Crestin and Crestin

[2008] FamCA 293

FAMILY COURT OF AUSTRALIA

CRESTIN & CRESTIN [2008] FamCA 293

FAMILY LAW – CONTRAVENTION – of court orders affecting a child

Family Laws Act 1975 (Cth)

APPLICANTS: Mr Crestin;
Mr and Mrs Crestin (Snr)

RESPONDENT: Mrs Crestin

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of NSW

FILE NUMBER: SYC 1894 of 2007

DATE DELIVERED: 31 March 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan JR

HEARING DATE: 31 March 2008

REPRESENTATION

COUNSEL FOR THE APPLICANTS: Mr Friedlander

SOLICITOR FOR THE APPLICANTS: Aubrey Brown Partners

FOR THE RESPONDENT: In person

Orders

THE COURT FOUND

1. That the mother has contravened orders made by this Court on 27 July 2007 as varied on 13 November 2007 by her actions on 21 December 2007, 4 January 2008 and 18 January 2008 without reasonable excuse.

THE COURT ORDERED

1. The proceedings are adjourned to the Judicial Registrar’s Call-over at 9:30 am on 12 May 2008.

1. That the costs of the parties be reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1894 of 2007

MR CRESTIN

MR AND MRS CRESTIN (SNR)

Applicants

And

MRS CRESTIN

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in relation to a boy, who was born in August 1999.  There have been a series of orders over time, some orders made on 1 February 2006 I think I was told in a Local Court, then some orders made on 27 July 2007 in the context of a less adversarial trial process before this court.  They provided that the child spend time with the father and the paternal grandparents on alternate weekends Friday to Monday and a lead-up program.  There was a report to be prepared.  The grandparents and the father were permitted to collect the child from the school.  The matter was adjourned to November. 

2. A report was prepared which raised a number of concerns, including concerns about things that were said in the course of the conference that were said to have been things worrying the boy.  They focused mainly on the question of conflict in the father's household which he shares with his parents.  The counsellor recommended that there be some counselling and indeed recommended that the focus in the initial instance be on a restoration of a proper relationship between the father and the boy, that the grandparents facilitate that and recommended that there be some professional assistance in relation to the matters within the father's household.  That was done I am told, and there is a report from Mr S, Consulting Psychologist, who says in effect that there are no anger issues and no serious pathology in anyone in the father's household.  

3. On 13 November there was a slight tweaking of the orders to provide for some block time at Christmas time, 21 December through to 24 December, and otherwise the orders of July were to continue.  In the meantime, I am told that there has been an appeal against the decision made in July.  That appeal has been heard and the Full Court has reserved in relation to that matter.  I am told that a stay was sought in relation to the orders and was refused.  Thus the orders stand and I am obliged to enforce them. 

4. This application is an application that the mother be dealt with for a breach of court order.  It was filed on 20 February 2008.  It is an application, rather unusually, by each of the three people in the father's household; the paternal grandmother, grandfather and the father.  It raises a number of allegations. In accordance with the usual arrangements to try and manage matters within the rules of this list (which have been spectacularly unsuccessful today), three allegations were selected on the basis that the applicants would not pursue the remainder; 21 December, 4 January, 18 January. The rules of this list envisage matters that take two hours and no more and yet I have spent about four hours on this today. 

5. The mother was informed of allegations that she contravened without reasonable excuse the two orders, one varying the other, in that she did not facilitate collection for the time to be spent with the father, commencing after school on 21 December 2007, that she failed to facilitate time commencing 4 pm on 4 January 2008 and 4 pm on 18 January 2008. 

6. She did not admit any of the allegations. She conceded service, knowledge of the orders, that the orders required her to facilitate the father’s time that she did not facilitate the time.  I ascertained from her that she had a reasonable excuse to put in relation to what she thought might have been a breach of the orders. 

7. The legislation provides that the onus falls to the mother to make the case.  In other words, she bears the onus on the civil standard of establishing that she has a reasonable excuse for breaching the orders.

8. The mother's excuse is that there is a history to this which involves a history of violence inflicted by the father on her.  She supports that with details of some events, refers to hospitalisation as a result of an assault, refers to the fact of an apprehended violence order, and it was conceded in the witness box that there was a further finding of a breach of an apprehended violence order whereby the father was placed on a bond for 24 months in relation to that. She says that the  history of the orders has been characterised by the father not always exercising time with the child.  The mother referred to some incidents whereby the child was returned early.  When it came to cross-examination of the mother in the period between July 2007 and November 2007 I was left with the impression that the time had generally been spent with the child.  There had been some arrangements to allow other things to happen, but, in general, the time had been spent.  Indeed the mother conceded in cross-examination that more often than not, the father exercised time in accordance with the previous orders. 

9. She says then that there were a series of incidents.  There was an occasion when the boy reported to her that he had overhead the paternal grandfather say some critical things about the mother.  The boy had been hiding behind the lounge.  There is some suggestion that on the same date the boy was injured, with different versions of events coming from the boy and from the paternal grandparents and the mother says she was told the boy was pushed over.  In any event, she says that the boy presented with carpet burns at least on his elbows.  

10. She says then there was a scene on 14 December 2007 when the paternal grandmother went to the school.  There had been a vigorous SMS campaign between the two of them, the mother insisting that she had said that she would be picking the child up on that day and the paternal grandmother not accepting that - the mother saying that a change of arrangements had been squared away with the father and the paternal grandmother not accepting that.  Obviously that is not the father's case.  The paternal grandmother went to the school and caused the boy to be taken out of class a little early.  She says that she did not want to speak with school staff about the orders in the presence of the boy and that the boy was taken away briefly.  There is a letter from the school.  Not all of it has come through in the copying, but the principal writes:

    On Friday afternoon 14 December there was a disagreement between [the paternal grandmother] and you over who was to collect [the child] from school and have him in their care for the weekend.  The school does not have the capacity or the mandate to interpret and enforce Family Court orders, but will endeavour to facilitate their compliance.  It is important to remove this source of conflict from the school for the concern of all involved, especially for the welfare of [the child].  The school requests an agreement from both parties of the actual date that [the child] is to be collected from the school by various parties so the situation that occurred on 14 December is not repeated in the immediate or long term future. 

11. Now, interestingly, the mother complains about a scene at the school.  There is no mention of that here.  What the principal is asking for is not that somebody does not collect the child, the Principal is asking that there be no dispute between the adults about who is to do it.  One could understand why that would be. 

12. The problem for the mother is this:  she does not think it is a good idea that the child go overnight to the home of the paternal grandparents.  She thinks that the father does not spend enough time with the child.  There is a problem of course for her in running a case about this because that means that her concerns about the father's violence are not the primary driver for these proceedings.  She thinks that the father does not spend enough time because when he has had a belated chance to spend more time, he has not taken advantage of it.  The mother is sick of the boy being upset.  The mother cites occasions when the boy has been returned home early.  She says that she is frustrated because she has tried to make arrangements to have discussions with the father and his family about this and that has not been possible. 

13. The breach is conceded and I am not satisfied that there is a reasonable excuse.  The examples given in the legislation are somebody not understanding their obligations under the orders; that does not apply here. The excuse the mother relies on is the other example in the legislation whereby there has been a breach of the orders because somebody believes that it is necessary to protect the health or safety of a person, including a child.  That is the mother's case.  She thinks that the child has been through too much and it is too distressing and therefore she has made it her business to ensure that the child does not go.

14. The evidence does not support that excuse.  There is nothing here from any independent source to suggest that the child's health is not as it should be.  There is no independent evidence to suggest that he is not meeting milestones in terms of his education.  The mother asserts it, but there is no evidence about it.  There is no evidence anywhere of the efforts the mother has made to cause the child to go.

15. Now, there might have been such efforts, but there is no evidence of them. There is no evidence of conversations where the mother said to the child, "Your father loves you.  Your grandmother loves you, your grandfather loves you.  I want you to go to spend time with them.  I don't want you to do anything else.  What can I do to make it easier for you?"  No evidence about it.  As I say, it might be that some of those things happened, but there is simply no evidence.  At the end of the day, as I said to the mother during the course of submissions, we have a system whereby a court makes orders and they have to be complied with.  In the circumstances whereby those orders have been left in place for whatever reason, it is my ongoing obligation to cause them to be complied with and there is not any objective evidence here to suggest they should not be complied with.  The mother's own case that she wants the child to go to the father and to have time with the father suggests that there is nothing of the importance as his health or safety in jeopardy if he does go.

16. I find that in relation to each of the breaches the mother has contravened the orders without reasonable excuse. 

17. I cannot make any consequential orders today because the boy is represented and his representative is not here.  Just because there has been a breach of the orders does not mean a problem does not exist, that no steps are needed to get things back on track. My feeling is that a program is needed involving the counsellor Ms K giving some assistance and talking to the boy, the boy's lawyer talking to the boy and the establishment of a collaborative plan for a reintroduction of time.  That is what I would think would be a sensible course.

18. Now, whether with the appeal and the final hearing all approaching, it is possible to do that or not, I do not know.  The boy is likely to be a very unhappy person sandwiched between people he loves and I do not know what the answer is.  Experts are paid to know the answer to this.  It could be that there is something genuinely wrong in the father's household.  It could be that the mother is overprotective and blowing things out of all proportion.  It could be that the boy just picks up that the mother does not like it when he goes to the father's household. This is not a broken refrigerator, you cannot just get a mechanic to have a look and say what is wrong. I would ask the parties to be patient. The child is not a baby, so he will be okay. We just need a plan of some sophistication. 

19. Efforts have been made in the past to take the human element out of the handovers and the report from the school suggests that was not a stunning success.  So it may be something else has to be done.  Or maybe it is as simple as Mr Friedlander says, that we just put in place a system whereby it is crystal clear who will collect the child on each occasion and that can be recorded for the school.  The other party would be restrained from attending, so there is no source of conflict and we are just left with the simple problem of the boy in the father's household.

20. The fact that the child was upset on that day suggests that there is a real problem. It is quite something for a child to hold out against people he loves when the person that is said to be manipulating him, just to take the worst case scenario, is not there. Eight year olds do not have much in the way of rights in our community.  We do not ask them if they want to go to school or to the doctor or anything else.  If the child was able to hold out against those in the father’s household and those at school when the mother is not present then something is going very wrong. 

21. I reserve the question of costs of today. 

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of Judicial Registrar Loughnan

Associate: 

Date:  1 May 2008