D and D - [2003] FMCAfam 83

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & D

[2003] FMCAfam 83

FAMILY LAW – Contravention – wife did not allow children to travel to the USA in contravention of orders – consideration of when a breach occurs – can a refusal, made for one reason be supplanted by another later reason – consideration of the relevance of a “reasonable excuse” applying only to the second reason – if a reasonable excuse exists, does the respondent have an obligation to apply to vary or suspend the orders.

Family Law Act 1975, ss.65M(1), 65M(2), 70NC, 70NE(1), 70NE(1A), 70NE(2), 70NE(3), 70NEA

Applicant:

J R D

Respondent:

R R D

File No:

MLM10535 of 2002

Delivered on:

21 March 2003

Delivered at:

Dandenong

Hearing dates:

11, 12 & 13 March 2003

Judgment of:

Bryant CFM

REPRESENTATION

Solicitors for the Applicant:

In Person

Counsel for the Respondent:

Mr Testart

Solicitors for the Respondent:

Mahons with Yuncken & Yuncken

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
M

MLM10535 of 2002

J R D

Applicant

And

R R D

Respondent

REASONS FOR JUDGMENT

Introduction

This matter involves an application by the husband filed 23 December 2002 alleging that the wife contravened orders made in the Family Court of Australia on 5 July 2001. The matter was listed for hearing on 14 January 2003 in the Federal Magistrates Court at M. The husband has at all times appeared for himself and the wife has been represented.
The matter was listed before me expeditiously following the husband's successful appeal against an order of Phipps FM made on 7 January 2003 which denied the husband's application to appear by way of telephone from the U S A where he resides.
The reasons for the husband's appeal being successful are set out fully in the reasons for judgment of Kay J on 27 February 2003.
The orders made by Kay J set aside Phipps FM orders and remitted the matter to be heard expeditiously in the Federal Magistrates Court. Paragraph 5 of the orders provided that at the expedited hearing the applicant father be at liberty to make submissions and give evidence by audio-link and that such audio-link be constituted by the use of a telephone at the place where he is giving evidence and making his submissions.
As a result of the order, the issue of whether the husband could appear by telephone, which was opposed by the wife, was no longer at large and the matter proceeded before me with the husband giving evidence and making submissions by way of telephone from his home in K.
This matter is a contravention application often described as being of a quasi-criminal nature. Whether that is a correct characterisation in view of the present provisions of the Family Law Act 1975 I do not intend to consider. Suffice it to say that it is, on any view, a serious matter and the evidence in support must be weighed and considered carefully. Weight may need to be given, for example, to the fact that one party is not present in Court, nor visible for cross-examination, if credit is an issue. As it turned out, issues of fact and credit were not such that I was in any way impeded in the making of findings of fact by the fact that the husband was not physically present or visible by video for the hearing.

Original orders

The orders the subject of this contravention application were made on

5 July 2001. The orders concern three children of the parties: J R D born 13 May 1985 who is 17 (known as J), J P D born 4 May 1988 who is 14 (known as J), and K R D born 13 February 1993 aged 10 (known as K).
The parties were married on 28 July 1984 in K in the USA. Both parties were born in the USA and both parties and the children are United States citizens. The parties separated on 17 August 2000.
Proceedings were instituted in November 2000 in relation to the residence of the children in the Family Court of Australia. Part of those proceedings were the husband's application to relocate to the United States with the children.
All matters regarding the children and property issues were listed for hearing in July 2001 before Watt J. Both parties were represented at the hearing by senior counsel. Several days into the hearing the parties reached agreement in relation to property and parenting matters and orders by consent were made on 5 July 2001.
The orders provided that J and K live with the wife subject to being with the husband at specific times which amounted to holiday periods, and J was to live with the husband. The wife was proposing to reside in Australia with J and K and the husband was permitted to relocate to the United States with J. Paragraph 4 of the orders dealt with the periods during which the children J and K would reside with the husband and were as follows:
a)During all school term holidays
b)During half of the Christmas school holidays – for the first half in 2001 and the second half in 2002 and alternate years thereafter
Other orders provided for what was to occur when the husband was residing in Australia and provided for other contact as agreed.
The orders also provided for telephone contact and paragraph 7 of the orders provided that the residence referred to in paragraph 4 was to be at the expense of the husband in relation to the children J and K and the wife's contact with J in Australia was to be at her expense. Other than to provide for who is to be responsible for the expense of the travel of the children to visit the husband or wife respectively, the orders provided no further mechanics for the travel arrangements.

Further proceedings

Despite the fact that the orders were made in July 2001 there has only been one period of contact since the husband moved to the U S shortly after the orders were made. A period of contact was due to take place during the September school holidays in 2001. As a result of the events on 11 September 2001 both parties deemed it unsafe for the children to travel and the contact did not take place between K and J and the Husband which had been proposed.
For the Christmas school holidays in 2001/2002 the husband arranged to come to Australia to collect K and J and take them to the United States with him for the holidays. On 8 October 2001, the husband brought an application for maintenance from the wife and on

21 November he brought an application for contravention which related to phone contact and school reports.
In December 2001, the wife made an application requiring the husband to provide security for the return of the children after the Christmas school holidays.
On 10 December 2001 both applications came before the Court. There was no appearance for the husband and his applications were struck out. On an ex parte basis, an interim order was made restraining the husband from removing the children from the Commonwealth of Australia. It is common ground that the husband was in Malaysia on his way to Australia at the time this occurred and unaware of the proceedings.
The husband subsequently arrived in Australia and on 12 December the parties resolved the issue of security by the husband agreeing to provide to the wife $700 in USA traveller's cheques by way of security and a prepaid Qantas ticket from M to USA and return, also by way of security. The orders that were made clearly provided for the security to be limited to the period of 12 December 2001 to 24 January 2002. The Husband contends that nothing should be read into this agreement and that he was pressured into agreeing, because it seemed to him the only way he could expeditiously leave with the children.
No further applications were brought by either party to vary or amend the orders of 5 July 2001 until this application.
It is common ground that the husband became unemployed during 2002 and was not able to afford to arrange contact in the term school holidays. It is in the context of endeavours to arrange contact during the Christmas school holidays that the husband alleges that the wife has prevented that contact from occurring and thus contravened the orders of 5 July 2001.

Husband's case

The husband's case is essentially as follows:
a)That the wife contacted him by email in September 2002 requesting an altered scheme whereby she would return to the United States with the children during the holidays and the husband would pay her the cost of one half of the children's airfare. He refused that altered contact request based on his financial difficulties and his inability to send the money, especially in view of the fact that the security he had left the year before had not been returned by the wife.
b)During the Thanksgiving holiday in the U S on 26 November 2002 the children's grandmother offered to purchase their round fare airfares for the holidays.
c)Around about 29 November 2002 the husband emailed the wife advising that he could purchase tickets departing on 29 December and returning on 29 January. He requested the wife to agree or disagree before 3 December as the tickets could not be refunded after that date.
d)The wife responded on 4 December but the Husband was able to extend the time for payment to 9 December.
e)The wife agreed to the dates proposed by the husband.
f)The husband responded that the children would fly on the Qantas flight from M to L A on 29 December. At an additional cost the children would have a Qantas escort through customs in M and would be escorted from customs in L A where a waiting family member would meet them for the domestic flight back to K. The same arrangements were to work in reverse.
g)The wife refused this proposal and insisted that the children travel with a family member picking them up in M and taking them to K and returning on the flight with them. A family member was to be someone acceptable to the mother but the expense was to be that of the husband. As a result of the wife's refusal to permit the children to travel without an adult accompanying them which would mean considerable expense to the husband, he was unable to have the children during the Christmas holiday period.
The husband contends that the matter is simple and that the orders are plain on their face and no conditions of any kind are to attach to the bare obligation to send the children, upon tickets having been provided by the husband. I am not convinced that the orders should necessarily be read in this way, however, the point does not arise because the husband was prepared to arrange at some expense, for a Qantas escort through customs at each end and for a family member to meet the children at L A and take them to K and to do the same on the return trip. That appears to me to be a reasonable proposal for travel, if indeed it is necessary to imply any reasonableness into the orders. He contends that the condition which the wife was imposing would require the purchase of an adult airfare for at least one return trip and presumably, if the family member was to be a member of the husband's family, two return trips. The husband estimates this would have cost another $5000 and never formed part of the orders.

The law

The relevant sections of the Family Law Act dealing with contraventions are as follows
70NC A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a)     where the person is bound by the order – he or she has:
(i)    intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b)     otherwise – he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
65M(1)   [Application of section]
This section applies if a residence order is in force in relation to a child.
65M(2)   [Person must not act contrary to order]
A person must not, contrary to the order:
(a)     remove the child from the care of a person; or
(b)refuse or fail to deliver or return the child to a person; or interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order.
70NE(1)   [Circumstances where reasonable excuse]
The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (1A), (2), (3) and (4).
70NE(1A)   [Lack of understanding of obligations]
A person (the respondent ) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(a)the court is satisfied that the respondent ought to be excused in respect of the contravention.
70NE(2)   [Breach of residence order to protect health or safety]
A person (the respondent) is taken to have had a reasonable excuse for contravening a residence order in a way that resulted in a child not living with a person in whose favour the order was made if:
(a)the respondent believed on reasonable grounds that the actions constituting the contravention were 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 did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
70NE(3)   [Breach of contact order to protect health or safety]
A person (the respondent) is taken to have had a reasonable excuse for contravening a contact order in a way that resulted in a person and a child being deprived of contact they were supposed to have had under the order if:
(a)the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person (including the respondent or the child); and the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
70NEA     The standard of proof to be applied in determining, in proceedings under this Division, whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention is proof on the balance of probabilities.

The wife's case

The wife's defence to the husband's contention that she had contravened the orders was as follows:
a)That no breach occurred because the parties had agreed implicitly at least, by words and actions that the children would not travel without being accompanied from M to K and back from K to M by an adult family member acceptable to the wife at the expense of the husband. Thus she contended that in requiring this condition she was not in breach of the order.
b)Alternatively, if there was a breach found (that is if the Court found that no such condition existed) she did not agree to the children travelling because there was a risk to their health and safety if contact occurred;
i)because she believed on reasonable grounds that the husband would retain J and not return him at the conclusion of the holiday period;
ii)because K was fearful about travelling without adult family accompaniment;
iii)because the husband's recent communications with the children had left them distressed and emotionally vulnerable and for any or all of these reasons contact between the husband and the children was contrary to their best interests and in refusing to facilitate their travel she had a reasonable excuse in terms of S70NE (2) of the Act .

The evidence

Chronology of events

On 11 August 2002 the wife emailed the husband regarding Christmas holiday arrangements, advising that pursuant to the orders he was entitled to have J and K from 8 January 2003 to 2 February 2003. She asked him to bring forward their return by two days to allow for them to prepare for the new school year. In the same email she indicated that she would be bringing J and K to K C around 15 December and returning to Australia on 5 January. She indicated that she would be going to F to stay for a few days and then to her mother and father's for Christmas. She indicated that as she was entitled to the first half of the holidays, there would be minimal opportunity for him to see the children before Christmas but that J was welcome to come over at any time including travelling to F with them and that J and K would not be available on Christmas Day due to family commitments but would be available for the day on 26 December. She indicated that should the husband wish to have J and K stay over during the holidays, he would need to provide at least half their airfares and a guarantee of an adult accompanying them from K to M on their return flight, such guarantee being in the form of a purchased ticket. She indicated that she would be purchasing tickets before 1 September and unless she heard from the husband K and J would be returning to Australia by 5 January.
The husband responded on 12 August. He indicated that whatever the wife did was her concern but that he would have roundtrip tickets for his portion of the holidays. He indicated that all he had to do was to provide tickets from Australia to the U S and back. He said:
I would never let the kids fly alone, but point out to you that a guarantee of escort is not your prerogative, nor ordered by any Court.
The balance of the email warrants reproduction because it indicates the level of communication:
I appreciate the offer for the 26th, it would be nice to have presents on that day. However, I suggest you get a new attitude before then, you will have no legal back-up here, nor enforceable orders to make "requirement" so back off and grow up.
I personally hope you work out your tickets to the kids advantage and they can have a seamless holiday. But we won't be making any "deals" nor will we go through the extortion and blackmail bullshit like last time. If need be, they will just have to get off one plane in Australia and climb aboard another two hours later.
On 13 August the wife emailed the husband and advised that her parents would drop J and K off on the 7^th January. She indicated to him that it was cheaper to purchase a ticket from Australia, it would make sense for her to purchase the tickets and for the husband to reimburse half of the fare.
One or two days later he responded:
"Unemployed" seems to be a difficult word for many people to contemplate. The cooperation you suggest would be the smart way to go. However, I do not have the money, nor can I meet your deadline. I also do not know of any fares that must be purchased in September so far in advance. I will have to buy tickets 14 days ahead to receive the best fare. Financially speaking this is what I will have to do.
My tickets will be refundable should I only use a portion.

I suggest you also purchase tickets that have a refund option. Bringing the kids there a day earlier is not a problem.
Going to Florida, I am sure, will be fun for them. I prefer to be included in such a decision before it is made. The kids welfare, and what they do, as well as where they go is not a unilateral decision on your part. Discussion of such an event beforehand, saves anger, and problems after the fact.
If I am not flying to Australia to pick up the kids, then they will come here on the day you depart. This is a legally sanctioned custody and your parents are not part of it. If you leave the country they must come here. But, it should work out fine if you want to bring them home earlier anyway. That way we avoid your beloved Court.

On 23 August the wife emailed the husband to advise him that her trip to K and Florida for Christmas was postponed indefinitely and that unless otherwise advised the children would be available for collection in M on or after 6 January. She informed him the security and tickets that he had put up the previous year had been used for the purpose of their schooling and towards the cost of cleaning the house (when it had been sold). The evidence given by the wife was that one of the reasons for cancelling the holiday was the husband's threat to interrupt the Christmas Day/Boxing Day arrangements by informing the wife that she had no legal back-up or enforceable orders in the United States. She said that she was concerned about being in a position where the husband could simply retain the children and she had no redress.
The husband responded to the wife's email indicating that he would:
Move within the Court to recover such security. … So, I will be asking for the security to be returned.
After dealing again with the issue of the security which had been spent the husband said:
If you still cannot find away to agree to things, I am prepared to have the kids take the flight on 6th or 7th, still returning them a day early to be more prepared for school. I will collect them or someone else might do it.
On 19 August the wife emailed the husband to say that airfares purchased in September assured seats and all that she wanted was a guarantee that he would pay half the price of them getting on the plane as they would all save considerable time and money. The husband responded to the wife indicating that he could not promise money prior to purchase of the tickets in September and that he would have tickets that were refundable for an unused portion. He indicated that if he had money available he would be scheduling a visit in September first and foremost and that being unemployed he clearly could not afford the wife's proposal. The last paragraph concluded:
I think you still need an attitude change. I seem to remember your request last year for the kids to see your parents and I believe I was overly generous to that request. December 26 WILL NOT be withdrawn. Read your Court orders concerning Christmas access. In fact, since they will be in the country I suppose I could demand a 25th access. However I hadn't planned to do that since you mentioned the 26th even with all of you "rules and regulations".
There were no further emails concerning these matters in September or October. On 7 November at approximate 11.37 pm the wife emailed the husband asking:
Could you please advise if you will be seeing J and K during the Christmas holidays? Do you have flight times yet? Please note my change of email address. Could your bring me up to date on J R's medical condition.
The husband did not respond until 4 December. The opening words of his email say "Now I can answer". His response was to advise the wife that there was no money for the visit but that his mother would pay for the children to come to the United States. He said:
The big problems are timing and expense. Expense wise, no-one can come and go with the kids. They would have to be taken to the plane and they'd have to travel to M - LA part by themselves. I don't like this but it is a reality. I talked to J he had no problems. K was scared. Nevertheless this is the way it will be, if it is to be. If possible to do, they will be met in customs in LA by me and taken back by me to LA for the return flight.
He indicated that there was no chance for flights except on 29 December and 29 January return. He indicated that he must know by:
"midnight Friday if you will agree or disagree, because the tickets are non-refundable. … If the answer is no, fine. Tell the kids. And tell us, so we can send their presents. If the answer is OK, then we need to work out the schedule. That is because grandma won't buy the cheapest ticket (non-escorted) and insists to have the fare at two adult level with escorts. And they are non-refundable tickets.
The escorts he described were not a family member travelling all the way with the children but the assistance of the airline personnel to take the children through customs at M and look after them on the plane and through customs as L A.
In evidence the husband said that he has responded on 29 November because the offer from his mother had been made at Thanksgiving on 26 November. He could not produce the email but said that the travel agent had inserted into it details about the flights and he was certain it was sent on 29 November. The wife was able to produce a copy email dated 4 December sent at 4.16 am. The husband was able to produce other emails had an email been sent earlier I have no doubt the husband could have produced it and I find that the husband did not respond on 29 November as alleged but on 4 December.
On 7 December at 10.11 am the wife in an email responded to the husband as follows:
If an escort is provided I have no problems with the dates. I have a very major problem with J and K travelling unescorted and am totally against it. I will not allow them to travel unless they're accompanied by a responsible adult of whom I approve. K is very scared to travel because of the terrorism in the world and because she's only nine. And I am not convinced J would be okay.
On 7 December at 2.00 pm the husband responded to the wife by email. In relation to the travel he said:
Both kids may be scared, I do not like nor approve of the travel arrangements but that is now a fact of life. They will have to travel alone, approved by you means nothing, because it will be an airline person. If K is scared, I am sorry, but it is both our responsibilities to make sure J gets together with his brother and sister. If you disagree, sorry, I will not push it. I could, by contacting the Court and saying there is nothing saying they have to be "picked up" but you know I don't like them even taking a small trip alone, so it takes a lot for me to just comprehend them travelling alone on one flight. Yes, they are scared. I don't like it, I told ya before. I would never want to do it this way. But financially, this is real life, and they must be put on a plane or forego any contact with me and J.
On 7 December at 9.30 pm the wife emailed the husband and said:
It seems you have misunderstood my email … I do not object to the dates … I object to the escort … I do not approve of the airlines taking care of our children (seeing as J R has flowed by himself once without my knowledge of it).
I will only agree to travel for K and J if an adult family member escorts them (Betty Jane Andy for example).
The husband responded by email on 8 December at 2.31 am. He commenced his email by saying:
Yes I did misunderstand. And, to be clear, I happen to not like the idea of the kids having to travel on the M to LA flight alone. But, no-one else would be able to come, it is too expensive. If it wasn't too expensive, of course someone would come here. Two extra roundtrip tickets (indistinct) is simply not affordable. …If you disagree, okay, we will not see them this year. I will make a point of saying the kids are denied contact by you under existing contact orders and try through the courts for them to be put on an aeroplane next chance, or we'll just not be able to see them anymore.

Was there an express or implied agreement between the parties that K and J would travel to the United States in the company of an adult family member acceptable to the wife at the expense of the husband?

The wife asserted that the communications referred to above together with the fact that the husband had travelled last Christmas to take the children personally back to the United States indicated that there had been an agreement that the children would only travel to and from Australia in the company of an adult family member. I do not find that the parties had such an agreement or that it was implicit in the orders or the conduct of the parties. There are a number of reason for this:
a)whilst the 11 September 2001 events were obviously concerning, the wife actually brought proceedings about the Christmas school holidays 2001/20002. She sought security for the children's return. She did not seek at that time to insert any conditions that at any future time the children must be accompanied by an adult, although she clearly had the opportunity to do so at that point.
The wife first raised the issue with the husband in her email of

11 August when she said "The guarantee of an adult accompanying them from K to M on the return flight. Such guarantee being in the form of a purchased ticket." The husband's response to that was to make it clear that the guarantee of an escort was not the prerogative of the wife nor ordered by any Court. I do not consider the use of the words by the husband "I would never let the kids fly alone" as indicating an agreement because it was immediately followed by him pointing out to the wife that she could not insist on the kind of escort that she wanted nor was it contained in the orders. Thereafter in the communications from the husband the wife continued to insist upon that condition and he continued to point out to her that it was not required and could not be afforded. Comments about the desirability of it were always accompanied by statements that it was not a prerequisite of the orders and that it was not agreed to by the husband and that it was not financially viable.
However, before the wife emailed the husband on 7 December refusing to allow J and K to travel unless accompanied by an adult of whom she approved, she had determined for other reasons that she would not allow them to travel to the U S.
In November 2002 the wife noted difficulties and changes in the behaviour of the children. As a result of a phone call between K and her father on 28 November, K was distressed, the wife returned home to find that she had been sobbing and crying following a phone discussion with her father. She complained he did not understand she had an apprehension about travelling and had questioned her about the household. The wife had noted that after each phone call with the husband, that J was getting very quiet and she became concerned about this. She was concerned about both K's apprehension about travel and the pressure that the husband seemed to be putting on her. In particular he appeared to be questioning her and challenging her about the mother's partner, Mr D, who was a member of their household.
On 28 or 29 November the mother picked up the phone to make a phone call and inadvertently overheard part of a conversation between the husband and J. I accept that she had never previously listened in to the children's conversations and she had not intended to do so on this occasion. What she overheard however gave her considerable concern and caused her to have a better understanding of why J had been distressed after phone calls. She heard him speaking inappropriately about herself and Mr D and in particular she overheard him saying to J that if he stayed in the U S with him the husband would end up going to jail. The tenor of the conversation as she understood it was that he was encouraging J to stay in the U S and not return to his mother. She was particularly concerned about J because she said in evidence that she felt that one day J would wish to go to the U S and that she was not opposed to that when he had finished his schooling, but she did not believe that it was in his best interests at the moment. She felt that he was susceptible to pressure from the husband of this kind.
She had been concerned about why the children had been behaving differently and the tenor of the phone calls led her to understand why this was so. She held the belief that the husband was asking inappropriate questions about the household, putting pressure on them about their relationship with Mr D and pressuring them to go to the United States. She had only heard a brief part of the conversation between the husband and J and decided at that point that it was necessary for her to listen more fully to the conversation and she determined to tape the next phone call between J and his father. J was unaware that the call was being taped.
Thereafter a number of telephone calls were taped. I did not permit the evidence of all taped phone calls to be admitted and confined the evidence that was admitted to the call which preceded the wife's determination not to permit the children to travel to the United States, as going to the question of whether a belief that to prevent them from travelling was to protect the children's health and safety and as to whether that was a belief held on reasonable grounds.
The taped conversation occurred on 8 December and followed the email exchange on the 7th. The husband was aware when the conversation took place that the wife was refusing to allow the children to travel. The wife's evidence was that she formed the view on the

29 November that it was not in the interests of the children to travel, not solely because the escort as required by her would not be provided, but because she believed that:
a)the husband would retain J in the United States and not return him at the conclusion of contact, and
b)the whole nature of the husband's recent communications with the children had been such that they were under considerable emotional pressure from him and that it was not in their interest to spend time with him at this time in the United States. A further reason was her concern about K's apprehension and the husband's apparent discounting of it.
The conversation which was taped is a disturbing conversation between the husband and the J. I accept that it was a conversation which took place the day following the wife's notification to the husband that the children would not travel without an accompanying adult. The wife conceded that that was no longer her sole motivation for not allowing the children to travel but that she was not prepared to reveal to the husband the real reason.
The conversation which took place between the husband and J reflects to some degree the husband's distress and anger at the wife's refusal to commit to sending the children. Parts of it are understandable in that context, however it does not in any way reflect well on the husband there is a clear example of the worst kind of emotional manipulation. In the conversation he makes it clear to J that his mother is refusing to allow him to travel. He makes it perfectly clear that he is angry and upset and blames his mother entirely. Much of the conversation is an exhortation to J to stand up to his mother and if necessary in an aggressive and violent manner. J's responses are monosyllabic and basically confined to saying, “uh huh” at various intervals. For example the husband asked J whether he wanted to come to the United States at Christmas to see him and his brother and J's response was to say, “uh huh”. The husband then exhorted him to stand up to his mother saying things like:
You'd better start raising all starts of hell, punching holes in walls.
He tells him to fight for what he wants and his language towards the children's mother with whom they live is quite inappropriate. For example at one point he says:
What will you do to fight for what you want? Do you know why I'm so pissed off because grandma paid for these tickets and she's lost all that money because your mother has fucked around – $4000 – she's an arsehole that's what pisses me off .... when are you going to stand up and kick some arse ..... I'll sue your mother and create bull shit .... you're nearly 15 you give her some shit and say I want to visit.
The conversation repeats these sort of comments over and over. The husband refers in the course of the conversation in derogatory terms to the mother and Mr D. He refers to Mr D on numerous occasions as:
Dupshit.
a)He refers to the wife as:
A bitch and a whore.
b)At one point he says:
She's just interested in money – I hate that girl more today than I did last year.
c)During the conversation he tells J that:
She has a nut loose.
d)And that:
If you ever get over here that I ain't letting you go you're staying here and I don't give a shit if I go to jail. I think she understands that.
The mother's evidence was that she listened to the tape and it was apparent to her that J's demeanour during the conversation was an extremely agitated one. Her evidence was that she could make out that J was at one stage sobbing silently during the conversation. This was not apparent to me from the tape but it is quite conceivable that it was so and not inconsistent with the responses that J was given.
It was an extraordinary example of unacceptable emotional pressure being placed on J not simply in relation to the comments being made about the trip itself and how he should stand up to his mother but because of the derogatory way in which the husband referred to the wife and Mr D. His comments were entirely disrespectful of the wife's role and of her relationship with Mr D. It is clear from a number of comments made by the husband in his cross-examination of the wife that the husband believed that Mr D was responsible for the break-up of their marriage and that he is still extremely distressed and agitated by the fact that the wife is now living with him. He is quite carelessly and recklessly allowing his own feelings to be communicated to the children quite directly and in a manner which I have no doubt he understands will cause difficulty in the household. That is clearly his intent. Whether he understands the emotional effect of the children being put in that position, particularly J, I am not so certain but he is certainly unprepared to place their needs above his own.
The taping of the conversation took place on the day after the wife had communicated to the husband that the children would not go without an escort and certainly after she had formed the intention that they would not go. The conversation confirmed her intention. It particularly concerned her that J was being told that he would be retained in the United States, in breach of the orders, and that his father did not care if he went to jail.
The wife then considered what options she had. She sought to obtain some advice from Dr L, a psychologist who had interviewed the children for the purposes of a Family Report prior to the hearing in October 2001. She sought an appointment with Dr L but was not able to see him until 22 December. She discussed with him a number of options. One option was to take some action to change the orders and advising the husband of the real reason for her refusal to allow the children to travel to the U S. The second was to raise with him the inappropriate discussion with the children. The wife said that she rejected the option of taking legal action because of the expense. She was still in probation in her new position because she had already spent a lot of time on the children's issues. Due to the husband's unemployment the children had to be removed from their private schools and she had had to pay school fees and was being sued for the 2002 school fees. She had other debts and the husband was not paying child support due to his unemployment.
Nevertheless she had $20,000 in a term deposit and $11,000 in savings and in my view it was open to her financially at least to take action to vary the orders or to seek a suspension of the orders at this time. She had had no difficulty in bringing an application the previous year on an ex parte basis when the husband was en route to Australia and that option was well and truly open to her. In the end she decided that she would consult Dr L with the children in January when he was able to see them but in the meantime having told the husband that the children would not be travelling she opined that he would not be able to make arrangements for their travel and would not be likely to obtain a Court hearing before the end of the holidays if he brought an application for contravention of the orders. But she decided that the best course was to do nothing and to consult with Dr L in January. She rejected the option of discussing the matter with the husband as she felt that that would be unlikely to achieve anything. No doubt it would also have put the husband on notice and perhaps prompted him to take action sooner.

Dr List gave limited evidence that I admitted on the issue solely of whether the wife's belief was a reasonable one on an objective basis. The wife had played the phone conversations that she had taped to Dr L. I permitted his evidence only in relation to the conversation which pre-dated the wife's decision not to send the children. Dr L was familiar with the children from reports he had done previously and with each of the parties. He conceded that he had not interviewed the husband and that his comments had to be considered in that light. In his view the phone conversation on 8 December created pressure on J to accede to the husband's wishes which creates disloyalty to his mother and emotional problems for him. He was concerned about the husband's exhortation to J to behaviour in disruptive ways and to misbehave. He felt that the instruction to behave in highly provocative ways was most inappropriate and would have an adverse impact on his emotional well being. He was particularly concerned about the husband informing J that he would keep him contrary to the orders and was not frightened to go to jail. He felt that J was being placed in a position of criminal complicity and the derogatory comments generally about the mother and Mr D were likely to cause distress to J. He felt that there was an abusive quality to the nature of the conversation which might in another jurisdiction have raised protective concerns. In his view there were emotional protective concerns raised by the conversation and that it was reasonable for the mother to be concerned about letting the children travel to the U S with the father. In his view it was reasonable for her to prevent contact during the holidays especially in light of the threats to keep J.
The wife did nothing further and on 23 December the husband filed an application for contravention which was listed for hearing on 14 January. The matter was not heard on that date for the reasons that I have already described.

When did the contravention occur?

Counsel for the wife submitted that the contravention did not occur until the children failed to board the plane on 29 December, the date agreed by the parties for travel. If this were correct it would have two effects. One would be that the husband's application was prematurely brought, yet no application to strike it out on that basis was made. Secondly it would mean that there was no time delay between the refusal and the contravention in which a Court might consider whether the wife had withheld the children for longer than was reasonable.
I do not accept that breach occurred only on the day when the children were to board the plane. There are many cases in which the preparation for contact must occur well prior to the date on which it is actually to take place. Travel overseas is an obvious example. The need to book in advance is obvious because otherwise seats may not be available. Different fare structures are available depending upon how long in advance tickets are booked. It is an absurd proposition in my view to suggest that where overseas travel is concerned when one party has clearly evinced an intention not to permit the children to travel, to say that the contravention only occurred on the date of the anticipated departure. To postulate that the wife might have changed her mind between 7 December and 29 December would require the husband to have bought tickets in case she did, notwithstanding her clear intention not to allow the children to travel. In my view the contravention occurred in this case when, (dates having been agreed ) the wife informed the husband that unless he provided an accompanying adult all the way (which he had said he would not do) then the children would not travel to the U S. This took place on 7 December. The email exchange between the parties on that day and early on

8 December make it clear that both parties understood this to be the position.

What were the reasons for the wife's refusal to allow the children to travel?

When the wife told the husband she would not allow the children to travel without an adult family member to accompany the children to and from contact, this was not the sole reason for the wife refusing to allow the children to travel. I do not regard this as an acceptable reason in any event. I have found that there was no agreement between the parties that an escort would be provided. In this respect the wife contravened the order. I do not regard it as a reasonable excuse that she thought it necessary. It was conceded that there was no real issue about J travelling and that he was not reluctant to travel. I accept that K was apprehensive. However she was 10 years old and travelling with her brother. She had travelled to the U S and back previously although the year before she had been accompanied by her father. It is not surprising that she was apprehensive but apprehension itself is in my view not sufficient. Apprehension could be overcome by encouragement from her mother. The reality was that the children would be accompanied through customs by a Qantas staff member. They would travel on a non-stop flight from M to L A and would be cared for on the plane by staff. They would be accompanied at the other end through customs by a staff member and then their father or a close family member would meet them and take them to K. There is nothing inherently dangerous or unacceptable in this arrangement given the ages of the children and that they were travelling together. The wife could easily have encouraged K and no doubt once she had done the trip once, any apprehension she had would disappear.
The other reason the wife did not wish the children to go was the view she formed on or about 29 November that it would not be in the children's interest to travel to the United States at this time. This view was formed for two reasons. The first was that she feared that the husband would not return J as a result of what she overheard on the telephone. In my view her fears were realistic. The husband told J that he could stay with him. I have little doubt that the comments to J about keeping him in the U S were made more strongly in the taped conversation which occurred after the husband knew the children were not to come. In the context that there had already been some issues about the wife's rights, or lack of them in the U S when the parties were negotiating in August, and in view of the wife's concerns about J's possible wish to stay there in any event, in my view her fears that he would not return J were reasonably based. The husband has no one to blame but himself for the wife forming this view as it was he who made the comments. When she heard the tape on 8 December her fears were confirmed.
The second issue was the issue of the children's emotional state and the husband's pressure on them about their mother and more particularly about Mr D being part of the household. On its own this may not have persuaded me as a sufficient reason not to allow the children to travel but coupled with the threats to retain J I am satisfied that the wife genuinely formed the view that it was not in the interests of the children to travel to the U S for this holiday and that her concern was the manipulation of the children which the husband might engage in while they were there. This was a reasonable view to form having regard to the evidence of Dr L.

In view of her fears about their safety, are the wife’s views about an accompanying adult still relevant?

In my view the wife has shifted her grounds for her decision not to allow the children to go, and whilst her concerns about the children’s safety genuinely arose, they were presented in a context which enables the wife to best present her defence. From all the evidence I have heard I am satisfied that the wife had formed a view as early as August that the children would not be travelling to the U S without an adult accompanying them, even though that was not finally communicated to the husband until 7 December. The reason for the timing of the communication was the husband had not put a firm proposal for purchase and payment of tickets until that time. I am satisfied that had the husband presented the wife with a proposal between August and 4 December the wife would have refused on that ground. That in my view would have been an unreasonable refusal.
In the end however the wife had available to her other reasons not to permit the children to go. Those reasons were her concern that the husband would retain J and that he would emotionally manipulate the children. In my view those reasons, albeit ones that I would find reasonable, were not the primary reason for the children not going although they may subsequently have become so. They are therefore in my view irrelevant to the mother's refusal which was based upon the husband not having an adult accompanying the children.
But if I am wrong in that view then there is another factor which effects the wife's retention of the children, even if retention of them was reasonable. That is because in my view there must be a temporal element to a refusal to provide contact, even if the excuse is reasonable. I accept that the wife had ongoing concerns about the children which were reasonable and that those concerns still exist. However, having advised the husband that the children would not be travelling, and having formed the view (which I find to be reasonable) that it would not be in their interest, the question is whether the wife was then permitted to simply sit back and wait for the husband to do something without taking any action herself.
In my view it is not reasonable for her to do so. Having formed the view the existing orders were not in the children's interest, the course that the wife should have adopted was then to apply to suspend the orders. She might also have explained fully to the husband her concerns for the safety of the children. What she did was to sit back, do nothing when it was her clear intention not to comply and when she believed the orders were not in the interest of the children, and wait until the husband brought an application for contravention. She had from 29 November when she formed her intention on this ground, until 23 December when the husband's application was filed, to bring an application to suspend the orders. She could easily have done so. She had done so on an urgent and ex parte basis the year before and she had sufficient funds in the bank to instruct solicitors.
Even if the wife's fear about the husband's emotional manipulation of the children and fear that he would retain J were the basis for her refusal to send the children for contact, and accepting that it was reasonable for her not to do so, in my view it was unreasonable for her once that intention was formed not to apply to suspend the orders. It was not as though she did not have advice. She contemplated her options and actively rejected the option of applying to the Court. She had the opportunity to consult with Dr L. It is not acceptable in my view for a party to form a view, however reasonable ,that it is not in the interest of the children for contact to occur in accordance with an order and then to sit back and take no action to vary the order but simply to allow a continuing breach on the basis that the reason for the refusal continues. For these reasons I would not be satisfied that the wife had a reasonable excuse for her contravention of the orders in terms of the Act and I find the breach proved.

Is the breach a serious one so that s.70NJ should apply?

Section 70NF applies where the Court is satisfied that a person has committed a contravention, does not prove that he or she had a reasonable excuse for the contravention, where no court having jurisdiction under the Act has previously determined that the person has without reasonable excuse contravened the same order and the court is not satisfied that the contravener has behaved in a way that showed a serious disregard for her obligations under the primary order. There has been no breach alleged by the wife of this order previously and accordingly this section would apply unless the court is satisfied that the wife behaved in a way that showed a serous disregard for her obligations under the order.
If the Court is satisfied that the wife has shown a serious disregard for her obligations under the order although there has been no previous contravention the Court can deal with the matter under s.70NJ. The powers of the Court under s.70NJ and s.70NF are different powers.
I have considered whether s.70NJ does apply and whether the wife has shown serious disregard for her obligations. In some senses she has, to the extent that she imposed a condition which was not in the orders and where she could have bought an application to enforce that obligation (as she had done the year before seeking security) and did not do so. However, to some extent the husband has contributed to the difficulties with the Christmas contact. In her August email to the husband the wife indicated that she was intending to travel to the United States to visit her parents with the children and proposed that the children then go on to stay with the husband. There was some dispute about the Christmas/Boxing Day period and the husband refused her request. Part of his refusal is based upon the fact that he did not have the funds. His mother subsequently agreed to pay the fares for the children. I am left with the impression that had the husband requested it of his mother she may well have done so earlier. He did not. Instead, he told the wife that he would not agree to the proposal and the comments in his email leave me in little doubt that a significant part of the husbands motivation was that he thought that the wife would be given the opportunity to have a holiday with the children in the United States with her parents (which I find quite reasonable) and he was determined to prevent that from happening. The words he used in his responses to the wife lead me to this conclusion, as do his own proposals for how he would arrange contact if the wife did take the children to the U S.
Given the husbands antipathy to the wife and to her partner I am left with the distinct impression that a large part of the husbands motivation for refusing to cooperate with this arrangement was to frustrate the opportunity to the wife to spend some time in the U S at less cost than would normally be the case and in circumstances that would enable to husband to have contact with the children at no more expense than usual to him. If he had been more accommodating and had been willing to try to work in with this arrangement, the children would have come to the U S for the Christmas holidays. Accordingly in all the circumstances I propose to deal with this matter pursuant to s.70NF of the Act.

What penalty should be imposed?

Section 70NG provides that where a contravention has been established and the court is satisfied that there is no reasonable excuse the court can do the following:
a)make an order directing either one or both the parties to attend before the provider of an appropriate Post Parenting Program. The husband lives in the U S and the wife lives in Australia the husband would not be available for any face to face counselling and I see little point in sending the wife to such a program. It seems inevitable that the parties will be involved in further litigation and there will possibly be psychological reports and potentially counselling. I do not see this as being a helpful option in this case;
b)the court can make a further parenting order that compensates the contact forgone. The husband concedes that compensatory contact is really of little use. He is entitled to contact during each of the holiday periods. He says that his financial position is such that he can not avail himself of that contact. There is no point in ordering any other contact and in reality no other time when it could take place, except perhaps during the Christmas holidays. During that time it would require the husband to have all of the Christmas holidays with the children and I can not see how that would necessarily be in their interest. I do not think that it is a realistic proposal in this case;
c)the court can adjourn the proceedings to allow either or both of the parties to apply for a further parenting order which would vary or discharge the original orders. The wife has flagged through her Counsel that she proposes now to make an application to vary the existing order. I have given the parties the opportunity to do that and made directions that it is to occur prior to my handing down a decision in this matter in order to hasten the progress of the inevitable application.
Having regard to the options available to me I do not propose to make any other order. In doing so I am mindful of the fact that the wife has already suffered a pecuniary penalty. In not making an application to vary or suspend the orders, and simply waiting for the husband to bring a contravention application, the wife has deprived herself of the opportunity to have the court address the issues relating to variation before the husband brought an application for contravention of the orders. Having not done so what has occurred is that the wife has now spent no doubt considerable sums on legal representation to deal with the contravention application. That might have been avoided had she brought an application in November to vary or suspend the orders. That is in my view a sufficient penalty and I do not propose to make any other order in relation to the contravention.

I certify that the preceding seventy-five(75) paragraphs are a true copy of the reasons for judgment of Bryant FM

Associate: Angela Patterson

Date: 21 March 2003