CURRIE & WILKINS
[2017] FamCA 624
•21 August 2017
FAMILY COURT OF AUSTRALIA
| CURRIE & WILKINS | [2017] FamCA 624 |
| FAMILY LAW – CHILDREN – Contravention- Where the father alleges that the mother has breached parenting orders-where the mother admits contravening the parenting orders but says that she had a reasonable excuse-where reasonable excuse is established-where the father’s time with the children is suspended |
| Family Law Act 1975 (Cth) |
| Banks & Banks (2015) FLC 93-637 Goode & Goode (2006) FLC 93-286 |
| APPLICANT: | Ms Currie |
| RESPONDENT: | Mr Wilkins |
| INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
| FILE NUMBER: | MLC | 44 | of | 2013 |
| DATE DELIVERED: | 21 August 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Macmillan J |
| HEARING DATE: | 1 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hoult |
| SOLICITOR FOR THE APPLICANT: | Farra Gesini Dunn |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Allen |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders made 1 August 2017
The father’s Contravention Application filed 11 July 2017 be dismissed.
IT IS FURTHER ORDERED THAT
All times be abridged for the father’s Applications for Contravention filed 25 July 2017.
The father’s Applications for Contravention filed 11 July 2016, 19 April 2017 and 25 July 2017 be dismissed.
The father’s Application in a Case filed 20 April 2017 seeking a review of the orders made by Registrar Field on 31 March 2017 be dismissed.
Until further order paragraphs 4 to 12 inclusive, 15 to 18 inclusive and 20 of the orders made in the Federal Circuit Court of Australia on 29 April 2017 be suspended.
The mother’s Application in a Case filed 19 July 2017 be otherwise dismissed.
The father’s Response to the mother’s Application in a Case, if filed, be dismissed.
The mother’s Initiating Application for final orders filed 27 April 2017 and the father’s Response thereto filed 17 August 2016 be adjourned for hearing in the Registrar’s Duty List at 9.30 am on 6 October 2017 for the purposes of directions for a final hearing.
The father appear or be represented at the hearing on 6 October 2017.
Until further order the father be and is hereby restrained from publishing, disseminating, uploading or otherwise releasing electronically or otherwise any video footage of the children recorded by the father during the children’s time with him since August 2016.
In the event that the father fails to appear or be represented at the hearing on 6 October 2017 the mother have liberty to apply for the matter to proceed on an undefended basis.
The costs of the mother and the Independent Children’s Lawyer of this day be reserved for determination at the final hearing.
As soon as practicable the mother cause a sealed copy of the orders made this day to be served upon the father by email addressed to ….
The Reasons for Judgment be reserved to a date to be fixed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Currie & Wilkins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 44 of 2013
| Ms Currie |
Applicant
And
| Mr Wilkins |
Respondent
REASONS FOR JUDGMENT
This matter was listed for hearing before me in the Judicial Duty List on 1 August 2017. It is a complicated matter, there being numerous contravention applications filed by the father, an Application in a Case filed by the father seeking the review of an order made by a Registrar for the release of documents produced pursuant to subpoena and an Application in a Case filed by the mother in which she seeks the suspension of the orders that provide for the children to spend time with the father. The father was also granted leave to file his Response to the mother’s Application in a Case and supporting affidavit in which he seeks, inter alia, interim orders for sole parental responsibility, that the children live with him and that the children not spend time with the mother until such time as she can convince the Court she understands the importance of the children’s relationship with the father.
The father is 49 years of age. He is in the process of establishing his own business. The mother is 46 years of age. The father and mother were married in 1997, separated finally in early 2009 and divorced in 2010. The children the subject of these proceedings are C and D who were born in 2002 and are 15 years of age and E and B who were born in 2004 and are 13 years of age.
The proceedings were commenced by the father in the Federal Circuit Court of Australia in 2013 and on 29 April 2014 the parties consented to final parenting orders (the “final orders”) which provided that they have equal shared parental responsibility for the children, that they live with the mother and that they spend time with the father as follows:
·From 4.30 pm on Friday until 5.00 pm Sunday each alternate weekend to be extended from the conclusion of school on Friday until the commencement of school on Monday commencing no earlier than 14 November 2014;
·Subject to the father’s work commitments from after school until 7.30 pm each alternate Wednesday;
·During the school holidays from either after school or 3.30 pm on the Friday of the children’s scheduled weekend time with the father until 3.30 pm on the following Monday and a further two nights per fortnight during school holidays as agreed by the parties and failing agreement from 3.30 pm Friday in the first week of the school term holidays to 3.30 pm on the following Wednesday save for the long summer vacation where the father’s additional time will commence in the first cycle after Boxing Day; and
·On special occasions including Christmas Day and Father’s Day.
The orders provide that when changeovers do not occur at school, they take place at the mother’s home at the commencement of time and at the father’s residence at its conclusion. Although it is not clear to me why, the mother has been driving to Melbourne in the early hours of Monday morning to collect the children and returning with them to J Town in time for them to start school, a significant commitment on her part.
These children have been the subject of proceedings in this Court since 2013, now over four years, and it is common ground that the final orders for the children to spend time with the father are not working, with both parties now seeking the discharge of those orders.
The father asserts that there have been some 169 breaches of orders with respect to the time the children spend with him. This includes the alleged breaches of the final orders set out in his applications for contravention filed on 22 October 2015, 26 October 2015 and 21 December 2015. Although I do not propose to go into the history of these applications for contravention in detail, it would appear that these applications may have been listed for hearing in the Federal Circuit Court on a number of occasions without being determined. Ultimately they were listed for hearing before Judge Wilson on 5 July 2016 who made orders by consent dismissing those applications. He further ordered, inter alia, that the mother comply with the final orders and that the parties commence reportable family therapy as soon as it could be accommodated.
Although counsel for the mother ultimately did not rely upon the s 11F report prepared by Ms G following her conference with the parties on 16 June 2016, in his reasons delivered on 5 July 2016 Judge Wilson referred to Ms G’s observations of the parties as follows:
…The memorandum of the family consultant dated 20 June 2016 tells of acrimony between the parents and of the absence of parental insight into parenting. The family consultant was critical about aspects of the father’s approach toward the mother but also to the children. The family consultant referred to the father’s anger, the explosive and unpredictable nature of his temper and that he responds to trivial events in a manner out of all proportion to the incident. The family consultant also made observations about the affection displayed by the father towards his children.
Judge Wilson described the father’s presentation before him during the hearing that day as “borderline rude”. I would describe the father’s conduct during the hearing before me as going well beyond that described by Judge Wilson. His anger was palpable and he was both rude and offensive when he perceived that his view of the matter might not be accepted. In my view, consistent with Ms G’s observations, his reactions were out of all proportion to the circumstances. For example, the father’s response was disproportionate when I indicated to him that I was satisfied that the mother had reasonable grounds for contravening the final orders on 3 May 2017. This was in circumstances where he had already cross-examined the mother about the two contraventions alleged in the first of his contravention applications and it was made clear to the father that he should continue with his cross-examination in relation to the remaining two contravention applications.
The father eventually left the Court but not before muttering words to the effect that I could “stick it up my arse”. In my view, this goes well beyond “borderline rude” and is not appropriate behaviour in a Court. What is of significant concern is that the father behaved this way in circumstances where one would expect him to have contained his behaviour raising the question of what his behaviour may be like where there are no such constraints. It is clear from the emails and texts that are in evidence before me that he treats the mother, her solicitor and the Independent Children’s Lawyer with similar abuse and contempt.
Judge Wilson said at paragraph 8 of his reasons when referring to the father’s allegations that the mother had contravened the final orders that “...as far as I can tell, that order has been ignored, or, worse deliberately disobeyed”. It is difficult to glean from his Honour’s reasons, particularly in circumstances where he points out the father’s applications for contravention had not been heard and determined and the evidence had not been tested, the basis upon which his Honour reached that conclusion.
Although the father took exception to the report prepared by Ms G or her being ordered to prepare a family report for the final hearing, each of the parties and the Independent Children’s Lawyer referred to and relied upon the reports prepared by Ms F, who was engaged to provide reportable family therapy. Ms F’s report was annexed to the affidavit of the Independent Children’s Lawyer filed 28 July 2017. In fact, the father submitted that Ms F should be engaged to prepare a family report for the final hearing.
Ms F in her first report dated 18 October 2016 said of the father as follows at paragraphs 14-15:
[The father] was presenting with a level of superiority in his attitude in the early session with the therapist….
[The father] sees himself as vindicated in his parenting approach of the children since the recent Court orders……[d]uring the session with [the father] he demonstrated minimal insight into his own behaviour and his contribution to the children’s responses.
In that same report, Ms F said of the mother as follows at paragraphs 22-25:
[The mother]’s presentation was cooperative and supportive of the children. She feels trapped into acquiescing to the current Court orders and felt the past history of the parents’ relationship and child relationship issues were dismissed and invalidated by the Court. She spoke of having been anxious about withholding the spending time with arrangements initially. She rationalised her decision to breach the Court Orders as a response to the children’s complaints about their father’s aggression and [B’s] anorexia and not eating at her father’s home.
[The mother] reiterated much of the information already available to the court through the 11F Memorandum of Child Inclusive Conference. [The mother] understood from the children that there [sic] their father was aggressive, angry and derogatory of her and the children, to the children resulting in the children becoming, anxious, difficult and resistance [sic] to ongoing contact.
[The mother] raised some risk issues which had been demonstrated by [the father] and these issues have been identified in the material. She identified that the time that [the father] was on remand for 35 days gave the children some breathing space. She also reported a poor and non-productive communication style which is only focused on text messages currently.
…[The mother] was aware of [the father]’ blame and focus on her as the protagonist in the dispute. [The mother], given her own experience of [the father], easily accepts the children’s complaints and anxieties about their father. She demonstrated a sensitivity to the children’s experience as being in tune with them.
Ms F’s observations of the mother and in particular of her being supportive of the children is consistent with my observations of the mother’s evidence.
Ms F said in summary as follows at paragraphs 59-60 and 62-63:
…[the father]’ view to put aside past historical behaviours is not only naïve but from the children’s recent experience, if accepted, he is unable to be different. [The father] expects the children and the mother to ignore past behaviours, however if the children’s recent experiences are to be accepted then [the father] is still sabotaging in his own lack of containment.
[the father] has a sense of entitlement and a sense of right as to how he wants the children to accept his authority and behaviour. This is contradictory in that he has an expectation of the children and their mother to demonstrate positivity towards him, and if his responses to [C], if the children’s versions are accepted, is negative this is not conducive to building a positive relationship. [The mother] has clearly understood that she has to facilitate the spending time with arrangement. If the children report negative experiences, then it is difficult for her to see any positives in the experience of the spending time with regime.
…
There is concern however that the changeover arrangements are not conducive to the children’s arrangements. It is understood [the mother] travels from [J Town] to collect the children from [Suburb K] on Monday morning to take them back to their J Town [sic] to their schools whilst [the father] remains in his [Suburb K] home. Such early morning travel of up to 2 hours is not conducive to children’s schooling and learning development. This area may need to be revisited by the parents at [sic] their legal representatives and the court.
All the children will benefit by building their relationship with their father by his engagement in their activities and this could create a shared experience which in many ways can achieve bonding and acceptance and a uniqueness in relationships. The extracurricular activities, provide such a possibility. The children do not regularly just talk to their father, rather they would like to engage in an activity based relationship. Not only does this minimise opportunities for aggression and stress, but it creates a new unique relationship that is a shared experience. Hence [Mr Wilkin’s] [sic] reluctance to engage with at least some of the training and extracurricular activities is disappointing as he is missing the very opportunity these children now need to renegotiate and redevelop a different relationship with him… It is thus suggested that [the father] consider the comments made in regard to the extra activities for the children rather than seeing them as impacting upon is time with the children.
In my view Ms F’s observations of the father are consistent with the history of the proceedings since 5 July 2016 (when his Honour dismissed the father’s previous contravention applications by consent), his Application for Contravention filed the following week in relation to an alleged contravention the day after that hearing, his Application for Contempt filed 9 January 2017, the two applications for contravention filed 19 April 2017 and the four applications for contravention filed 25 July 2017.
During this time, the father has also objected to the release of documents produced pursuant to subpoena by Victoria Police and has filed an Application in a Case for a review of the Registrar’s decision when that objection was not upheld. The documents which he did not want released were documents produced by Victoria Police in relation to charges he is facing in the County Court for the breach of an Intervention Order obtained by his former partner and in relation to which he spent some 35 days on remand in late 2015. It is difficult to see how the father could have objected to the release of those documents on the grounds of relevance.
The father also sought and was given leave to file a Response to the mother’s Application in a Case filed 19 July 2017 in which he seeks orders for sole parental responsibility and for the children to live with him. The father’s various applications are all supported by separate affidavits which are in some cases voluminous, annex inadmissible material and are repetitious.
The father’s four most recent contravention applications and his Response to an Application in a Case have only recently been filed and as a result the mother had not had the opportunity to file any answering material. On that basis, the mother gave oral evidence in chief in relation to her reasons for having contravened the final orders and also relied upon the affidavit filed on her behalf in support of her Application in a Case seeking to suspend those orders.
The father, having left the Court before the conclusion of the hearing I dismissed his contravention applications, suspended the final orders with respect to the children’s time with the father and reserved my reasons. These are those reasons. However, although the father abandoned his applications and the mother’s application was then undefended the parties, and in particular the father, had filed affidavits in support of their respective cases and the mother had given both oral evidence in chief and had been cross-examined by the father. As a consequence, I am able to make findings with respect to the contravention applications and the mother’s Application in a Case filed 19 July 2017 and determine those applications on their merits. Albeit that the father had left and had not cross-examined the mother with respect to the last two of those contravention applications, given oral evidence or been cross-examined, the evidence and in particular the letters and emails relied upon by both parties largely speak for themselves.
Legal Principles
Pursuant to s 70NAC of the Family Law Act 1975 (Cth) (“the Act”) a person is taken to have contravened a parenting order if and only if he or she has intentionally failed to comply with that order or made no reasonable attempt to comply with the order. The onus is on the father to establish on the balance of probabilities that the order has been contravened. The mother concedes that she has contravened the final orders. It is her case that she had a reasonable excuse for doing so. In these circumstances, the onus shifts to the mother to prove on the balance of probabilities that she had a reasonable excuse on each of the occasions she concedes she has contravened the final orders.
Section 70NAE of the Act sets out various circumstances, albeit the Court is not limited to those circumstances, where a person may be taken to have a reasonable excuse for contravening an order.
The terms of s 70NAE(5) are particularly relevant to this case and it provides as follows:
(5) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
The health of the children, particularly B who has been diagnosed with anorexia nervosa, the children’s safety and their welfare generally are issues that are pivotal to the determination in this case of whether the mother had a reasonable excuse for contravening the orders.
The First Contravention Application in relation to B’s anorexia (December 2016-January 2017)
In the first of the contravention applications filed 19 April 2017 the father alleged that the mother had, without reasonable excuse, withheld the child B from 3.30 pm on 30 December 2016 until 3.30 pm on 4 January 2017 and from 3.30 pm on 13 January 2017 until 5.00 pm on 16 January 2017.
Although the other three children spent time with the father according to the orders, the mother conceded that she had not made B available as alleged by the father. With respect to the second period of those contraventions (13-16 January 2017), it was common ground that B had spent the last two nights of the five night block holiday period referred to in the final orders with the father.
The mother in her Affidavit filed 19 July 2017 deposed with respect to the first of these contraventions as follows at paragraph 47:
On 27 December 2016, [B] attended on her weekly visit with [Dr L]. At the time, [B] had steadily lost weight over a number of months. I was advised by [Dr L] that [B] needed to remain in a stable predictable environment to focus on rebuilding her weight.
Although the father, in correspondence to the mother’s solicitor, refers to B as having an “attention seeking disorder” rather than anorexia nervosa, there is no medical evidence supporting that assertion. To the contrary, there is also no dispute that B was diagnosed with anorexia nervosa on 15 September 2015, leading to her hospitalisation in late 2015. B attends for treatment at the M Hospital and attends upon her general practitioner Dr L for weekly monitoring. B has been given a meal plan which requires her to eat six meals a day, with dairy to be included in four of those meals.
The mother annexed a letter from Dr L dated 29 December 2016 to her Affidavit. Dr L said in that letter as follows:
This is to certify that [B] attends myself as her regular GP.
I can confirm that she is currently acutely medically unwell and is advised to continue her care/treatment at her regular home on medical grounds.
I confirm that she has been diagnosed with Anorexia Nervosa and presently requires regular attendance to monitor her weight and nutrition with myself.
She is also under specialist care at [M] Hospital.
Her medical situation is under regular ongoing review.
The mother further deposes that on 29 December 2016 she forwarded an email to the father which read as follows:
[Mr Wilkins], [B] has had a decline in her weight over the past few months. She has recently had weekly health checks at the GP. Given her current struggles in returning to a maintenance weight range, it is the Doctors recommendation that she stay in a stable predictable environment focused on rebuilding her weight.
For this reason she will not be coming with the other children on Friday for a 5 night visitation with you.
There followed an exchange of emails between the father and the mother, with the father complaining about the mother taking B to the doctor without telling him, warning the mother about the consequences of disobeying the orders, and insisting that there was no reason why “I can’t monitor [B’s] food plan (whatever this may be because you are denying my court ordered right to be involved in the treatment of our children).”
Later that same day the mother responded to the father as follows:
[Mr Wilkins], I have read your emails. I am not withholding the children, …([C]), [D] and [E] will be ready at 3.30 tomorrow. I am just trying to act in [B’s] best interests and following her General Practitioners advice, put simply, she is not well enough to be away from home for an extended period at this time. I have attached a letter from [Dr L], you are free to contact him at J Town Medical Centre should you so desire. [B] will be attending for another check up tomorrow after which I can inform you of her current wellbeing. [Ms Currie].
The mother thereafter received the following email from the father:
[Ms Currie], I will put this very simply for you this time. As previously advised, you require the courts approval to make any changes to the current Orders. I am more than capable of looking after [B].
Nothing your doctor has suggested says that [B] should not attend on my weekend, or that I’m not capable of facilitating this “event”.
Regardless of your or his “thoughts”, it is not for you both to decide.
I find it extraordinary that you continue to do as you please, and deliberately disobey the Orders.
See you in court-I will now push for incarceration for your blatent [sic] and continued disregard. (emphasis added)
Later the same day the father sent the mother a further email which he said as follows:
[Ms Currie], Could you also have [Dr L] explain why [B] cannot receive support from me-her other parent.
Acutely medically unwell? Really?
Is that how [B] presented on Xmas eve and Xmas day to myself?
I have various videos and footage in my possession to suggest otherwise. [My parents also have footage as does [Ms N] and [Ms O]].
Her food intake was extremely good also.
The doctors letter is generic and I find it extraordinary that [B] is not seeing a specialist.
You also know that your thoughts/decision (including your GP’s) will not be enough to support your behaviour before a judge.
Thanks
The father followed this with a text message that same day which read as follows:
The doctors letter does not say [B] can’t go to my house at all, as my house is also [B’s] regular house. Obviously your doctor is too scared to write or provide anything further.
Like I said though, you know my intention, so dig your grave if that’s what you want to do.
Spend as much money as you want defending your actions, but the money would be better spent on special medical assistance in the private sector.
I have a strong case to file contempt papers for withholding information regarding [B’s] health but will include this if she is not made available tomorrow.
The mother responded to the father by email that same day as follows:
Whilst [B] was in hospital, and post discharge, you had the opportunity to take part in her therapy and learn to refeed her, however, you refused to take part.
You have previously represented that you have [B’s] meal plan, and I also supplied a sample of what she has at home, yet the children all report she does not have 6 meals a day when in your care.
[B’s] weight consistently falls after time with you resulting in a need for her to be refed when she returns home. This cycle of weight loss and gain is not good for her health.
She has never had breakfast when I collect her on Monday mornings for school, and the packed lunch is inadequate for her needs.
Of particular concern was her time in your care on December 2-5 when she vomited repeatedly-you yelled at her for getting vomit on her bed-she was not eating and has been significantly more difficult to feed since-you did not inform me of her illness.
[B] does not partake in regular exercise and has to have extra sustenance if she does any activities.
If she continues to lose weight it will impact her greatly.
I am, to put it simply, trying to put [B’s] best interests first.
Her Doctors opinion should be taken seriously.
The Independent Children’s Lawyer had been copied into some, if not all of the parties’ email exchange. On 30 December 2016 the Independent Children’s Lawyer forwarded the following email to the parties:
Dear [the father], I note recent correspondence. If not done already, please contact [B’s] GP today to discuss her current health and needs. [The mother] has raised concerns about consistency of care for [B]. I have previously requested that rather than entering into communication with each other that does not resolve issues for [B], each parent follow the advice of [B’s] treaters in order to ensure consistency of care.
Regardless of the opinion or view of either parent about the conduct of the other, the priority and responsibility of each parent is to ensure that [B’s] health is properly maintained. If you cannot work together as parents to do this, then you must each strictly follow the advice of her treating health professionals. At a minimum there must be consistency of care for [B]. She must attend all appointments as required. Each parent must inform themselves by communicating with [B’s] treaters and follow their advice to assist her recovery.
The father’s response was as follows:
[Independent Children’s Lawyer]
Your biased view is noted.
Unfortunately, we can’t take anything you say seriously, as you have never constructively tried to assist in any way for the children to have a relationship with myself. This was evident over the course of this year and His Honour did not agree with you at various hearings on any issues you raised (or proposed).
A GP provides general health treatment, and is not there to provide specific mental health treatment. [B] can be weighed at any GP, including my GP. It’s not a valid reason to withhold her from a relationship with myself.
[Ms Currie’s] GP is not a specialist, and provided a generic letter after the fact. That is, [Ms Currie’s] went to her GP yesterday morning to get a letter written for [B] after I sent emails about the matter. Prior to this, no literature had been provided to myself. A GP usually refers patients to specialists. Why have the specialists disappeared and not being utilised? In any event, [B] is entitled to have a relationship with myself (her father) whether she is ill or not. I will also point out that the above behaviour of not notifying myself is CONTEMPT.
Moving forward, you also put this in the hands of His Honour. His Honour has stated that the medical professionals that are involved in the assistance of the children don’t have all the facts. And you have shown that you are incapable of providing an unbiased account of my capability. And that is the way it shall move forward in this instance. I can’t be satisfied that you have communicated with the Doctor my capability to support [B] in this instance. Should the good doctor have any concerns, I am more than prepared to discuss these with him.
Consistency of care you also refer to-we all know [Ms Currie] has embellished story after story for 8 long years. I suggest you re-read my Affidavit of 17 June 2016 which was relied upon by His Honour for a ruling in regards to the children’s relationship with myself. I have continually advised that I keep journals of all food intake, so at this stage my word is better evidence than [Ms Currie’s] hearsay.
Nevertheless, I note that [B] has bigger issues than food intake. I need to be involved with her rehabilitation for the underlying issues that are at stake. That is, her mental fragility.
In the meantime, if [B] is not made available during my time (this afternoon), I will be lodging a contempt of court application as His Honour stipulated.
I can only assume that the father’s repeated reference to a contempt application arises from the following orders made by Judge Wilson on 24 August 2016:
2.Forthwith, the mother is to comply with the orders made by His Honour Judge Burchardt on 29 April 2014.
3.In the event of non-compliance by the mother with order 2 herein, the mother may be dealt with for contempt at the next adjourned date.
On 9 January 2017 the father did file an application for the mother to be dealt with for contempt, which came on for hearing before Johns J in the Judicial Duty List on 7 March 2017. On that date her Honour found that the evidence did not support an Application for Contempt distinct from an Application for Contravention, and the father’s Application for Contempt was struck out. The evidence was essentially the same evidence upon which the father now relies in support of the first of the contraventions in his first Application for Contravention.
Although the father challenged the mother’s approach to B’s treatment in cross-examination, in my view without substance, he did not dispute what she said had occurred and although the evidence suggests that B’s weight does fluctuate, the matters the father put to the mother about her weight ultimately confirmed that subject to those fluctuations, she had been losing weight as the mother deposed.
I found the mother throughout her evidence to be a thoughtful and measured witness, doing her best to answer the father’s questions truthfully in circumstances where, given his aggressive manner and demeanour, it could not have been easy for her to do so. The father’s affidavits, his emails to the mother, her solicitor and the Independent Children’s Lawyer and his cross-examination of the mother were, in my view, focused primarily on vindicating his position rather than focused on the needs of his children, which accords with Ms F’s observations of the father. I was left with little confidence that the father had any insight into the needs of the children or that he was able to prioritise their needs over his own needs, in particular his need for vindication or that in those circumstances his evidence was likely to be reliable..
Having regard to my reservations about the his evidence I note although the father said that he was able to care for B and follow her meal plan, he also said in one of the emails he sent to the mother that she had not provided him with the meal plan. The mother for her part replied by email and indicated that she had not only provided the father with a meal plan, but had also provided him with some sample meals. In my view what the father said to the mother about the alleged lack of meal plan supports the mother’s evidence as to what she says the children have told her about the father not following B’s meal plan when she is in his care. If the father alleges he did not have a meal plan, it is difficult to envisage how it could possibly have been followed.
In all of the circumstances, I am satisfied on the balance of probabilities that the mother did have a reasonable excuse for contravening the orders with respect to B on 30 December 2016. The very fact that the mother facilitated the other three children spending time with the father in accordance with the orders lends weight to her evidence that her concerns were related to B’s health and welfare, rather than an attempt to frustrate her relationship with the father.
The second of the contraventions relied upon by the father in this application was that the mother had, without reasonable excuse, withheld B from 3.30 pm on 13 January 2017 until 5.00 pm on 16 January 2017. The mother deposes that although B had remained at home with her during the time the other children spent with the father, she was still not putting on weight and when she was weighed by Dr L on 9 January 2017, her weight was only 38.4 kilograms. Pursuant to the orders, the children were due to spend time with the father for five nights commencing on 13 January 2017. On 9 January 2017 the mother received an email from the father which said as follows:
[Ms Currie]
I would like to know if [B] will be made available this Friday.
If not, I will be filing a further contempt application.
Thanks.
As previously referred to, the father filed an Application for Contempt with respect to the previous contravention on 9 January 2017.
The mother says that “[a]fter a few days of monitoring [B’s] progress she was still not gaining enough weight. As a result I made the decision not to send [B] for the five night block with [Mr Wilkins]” and that on 12 January 2017 she instructed her solicitors to inform the father of her decision. The letter from the mother’s solicitors to the father read as follows:
We refer to your email of Tuesday, 10 January 2017.
Pursuant to the current Orders, the children are to spend time with you from this Friday, 13 January 2017 until Wednesday, 20 January 2017. [D, C and E] will be available to spend this time with you.
We are further instructed that [B’s] current weight is 38.4 kg (approximately 3 kilograms under what should be her maintainable weight). As you are already aware, [Dr L] has advised that at this stage, B is to continue her care, treatment and food plan at our client’s home and not spend 5 consecutive nights away. We note that our client has previously provided you with the letter of advice from [Dr L] and that you have discussed the matter with [Dr L] personally. To ensure that [B] has the best chance of gaining weight, our client intends to follow the advice of [Dr L].
Our client instructs that you have a family therapy appointment with [Ms F] on either Monday, 16 January 2017 or Tuesday, 17 January 2017. In light of this, our client proposes to drive [B] to [Ms F’s] office so that she can attend that appointment with you and her siblings. [B] can then spend the remaining one or two nights with you and return to our client together with her siblings.
Please provide us with the date and time of your appointment so that our client can make appropriate arrangements to ensure that [B] attends.
It is common ground that B spent the last two nights of that five night period with the father and the other children..
I am satisfied that for all of the reasons previously referred to with respect to the earlier period of holiday time, that the mother was genuinely concerned for B’s health and well-being and that there was a reasonable basis for that concern. In this case, not only did the other three children spend time with the father in accordance with the order, but the mother also facilitated B spending time with the father, albeit not for the whole of the five-day period. I am satisfied that the mother had a reasonable excuse for contravening the order on this occasion and that in those circumstances, even if the father had not left the Court prior to the conclusion of the proceedings, that first application filed 19 April 2017 should be dismissed on its merits.
The Second Contravention Application in relation to D’s Sports Competition (24-25 March 2017)
In the second Application for Contravention filed by the father on 19 April 2017 the father alleged that the mother had, without reasonable excuse, withheld the child D from the father from 3.00 pm on 24 March 2017 until 3.48 pm on 25 March 2017. The mother deposes that on 20 March 2017 she received a letter from P School dated 17 March 2017 advising her that D had been selected to represent the School in team sports on 23 March 2017 and 25 March 2017. The mother deposed that when D came home on 20 March 2017 “...he was excited with having been selected saying to me words to the effect ‘look mum, it’s at [Q Club] we compete against other schools and we go on a bus there’.” Although the first session was during the child’s time with the mother, the second session, which was a Saturday, was during the children’s time with the father.
The mother says that she emailed the father the same day as follows:
[Mr Wilkins]
[D] has been selected for his school … team-it’s a 2 day championship held at the [Q] Club-he is [part of a team] so needs to accompany [his team].
I have attached the letter he brought home today.
As the team travel together from school on Saturday and leave at 7 am it seems most practical that he stay home Friday night and I can return him to your place after [the competition] has finished.
The father replied by email as follows:
[Ms Currie],
It is my time with the children.
I will be picking the kids up as per normal. I have things organised for their birthday.
Thanks.
The mother deposed to telling D that she had emailed the father about the competition but that he had other plans for the children. She says that before she could say anything further, he turned away, walked to his room and closed his door and that she could hear him crying in his bedroom. She said that when she again told D that the father had other plans he said “I want to [compete], I’m not going to dad”.
The mother sent a further email to the father on 21 March 2017 as follows:
[Mr Wilkins],
[D’s] selection in the team is very important to him as he has worked very hard to be selected. If he doesn’t attend, Ds [sic] [team-mates] will be without a [member] and will not be able to participate either. D has told me that he really wants to attend not only for himself, but so that he doesn’t let his team down. As I suggested in my last email, because the team leave together from school at 7:00 am on Saturday morning, it seems more practical for [D] to stay with me on Friday night, I will then take him to school so that he can travel on the bus with his team. After the event I can then collect him and drop him to you.
If you like, I could even talk to the school to see if they will allow you to take [D] to the [Q] Club directly and he can meet the team there.
As I said, this is important for [D]. Let me know what you would like to do.
The father responded to that email on 22 March 2017 as follows :
[Ms Currie]
Just as important is his relationship with me-something you fail to understand and encourage. And at this stage of our relationship I am hesitant at putting it second.
I am sure that in time [D] will come to understand my decision to prioritise our relationship at this point in time.
Therefore, I will not be making changes to the arrangements this weekend. The orders of 29 April 2014 stand.
Thanks
The mother says that on 22 March 2017 the father rang D and C for their birthday. She said that following that conversation, D said to her words to the effect “I told dad I wanted to [compete] for school and he said I’m not going to discuss it with you and I don’t think it’s appropriate I’ll speak to you Friday”. She said D then said to her words to the effect “I won’t go to dads”.
The mother further deposes that on Friday 24 March 2017 D caught the bus home after school. This is consistent with the father’s evidence that he was not present when he collected the other three children from school. She said that when she spoke to D about this he said words to the effect “I’m not going to dads, you can’t take [sic] me I’m not going I’m going [to compete]”.
There is no dispute that after D had competed in the sporting competition, the mother delivered him to the father’s home where he remained for the balance of that weekend in accordance with the orders.
The tenor of the father’s case is not that this did not occur, but that the fact that the mother allowed D to participate in the sporting competition is evidence of another attempt on her part to interfere in his relationship with the children generally, and D in particular, and to alienate the children from him. I am satisfied that to the contrary, it is the father’s unreasonableness in circumstances such as these which is likely to damage his relationship with the children. Apart from insisting that it was more important for D to spend time with him, instead of compete in the competition, the father otherwise did not provide any explanation for why he could not have accommodated what I am satisfied were D’s reasonable needs and wishes and/or take him to the competition himself. It is difficult to comprehend, particularly in light of Ms F’s recommendation that the father engage with the children in their activities, how the father would not have understood that it was not only in D’s best interests to participate in the competition, but also that this was an opportunity for him to engage with D and share the experience.
Not only did the father not participate, but as a result of his refusal to do so the mother was required to drive from J Town to the Q Club and then to Suburb K in order to deliver D to the father’s home after the competition. I am satisfied on the balance of probabilities, based upon the evidence before me that, as observed by Ms F, the mother “has clearly understood that she has to facilitate the spending time with arrangement” and that on this occasion, the mother went out of her way to both accommodate D’s needs and also facilitate his time with the father.
The father’s case ignores the fact that D is 15 years of age and is able to express his views and perhaps even more importantly, does not address how the mother might force a child of his age to go with the father against his wishes. It also highlights the observation made by Ms F that the father demonstrates minimal insight into his own behaviour and how that might impact upon his relationship with the children. In my view, this Application for Contravention is another example of what Ms F described as the father’s “need to be validated and his view being accepted and believed” and his “sense of entitlement and a sense of right as to how he wants the children to accept his authority and behaviour.”
On this basis, I am satisfied that the mother had a reasonable excuse for not delivering D to the father’s home until after the competition and the father’s second Application for Contravention filed 19 April 2017 not only having been abandoned by the father, has no merit.
The Third Contravention Application in relation to resumption of the father’s Wednesday night time with the children (3 May 2017)
The third Application for Contravention was one of four applications filed by the father on 25 July 2017. Although as previously referred to, this application was not listed for hearing until 3 October 2017, time was abridged so that all outstanding contraventions could be heard and determined allowing the matter to proceed to a final hearing as soon as practicably possible.
In this application, the father alleged that without having a reasonable excuse, the mother had withheld the children from the father from 3.00 pm until 7.30 pm on 3 May 2017. The mother gave evidence and it appears to be common ground that the father had not been availing himself of the mid-week time with the children for over two years.
On 24 April 2017 the father sent the following email to the mother:
[Ms Currie]
As the kids all go to one school and it’s easier to pick them up now, I am going to bring the kids to [Suburb K] for dinner as per the orders. You will need to pick them up, as per the orders.
The alternative is to have additional time in the school holidays, say 2 days.
Let me know.
Thanks
On 25 April 2017 the father sent a further email to the mother as follows:
I would like to re-commence tomorrow or next Wednesday.
Please advise.
On 25 April 2017 the mother replied to the father’s emails as follows:
[Mr Wilkins]
It has been over two years since you had a Wednesday night dinner with the children. [D] and [C] both have sporting commitments on Wednesday nights so they won’t be able to attend.
They’ve been participating in these sports for 4 years which has included Wednesday night participation for 2 years.
Previously you had dinner with them close to their home and returned them home afterwards as this arrangement works best for them, especially as they have school the next day.
If you would like to have dinner with them starting next week you will need to return them home by 7.30
It may be easier if you have dinner with them near our home to save on them having to travel too much on a mid-week school night
[Ms Currie]
Later that same day the father sent the following reply:
[Ms Currie]
As per the orders (17b), I will pick them up and have quality time at my residence. You (or your representative) will be required to pick them up.
I will recommence next Wednesday 3 May
Thanks
In his affidavit filed 25 July 2017 in support of this Application for Contravention the father further deposed as follows at paragraphs 25-26:
I find it extraordinary that after 8 years of separation I cannot enjoy any visitation without interference, or being told what the rules are according to [Ms Currie]. How can I build a relationship on that basis.
I want to bring the children back to my place, cook them dinner, and where possible help them with their homework.
Although there is some dispute as to the reasons why the children had not been spending mid-week time, there was no dispute that it had not been taking place for around two years.
The order also does not say that the time after school must be spent at the father’s home in Suburb K. It is difficult to see how that could ever have been practical. I note that the mother has had an Initiating Application on foot since April 2016 seeking inter alia that the final orders be discharged.
This is yet another example of the father’s need to make a point in total disregard of his children’s welfare. The order in question, if complied with, would require the father to collect the children from school in J Town and drive to Suburb K, a drive of approximately an hour and a half, if not more, depending on the traffic and the mother driving from J Town to Suburb K to collect them at 7.30 pm. The children would then be spending approximately another hour and a half, at a minimum, in the car for the return trip.
The father, in filing this application, appears to have completely disregarded Ms F’s observations with respect to the impact of the travel arrangements after weekend time on the children, albeit at the time she made those observations the children had not been spending mid-week time with the father.
There is no evidence to suggest that the father proposed any arrangement for mid-week time with the children more conducive to their welfare, such as a meal with them somewhere close to their home. To the contrary, it is clear from the evidence that he rejected what was, in my view, the mother’s reasonable proposal that he have dinner with the children in the vicinity of their home so as to avoid unnecessary travel. I am satisfied that the father was more intent on vindication than the children’s needs.
In my view, the mother’s refusal to accede to the father’s demands that the mid-week time be reinstated was totally reasonable in all of the circumstances, particularly so when the reinstatement of that time was clearly contrary to the children’s welfare. I am satisfied that the father’s Application for Contravention is in all of the circumstances, an abuse of process.
It was in these circumstances that I advised the father that even on his own evidence, I was satisfied that the mother had a reasonable excuse for not making the children available on this occasion and did not propose to permit cross-examination. Notwithstanding that, I indicated to the father that I would continue to hear the balance of his contravention applications the father left the Court.
The Fourth Contravention in relation to the Training Camp (19-22 May 2017)
In the second of his applications for contravention filed on 25 July 2017 the father alleged that the mother had, without reasonable excuse, withheld the children from 3.00 pm on 19 May 2017 until 7.00 am on 22 May 2017. As with the other contravention applications, there is much common ground with respect to what occurred, the dispute being how the mother’s actions are to be interpreted and what conclusion the Court should draw based upon those facts. The mother deposes that on 15 May 2017, she instructed her solicitors to write to the father to inform him that E, B and C had a compulsory sports training camp on the weekend of 19 May 2017. That letter read as follows:
We are instructed that [E], [B] and [C] have a compulsory … training camp next weekend, 19 May 2017 until Sunday 21 May 2017 in [R Town]. They have attended this camp every year for the past four years.
We enclose a copy of the letter received from [S College] in relation to the camp.
In light of this, the girls will not be available that weekend to spend time with you in accordance with the previous Orders. [D] has informed our client that he does not want to spend his usual time at your home this coming weekend without his sisters.
Our client suggests that you have make up time the following weekend commencing Friday, 26 May 2017. Please let us know if you agree.
The father responded to that letter as follows:
I am happy to do the change, however, I will choose the weekend for make-up time. I will advise in due course and give 1 weeks notice. I find it extraordinary that you advise on the same week as my time, because I am sure your client has known about the event for some time.
It is difficult to understand, in circumstances where the father had indicated he was happy to change weekends (albeit he was insistent that he should choose the make-up weekend and did not request make-up time until 1 July 2017) why after the event, he would then file an Application for Contravention. I am satisfied that in these circumstances, the mother had a reasonable excuse for not making the children available to spend time with the father. I am also satisfied that in these circumstances the father’s application is an abuse of process.
The Fifth Contravention Application relating to B’s weight loss and D’s illness (30 June 2017-5 July 2017)
The third of the father’s applications for contravention filed 25 July 2017 relates to what the father alleges was the mother having withheld both D and B from 3.30 pm on Friday 30 June 2017 until 3.30 pm Wednesday 5 July 2017.
The father relied upon, in support of his application, the letter forwarded to him by the mother’s solicitor dated 22 June 2017 which read as follows:
Our client instructs that the children are to commence their five night school holiday time with you next Friday, 30 June 2017.
We are further instructed that most recently [B’s] weight has dropped following time with you on the weekends of 2 June to 5 June 2017, and 16 June to 19 June 2017. Specifically, on these occasions:
1.On Monday, 29 May 2017, [B’s] weight was 40 kg. However, when she returned to our client following her weekend time with you from 2 June to 5 June 2017, her weight had dropped to 38.8 kg;
2.On Tuesday, 13 June 2017, [B’s] weight was 40.6 kg. However, when she returned to our client following her weekend time with you from 16 June to 19 June 2017, her weight had dropped to 37.8 kg
The above weights were taken during [B’s] regularly scheduled visits with her GP regarding the management of her anorexia.
In light of the above-mentioned weigh [sic] loss during her time with you, our client instructs that she does not consider it to be in [B’s] best interests to spend 5 consecutive nights with you during these upcoming school holidays and accordingly, she will not be attending. [E], [C] and [D] will still spend the five night holiday time with you.
The father also annexed to his affidavit a further letter he received from the mother’s solicitor dated 28 June 2017 which read as follows:
We refer to our letter dated 15 June 2017 and note that we have not received a response from you.
Given that [B’s] weight dropped considerably following her recent time with you, our client instructs that [B] will not be attending during the holiday period. However, [C], [E] and [D] will still be spending the upcoming holiday time with you.
We are instructed that [E] and [C] have [sports] training this coming Saturday, 1 July 2017. Please confirm that you will deliver [E] and [C] to their [sports] training at [S College] from 8:00 am until 2:00 pm.
Please let us know as soon as possible if you are unable to facilitate their attendance as our client will need to make alternative arrangements.
The father deposed that on 30 June 2017 he received an email from mother as follows:
[Mr Wilkins]
[D] has been home sick with abdominal pain today. If he is better I will bring him to [S College] tomorrow to rejoin the girls
The mother deposes that on 1 July 2017 after the commencement of his time with the children on 29 June 2017, the father sent an email to the mother’s solicitor as follows:
[Mr T]
Please be advised that I will be utilising my make-up time with this visit.
[B] was not made available, yet she is able to go to [sports] today. Another contravention will be filed. Making that 8 in total that will be requested to be heard.
[D] is still not with me as of 9.10 am (Saturday). I was advised at 2:40pm yesterday, when I was 10 minutes from the school that he would not be available because he had an upset stomach. This is becoming a regular occurrence and a deliberate attempt to ruin a relationship with the children, and vice versa. Why couldn’t I be afforded the decency of this knowledge in the morning so pick-up arrangements could be organised.
The father also annexed the exchange of emails passing between himself and the mother that followed which included, with respect to both the training and D’s health the following emails:
[Ms Currie]
If you agree to an additional day for my school holiday time being disrupted, then that will be okay.
Please advise your acceptance.
Thanks
…
[Mr Wilkins]
I will collect the girls at 6.30 tomorrow morning and take them to [S College]
..
[Ms Currie]
If you’re not going to facilitate the relationship between the children and me, then please don’t waste your time by coming to [Suburb K] tomorrow. We can deal with this in court.
…
[Mr Wilkins]
Its a compulsory training-they need to be there. It’s not about me facilitating a relationship its [sic] about you building one. If you are not going to take them i will bebthere [sic] at 6:30 am
…
I can’t build a relationship if I don’t see the children [Ms Currie].
That’s not happening because of your interference with the children’s time with me.
Don’t bother picking the children up.
They won’t be made available for this activity. I will instead use this time to build something with my children.
…
[Mr Wilkins]
The girls know its compulsory and know they will be letting their team down if they don’t go.
…
When will [D] be dropped at [Suburb K]?
I can look after a sick child.
…
As previously indicated the girls are required to be in [S College] today. I offered to bring [D] with me if he was feeling better. I will be in [S College] today. My intention was to take him with me. I will not be driving to [Suburb K] now.
The father also deposes that on 4 July 2017 he received a letter from the mother’s solicitors “regarding [D’s] illness from 4 days earlier”. That letter enclosed a copy of a letter from Dr L dated 30 June 2017 which said as follows:
This is to certify that Master [Wilkins] has presented today with acute abdominal pains.
He has been advised to rest at home pending results of the urgent pathology tests that have been arranged today.
The father responded as follows:
[Mr T]
I’ll make it simple for you.
I have make up time of my choice.
That was agreed and is being taken.
They will NOT be available until Saturday at 3:30 pm when OUR time concludes.
The letter regarding [D] is an after the event moment-he was going to be handed over on Saturday, but blackmail tactics were utilised.
A contravention will be forthcoming.
I will be answering no further documentation on this matter.
Thanks
On 5 July 2017 the mother sent the following email to the father:
[Mr Wilkins]
There has been no agreement to make up time taking place this week.
The children are expecting to come home today at 3.
I will be there to pick them up from your place at 3 today.
[Ms Currie]
The father responded as follows:
[Ms Currie]
Go through your lawyer.
I don’t require consent for makeup time.
See you in court.
Please do not contact me again. Everything is through your lawyer.
Thanks
Having regard to my earlier findings with respect to B’s health concerns, I am satisfied that the mother had a reasonable excuse for contravening the order with respect to B. Although the father left the Court before cross examining the mother with respect to this contravention, there is nothing in his affidavit disputing the advice he was given with respect to B’s weight loss on this occasion. I am also satisfied having regard to the medical certificate provided by Dr L, that the mother had a reasonable excuse for contravening the order with respect to D.
The Sixth Contravention Application: The incident at the father’s home and the father’s aggressive behaviour toward the children (14-17 July 2017)
In the final Application for Contravention filed by the father on 25 July 2017, the father alleged that the mother had, without reasonable excuse, withheld the children from him from 3.30 pm on Friday 14 July until 7.00 am Monday 17 July 2017. The father deposes that on 11 July 2017 he received the following email from the mother’s solicitors:
Our client instructs that she attended to collect [C] and [E] from your home on Wednesday, 5 July 2017. This was despite you advising the writer that you refused to return the children at that time however, our client attended anyway in case you changed your mind.
We are instructed that when the children came out to meet our client, they said to her that they did not have their school uniforms and books as you refused to allow them to take these items. Despite this, the children returned to your home to collect their belongings. Our client further instructs that when the children came back from collecting these items, they told our client that you had just:
1.Pushed [C], swore at her repeatedly and called her a “cunt”;
2.Taken [C’s] mobile phone and refused to return it to her. We are further instructed that you later accessed personal messages on this phone and referred to them in derogatory message correspondence directly with our client.
Our client instructs that the children have reported consistent aggressive behaviour from you towards them. Your behaviour has now escalated to the recent events over the past weekend. Our client is concerned about the children's ongoing physical safety and mental health when spending time with you.
For these reasons together with [B’s] health issues that are well documented, our client has decided that she can no longer send the children to spend time with you. Our client will be filing an application to suspend your time.
The mother in her affidavit in support of her Application in a Case to suspend the children’s time with the father deposes in relation to what she said occurred on 5 July 2017 when she went to the father’s home to collect the children as follows at paragraphs 19-25:
I arrived at [Mr Wilkins]’s apartment at approximately 3.00 pm pm [sic] on Wednesday, 5 July 2017. After arriving, my mother stood out of the car to wait for the girls. Because there was no available car park, I had to keep driving around the block for approximately 10 minutes. After driving around the block, I pulled over to the side and parked as we waited for the girls. I noticed a car park a few spaces behind me. I watched [C] and [E] exit that car. They were shortly followed by [Mr Wilkins’] sister [Ms U] ([Ms U]) and her children, [Ms O] and [Ms N] who were also in that same car ([Ms O] and [Ms N] are the children’s cousins from [Mr Wilkins’] side of the family). At the time, [Mr Wilkins] was standing in the entrance to his apartment building holding [C] and [E’s] school bags.
When [C] exited the car, I saw that she was crying.
I watched as [C] and [E] walked over to [Mr Wilkins] to collect their school bags. When [C] and [E] collected their bags, I observed and heard [Mr Wilkins] tell [C] words to the effect “you are a bitch and a disgrace”. I then observed and heard [Mr Wilkins] say to my mother “this is karma”. I heard this exchange as I was parked only approximately two metres away from them, and I was sitting in my car with the windows down.
When [C] and [E] came to meet me, [C] said to me words to the effect “Dad won’t let us have our school uniforms”. [C] and [E] were standing next to my car when [C] told me this. [Mr Wilkins], [Ms U], [Ms O] and [Ms N] were now all standing in the entrance to [Mr Wilkins’] apartment building. My mother turned to [Mr Wilkins] and asked for [C] and [E’s] belongings. It was at this point that [C] again started crying as she said to me words to the effect “my phone is not in my bag”.
After my mother asked for [C] and [E’s] belongings, [Ms U] walked over to my car window. I was sitting in the driver’s seat. I said to [Ms U] words to the effect “the girls need their stuff”. [Ms U] then walked back to [Mr Wilkins]. I did not hear the conversation between [Ms U] and [Mr Wilkins]. Shortly after their conversation, [Ms U] returned to my car and said to me words to the effect “the girls can come up and get their stuff”. In response, I turned to [C] and [E] who at this stage were sitting in the car and I said to them words to the effect “you can go and I will wait here for you”.
When [C] and [E] again returned to my car, they were both crying. I said to them words to the effect “What’s wrong?” [C] replied words to the effect that “we went back upstairs to get our uniform and I asked [E] to shut the door and dad said no, and that he didn’t give a fuck. Then dad walked off and I heard him tell [Ms U] I was a cunt because he yelled it out.” [E] also told me words to the effect “dad made us put our school uniforms on we were not allowed to come home in the clothes we had on”.
While she was still crying, [C] went on further to tell me words to the effect “dad took my phone and then told me that he did not have it when I asked for it back. [E] asked for him to give it back but he kept saying he didn’t have it. Dad then pushed me out of the front door and when I said goodbye he said get away, don’t touch me but he hugged [E] and said he loves [E] then he called me a coward.”
The mother also deposed that on their way home the children had described further incidents that had occurred during the time they had just spent with the father, including the incident at the shopping mall referred to by the father in his email dated 12 July 2017 to the Independent Children’s Lawyer. He also copied the mother’s solicitor into that email. The mother said that C had said words to the effect in relation to this incident as follows:
We were at a shopping centre with [Ms U], [Ms O] and [Ms N]. I got a bit upset at the shopping centre and started to cry and I went to the bathroom. In the bathroom a lady asked me if I was okay and I asked to ring you but her phone didn’t work. [Ms N] heard and told [Ms U]. When we got back to the car [Ms U] called me a disgrace. She then drove us back to dads and called him on the way on loud speaker. Dad said I was a bitch, a coward and disgraceful for talking to the lady.
The mother’s evidence is that C did not eat much for three days after this visit, that neither she nor E were sleeping well and that C said words to her to the effect “I am nervous about going to school, I don’t want dad to come to school” and that she “…can’t cope going there anymore, I’m scared of him, I can’t properly sleep there and I get blamed for everything. I’m not going back there again and I don’t want to see him again”. E is reported by the mother to have said “I’m scared dad will come to school to get us” and D has said words to the mother to the effect that “I’m never going back there”. Finally the mother reported that B had said words to the effect “I am scared that dad will hurt me, I’m not going”.
The mother caused her solicitors to write to the father to inform him that she would no longer facilitate his time with the children. The Independent Children’s Lawyer was copied into this correspondence. After receiving this letter from the mother’s solicitors the father forwarded the following email to the Independent Children’s Lawyer on 11 July 2017:
[Independent Children’s Lawyer]
What are you doing about this? Please advise before Friday. This is yet again another blatant contravention.
You have been aware of what is going on, and every visit is sabotaged deliberately and in a cavalier way.
The children were instructed to steal money and jewellery from instructions from their mother. I have the texts from [C’s] phone, and we will be requesting subpoenas doc’s for the above on The mother’s phone. The behaviour that is borne on these children from their mother is abuse at the highest level and we will be seeking the children be removed permanently from their mother. The harassment is relentless.
As to the current allegations, they are denied. I have video of every visit that will convey what I have been saying for 9 years-the children have no issues in my care.
My sister and her two daughters were present with regards to the allegations, and will provide a statement in due course.
Please advise that my visit will go ahead as per the orders.
The mother in her affidavit in support of her Application in a Case deposed with respect to some of the matters raised by the father as follows at paragraph 37:
In relation to [Mr Wilkins]’s allegation of [C] and [E] stealing, all of the children often spoke about the birthday and Christmas money they had been given by [Mr Wilkins’] parents. During their recent holiday time, [C] and [E] decided that they wanted to bring their money home. [C] and I had a text message conversation about this. I no longer have a copy of these text messages as I have broken my phone. In summary, [C] sent me a text message in which she asked where [D] kept his money as she would collect it for him. I responded to this message informing her where [D] kept his money. Ultimately [C] and [E] returned home with two $100 notes. This money has not been used by the children. I am otherwise unsure about the jewellery that [Mr Wilkins] claims the children stole from him as from what I have observed, they did not return home with any jewellery that they did not already have when they started their time with him.
The mother says that at 9.25 pm on 11 July 2017 she received a text message from the father as follows:
I’m going to subpoena your phone also-you are a cunt of a woman for what you are teaching the kids!! The phone data was awesome.
So game on at trial. I can’t wait to tear your fat arse apart.
Ps. [C] passcode was the letter “Z”. Bugger hey.
Pss. Please contravene next visit.
Although the mother did not set out all the correspondence, emails and text messages passing between her and the father and the father and the Independent Children’s Lawyer, she did set out in detail an email sent by the father to the Independent Children’s Lawyer and her solicitor at 2:00 pm on 12 July 2017 which read as follows:
[Independent Children’s Lawyer]
You have been provided with enough information to step in and ensure my relationship is not ruined YET AGAIN…
…
I cannot see how stealing belongings and money from my place with encouragement from the mother to [C] (via text) is not a reasonable excuse for me to not comply. But I follow process.
I have the texts from the last 3 visits, and I will be requesting that all texts to [C’s] phone (from the mother) are subpoenaed for trial.
The difference about this behaviour is that the children are involved personally and are being rewarded for information. They are also committing a crime. [C] has told my family and friends she did not have a phone, but unfortunately she has lied to everybody, and on this occasion left her phone under the bed. The children are being told by the mother about the court proceedings-I fail to see how this is acceptable.
I have 63 hours (4 pm Friday to 7 am Monday) continuous video footage from 2 separate cameras of MY time with the children commencing 24 August 2016 when contempt orders were requested. So approximately 20 visits, and enough to show consistency…
…
The abuse I have received from the other side will NEVER change. But when I put the entire history on the “[Wilkinskids]” website for the world to read, I will be victorious.
“[Wilkinskids]” will have the entire nine years of history from court-every document!
And I will get it number one on Google for father’s rights in court.
When the kids Google themselves, or their friends Google themselves [sic], the first hit for their name will be the [Wilkinskids] website.
This will detail every last allegation [Ms Currie] has made, and every defence we submitted…
…
I could make a case that the ICL and FGD are in contempt also. There is no doubt you have assisted where we are today. All children have issues, I am blamed for these issues, yet I’ve probably had an average 5% contact over 9 long years.
Sadly, most lawyers are more interested in collecting a fee. They are not interested about doing things ethically.
I will seek incarceration of current orders if I he [sic] children are not handed over this week.
I have a very strong case-there is no reasonable excuse. There never has been, and Wilson was all over this. FGD tried everything with him, and failed.
…
My sister will present evidence trial, as she was well aware of [C’s] appalling behaviour at [Suburb V] Plaza only 1 hour before the children were returned. [C] ran away and was asking strangers to call her mum. She was also yelling and screaming.
All behaviour that has been encouraged by the mother. And the texts from the mother from this visit reinforce this.
So please advise today that the visit will not go ahead so another contravention can be submitted. I guarantee you both that this will be my best yet.
There is a “fair chance” that the behaviours being promoted amount to child abuse. And I will be proposing that the children are removed from the mother in due course.
….
At 3:26 pm on 12 July 2017 the father sent an email to the mother’s solicitor in which he said as follows:
[Mr T]
I challenge your client to highlight exact dates, times and events that took place with your generic statement of “consistent aggressive behaviour” below.
…
What I will then provide is the video that shows otherwise. Then I can’t be accused of cherry picking videos for trial. We don’t do a lot of extracurricular activities for this reason. Additionally, the children say they like to “chill” at home. I don’t argue because the video tells the story. It tells a story that there are NO ISSUES.
If you can’t provide the info today, then I take it your statement is full of shit (as per usual).
[B]
And please provide the weekends whereby you clearly state that [B] loses 4kg on my weekends in my care and I will provide the video of what she ate.
The sad reality is that [B] is weighed by a GP on a Monday, she is then picked up on a Friday and returned on a Monday. There are nearly 5 days before she is picked up and in my care. She “could” have lost the weight prior to my visit. Lets face it, it is impossible to lose 4 kg in a weekend. The fact remains she is not seeing a specialist, she has been through the public system twice for a reason. She has an attention seeking disorder, not an eating disorder. Not once she complained, not once.
…
Although the father does not say that he went to school to collect the children or that they were not available for collection at school in accordance with the orders, whether he did or did not do so, I am satisfied that the mother had a reasonable excuse for not making the children available on this occasion. The children are of an age where they not only would be likely to have formed their own views, but as previously referred to, it is difficult to see how the mother could make them spend time with the father against their wishes. At their ages, there is also little the mother could do to either stop the children calling or spending time with the father, if they wished to do so.
Of even more significance, in my view, is that the father has little or no insight and accepts no responsibility for the part he has played in the breakdown of his relationship with the children. The father’s angry and aggressive demeanour in Court and the totally inappropriate texts and emails he sends to the mother, her solicitor and the Independent Children’s Lawyer in my view lend weight to what the mother says the children have told her about the father’s behaviour during the time they spend with him and how they feel about spending time with him.
Although the mother said the children were unaware that the father has been filming them, it is hard to imagine a more significant breach of trust from a child’s point of view. The father breaking the code on C’s mobile phone similarly demonstrates a total lack of insight on the father’s part in relation to how the children might feel, as do his threats to make all that information available online. Although the father has not been cross-examined, the emails and letters speak for themselves and I am satisfied on the balance of probabilities, it demonstrates that the father’s need for vindication overrides the children’s welfare.
Unfortunately the father seems unable to see any perspective other than his own and there is no indication that he can see, let alone accept, the part his behaviour may have had in the breakdown in his relationship with the children. As Ms F observed in her first report “…if the children’s recent experiences are to be accepted then [the father] is still sabotaging in his own lack of containment.” In all of the circumstances, I am satisfied that the mother had a reasonable excuse for not making the children available to spend time with the father and even if it were possible to make them available, having regard to the children’s wishes based upon their own experience with the father, it would have been difficult, if not impossible, for the mother to force them to spend time with the father.
The Mother’s Application in a Case seeking a suspension of the children’s time with the father
Pursuant to s70NBA of the Act, the father’s applications for contravention having been dismissed the Court may make an order varying the primary order. In this case that the mother had already filed an Application in a Case seeking the suspension of the orders with respect to the children’s time with the father. The father having left the court that application was unopposed. The orders the mother seeks are interim orders. As in any parenting case, the best interests of the child or children the subject of the proceedings is the paramount consideration.
In Goode & Goode (2006) FLC 93-286 the Full Court set out the legislative pathway the Court is required to follow in interim parenting proceedings and observed at paragraph 68 as follows:
…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
In the later decision of Banks & Banks (2015) FLC 93-637 the Full Court in addressing the determination of interim parenting proceedings said as follows:
…By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
…
…there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93–582.
When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
The process is even more truncated in this case in circumstances where the father left the Court before the hearing of his various applications for contravention had been completed and before the Court could deal with the mother’s application to suspend the final orders. That being said, most of the evidence in this case was tested and as previously referred to, much of the evidence was in letters, emails and texts passing between the father and the mother, the mother’s solicitor and the Independent Children’s Lawyer and was not in dispute.
I have already referred in some detail earlier in these reasons to the father’s lack of insight with respect to the needs of the children and his inability to prioritise their needs. Nothing highlights that lack of insight more than the fact that it was his case that the mother should be incarcerated for contravening the orders and his Response to the mother’s Application in a Case, in which he sought interim orders that the children live with him and only spend time with the mother after she is able to convince the Court that she understands the importance of the children’s relationship with the father. This is in circumstances where the mother has always been the children’s primary carer.
The reports prepared by Ms F upon which both parties and the Independent Children’s Lawyer relied confirm both the mother and the children’s concerns about the father’s behaviour and the tenuous nature of the children’s relationship with him. I am satisfied based upon the evidence before me that the father’s behaviour to the mother and the children has not improved and that the relationship between him and the children has deteriorated further since the children were last seen by Ms F.
I am also satisfied that in these circumstances, it would not be in the children’s best interests for the orders to remain in force which entitle the father to attend at the children’s school at the commencement of their time with him. I have little confidence, given the way in which the father conducted himself in Court, that he would be able to contain his behaviour if he were to attend at the children’s school and the children refused to go with him.
In my view, the children’s relationship with the father will not be assisted nor is it in their best interests in circumstances where they are living with the mother for the father to be in a position to insist upon the mother’s compliance with the orders, even if it were assumed it would be possible for her to make the children do what they do not want to do. I am satisfied that it is not in their best interests for the mother to face further applications for contravention in the event that they do not spend time with the father. Nor in my view should the mother be required to put up with the abusive emails and texts sent to her by the father, behaviour which I am satisfied constitutes family violence as defined in s 4AB of the Act.
Further contraventions would also have the potential to delay a final determination of the matter.
In all of the circumstances, I am satisfied that it is not in the children’s best interests to spend time with the father pending a final hearing of this matter. However I am also satisfied, particularly having regard to the ages of the children, the degree of conflict and the protracted history of the proceedings, that it is in their best interests that these proceedings be finally determined as soon as it is practicably possible to do so. On that basis, although the matter was only placed in the list of cases awaiting hearing on 17 March 2017, I made an order listing the matter to a Registrar’s Duty List for the purposes of directions for a final hearing in this Court.
Finally as previously referred to, I also dismissed the father’s Application in a Case seeking a review of the Registrar’s decision releasing the documents produced by Victoria Police pursuant to subpoena. I note in relation to that application, that those records were released in accordance with the Registrar’s order before the father had issued his application for a review.
I certify that the preceding one hundred and fourteen (114) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 21 August 2017.
Associate:
Date: 21 August 2017
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Remedies
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Procedural Fairness
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Intention
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