. In circumstances where the Mother was technically in breach of the Order but where I have determined that reasonable excuse has been established and where there is no substance in any sanction being imposed for that breach; and where otherwise there is no merit in the Father’s application; the most appropriate order as to costs is that there be no order as to costs.

Conclusion

1. All pending applications are to be dismissed and I order accordingly.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on <insert date judgment delivered>.

Associate: 

Date:  10 September 2014