DEANE & PACE

[2017] FamCA 88

FAMILY COURT OF AUSTRALIA

DEANE & PACE [2017] FamCA 88

FAMILY LAW – CHILDREN – CONTRAVENTION – Where the mother is alleged to have contravened parenting orders – Where the mother conceded the breaches had occurred but argued she had a reasonable excuse – Where the mother claimed she had fears for the child’s safety in the father’s care – Where the evidence does not support the mother’s claims of reasonable excuse – Where the mother is charged with three counts of contravention.

FAMILY LAW – CHILDREN – INTERIM – Where orders are made for the child to have an introductory period of spending time with the father before the existing parenting orders are re-instated.

Family Law Act 1975 (Cth), ss 70NEB(4), 70NEB(5)

APPLICANT: Mr Deane

RESPONDENT: Ms Pace

FILE NUMBER: SYC 2263 of 2008

DATE DELIVERED: 23 February 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14 February 2016

REPRESENTATION

THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Sward Law

Orders

IT IS NOTED

1. That Ms Pace has, on 27 November 2015, 6 December 2015 and 11 December 2015, contravened the Orders made on 1 June 2011.

IT IS ORDERED

1. That the father’s application for costs be adjourned.

2. That within 28 days of the date of these Orders each party file any further evidence and written submissions upon which he or she seeks to rely in relation to the issue of costs.

3. That, unless both parties request that the matter be dealt with in Court, the issue of costs be dealt with in chambers without further appearance by the parties.

IT IS ORDERED PENDING FURTHER ORDER

1. That on Sunday 19 February 2017 and for the following three Sundays, B born … 2006 (“the child”) spend time with the father from 10.00 am until 6.00 pm, changeover to occur at McDonald’s Family Restaurant at Suburb C.

2. That from Friday 17 March 2017, the child spend time with the father in accordance with Order 1.6(c)(i) of the Orders made on 1 June 2011 and that thereafter, the child spend time with the father in accordance with those Orders.

3. That the substantive application be referred to a Registrar for directions.

4. That the Independent Children's Lawyer have liberty to re-list the matter before the Honourable Justice Rees in relation to any application for the child to attend counselling.

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 Deane & Pace 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 SYDNEY

FILE NUMBER: SYC 2263 of 2008

Mr Deane

Applicant

And

Ms Pace

Respondent

REASONS FOR JUDGMENT

1. Mr Deane (“the father”) and Ms Pace (“the mother”) are the parents of B who was born in 2006 (“the child”). Proceedings in relation to the child’s parenting have been on foot since 2008.

2. Final orders were made by consent on 1 June 2011 which provided for the child to live with her mother and spend time with her father.

THE CONTRAVENTION APPLICATIONS

1. The father has filed two separate applications alleging contravention of the Orders made 1 June 2011. However, the second of the two applications was not served on the mother until Friday afternoon before the commencement of the hearing on Tuesday and I declined to hear that application.

2. Also before the Court were applications in relation to the re-instatement of the child spending time with her father.

3. The first Contravention Application was filed on 16 December 2015. The father asserted:

   a)That on 27 November 2015, the mother removed the child, or caused her to be removed, from school before the father could collect her for the weekend in accordance with Order 1.1(c)(i);

   b)That on 6 December 2015, at 10.00 am, the mother refused to allow the child to go with the father in accordance with Order 1.1(c)(iii);

   c)That on 11 December 2015, the mother removed the child, or caused her to be removed, from school before the father could collect her for the weekend in accordance with Order 1.1(c)(i).

4. The father has erred in referring to Orders 1.1(c)(i) and (iii) as there are no such orders. I presume that the father intended to rely on Orders 1.6(c)(i) and 1.6(c)(iii) of the Orders made 1 June 2011.

5. On 12 May 2016, before Judge Monahan, the mother admitted the contraventions as alleged in the Contravention Application filed 16 December 2015, but indicated that she would raise a defence of reasonable excuse.

6. The mother was formally charged with the three counts of contravention. In relation to each charge she admitted that she had breached the Orders but claimed that she had a reasonable excuse.

7. The mother having admitted that she had breached the Orders as alleged means a prima facie case was found to have been established.

8. The mother relied on an affidavit sworn by her on 27 October 2016. Relevantly, she deposed that:

   On 24 September 2015, I received a phone call from my sister Ms D hereafter known as “[Ms D]” while she was at work because she had got a visit from the child and [the father]. While [the child] was sitting at the same table as [the father] and my sister [Ms D], [the father] told my sister that the people that he works for are the Italian mob and that he had been having fights with his boss about when they put him on to work when he has [the child] on his weekend.

   My sister told me that he said words to the effect of “My boss held a gun to my head and said that if I want to leave my job they will come after [the child] and her mother and the rest of the family.”

9. The mother deposed that Ms D was not sure if the child had heard what the father said.

10. The mother’s sister did not swear an affidavit in these proceedings.

11. The mother deposed that she contacted the paternal grandfather and told him of the allegation, and told him that the child would not be going to the father’s house until the mother was satisfied that the child was safe.

12. The mother deposed that:

    [The child] was so frightened by the whole experience from hearing her father say that he had a gun placed to his head that she and her sister in November 2015 rang 000 and told the operator that they needed to send the police to [the father’s house] because there was a murderer in the house.

13. The mother deposed that the child “has also been refusing to speak to her father because she is confused and scared that someone wants to shoot him and her and me.” However, the mother does not indicate to what time period this allegation relates and it cannot be assumed that it relates to the period between 27 November 2015 and 11 December 2015.

14. The mother deposed:

    I am aware that as a result of my decision to not expose [the child] to Risk of Harm that I have contravened the current orders, however I am of the belief that the risk to [the child’s] safety far outweighs any benefit she would have received by spending time with her father while this issue remains a real threat to her safety.

15. The mother had, without any consultation with the father, arranged for the child to see a psychologist, Ms E.

16. The father tendered three pages of notes produced by Ms E.

17. Ms E’s notes of a consultation on 10 July 2015 state that the mother “has a lot of anger” towards the father. The mother told Ms E that the child tells her that she wants the contact arrangements to continue as they are. The mother told Ms E that she feels she is coming to the point where she wants to send the child to live with the father because she “can’t handle it any more”.

18. On 14 August 2015, Ms E noted that the objective of the consultation was “Inappropriate disciple (sic) and inappropriate parenting style is casing (sic) behavioural issues in [the child].” The mother reported feeling overwhelmed. Ms E spoke to the mother about appropriate parenting strategies and noted that the mother accepted that she needed to make changes in her parenting of the child.

19. On 23 October 2015, Ms E noted “Her ex-partner [the father] has told [the child’s] aunty that the people he is living with are gangsters, and he is having some issues at work, if he leaves his job then they have told him that they will come after [the child] and or her mother”.

20. Ms E spoke to the child alone. She noted that the child said that her mother told her that “dad needs to get better” and that she would not be visiting at his house. Ms E noted:

    She reported missing her grandmother, and her aunt and uncle (dad’s sister and dad’s brother), she also reported sometimes she sometimes (sic) misses dad.

    She reported no issues when she visits dad, she reported she enjoys the time with dad. When she is with her father she reported that she sometimes stays with her paternal grandparents or sometimes with (sic) her paternal aunt’s house when her father is working. When her father is home she reported that she spends her time by watching tv, ridding (sic) the bike, and going to the park.

    She reported that dad has not reported to have any issues with work…

21. The mother consulted a psychiatrist for assessment on 8 December 2015, presenting with depression and anxiety. The psychiatrist reported, inter alia, “She is worried about the future of her daughter, however, denied any concerns about her safety.”

22. Neither Ms E’s notes, nor the report of the psychiatrist, support the mother’s contention that she believed, at the relevant time, that there was a real risk to the child’s safety.

23. The mother did not explain why, if she was told of the alleged conversation on 24 September 2015, it was not until 27 November 2015 that she decided to withhold the child from time with her father. 

24. I do not accept that the mother had a reasonable excuse for failing to comply with the Orders for the child to spend time with her father on 27 November, 6 December and 11 December 2015.

25. Accordingly I find that the mother contravened the Orders as alleged.

PENALTY

1. The Contravention Application falls to be considered under the provisions of Subdivision E (of Division 13A, Part 7) of the Family Law Act 1975 (Cth) (“the Act”), which applies to less serious contraventions.

2. The powers of the Court are wide and include requiring the parent to attend a parenting program; making an order for “make up time”; adjourning to allow the parties to make an application to vary the current orders; requiring a parent to enter into a bond; or imposing a fine and costs.

3. Section 70NEB(4) of the Act requires that consideration be given to the child spending time with her father to compensate him for the time missed, provided, in accordance with s 70NEB(5) of the Act, that this is in the child’s best interests.

4. The father advocates for an order for “make up time”.

5. I do not propose to make that order.

6. After reserving judgment in relation to the contravention, I heard and determined the parties’ competing applications for parenting orders and the time the child is to spend with her father.

7. As will be explained later in these reasons, I have made orders which, after four periods of day-time visits, will re-instate the regime specified in the Orders of 1 June 2011. Those orders provide for the child to spend three weekends out of four with her father. To order the child to spend every weekend with her father, which would be the only time available for the “make up time”, would have the effect that she has no weekend time with her mother or her half siblings and would not be in her best interests.

8. The father also seeks costs of the proceedings. The imposition of an order for costs is one of the available consequences, if appropriate, flowing from a finding that an order has been contravened.

9. Although he was unrepresented at the hearing the father had engaged solicitors in the past and the Contravention Application filed 16 December 2015 was prepared by solicitors.

10. There was insufficient evidence before the Court to make an assessment of the matters referred to in s 117(2A) and I propose to adjourn the consideration of the father’s application for costs and require further evidence.

INTERIM PARENTING

1. An Independent Children’s Lawyer (“ICL”) has been appointed for the child. The ICL last saw the child in November 2016.

2. Both parents want the child’s time with her father to resume. The father wants the time to be in accordance with the Orders made 1 June 2011, and to commence immediately. The mother wants a different regime with an introductory period of day-time only contact and then an arrangement where the child sees her father for one weekend each month.

3. The ICL advocated for a short introductory period and then the re-instatement of the regime provided in the Orders of 1 June 2011.

4. The father relied on an affidavit sworn by him on 1 April 2016 and affidavits sworn by the paternal grandmother. The mother relied on an affidavit sworn by her on 16 August 2016.

5. The Court had the assistance of a Child Inclusive Memorandum prepared by the Family Consultant following interviews on 2 August 2016.

6. The Family Consultant did not have the advantage of the documents which were produced on subpoena and particularly those which were tendered in the father’s case.

7. The Family Consultant listed the issues which were alleged by the parents to constitute risks to the child. It is necessary to bear in mind that the child had not spent overnight time with her father since September 2015 and that her time since then had been at the mother’s home and as allowed by the mother. Not all of those issues have been canvassed in the affidavits relied upon by the parents.

8. In summary, the Family Consultant identified the following issues:

   a)     Drug and alcohol issues. Each of the parents alleged that the other was using cannabis. Both agreed that they had used cannabis together.

   b)     The father alleged that in 2009 and 2010 the mother was physically abusive towards the child, hitting her with a stick.

   c)     The father alleged that the child had a picture of her genital area on her iPod. The father told the Family Consultant that he asked the child about the photograph and she told him that she had a boil on her bottom that she wanted to show her mother. The father said he did not have any concerns that the child was being sexually abused. However, the father had made a report to the Department of Family and Community Services when he saw the photograph and, in the interview with the Family Consultant, the father expressed concerns about there possibly being other photographs of the child that he alleged could be used for child pornography.

   d)     The mother alleged that the child’s emotional and psychological wellbeing was at risk in the father’s care. She claimed that the father tells the child that the mother will go to jail and she believes that the father denigrates her and her family to the child. The mother alleged that the father is “obsessive” about the child sitting on his lap. He kisses her on the lips, picks her up and carries her like a baby, and watches her shower. (It was not clear how that information could have been available to the mother. And it is not information which is contained in her affidavit material.)

   e)     The Family Consultant identified the incident in September 2015 and the alleged conversation between the mother and her sister about the threat to the mother and the child’s safety.

9. The Family Consultant commented:

   From both parents’ accounts, the co-parenting relationship is extremely poor and could be considered toxic. Both parents allege that the other has been verbally abusive and aggressive towards them at changeovers and that this has, on occasions, occurred in front of [the child].

   Notwithstanding the parents separating in 2007, they appear to be at an impasse in their co-parenting relationship and stuck in dysfunctional ways of communicating with each other.

10. The Family Consultant interviewed the child and reported:

    In interview, [the child] impressed as being a confident and sociable child, who presented as more mature than her age. …

    When asked why she thought she was at Court, the child said “My dad wants me all to himself; he always asks ‘Do you want to get your mum in trouble?’” She then added, “[Dad] says ‘your Mum’s going to jail’”.

    [The child] said that, when she was young, her mother “smacked me on the bottom and hasn’t hit me on the bottom with a pink stick”. She said that her father went to the police about her mother hitting her with a stick but [the child] said “Mum never did it”. When [the child] was asked how she knew her mother did not hit her with a stick, [the child] said “Mum keeps on telling me. She says ‘I never smacked you’”.

    [The child] said that her parents “keep on fighting about me” and this makes her feel “stuck in the middle” and “really sad”. She said that her parents sometimes fight in front of her and that she gets worried if her parents are near each other.

    [The child] said that she gets along very well with her mother, [her step-father], who, she said, she calls “Dad”, and her sisters … She spoke positively about her relationship with her mother.

    [The child] said that her father “kind of lies to me”, he is “a good parent; we went to Smiggle to buy stuff” and “he makes good food”. In addition, [the child] said that her father “tells lies to mum”. For example, [the child] said that she stayed for longer in her father’s care because he told her mother that he had to work and was unable to take [the child] home. However, [the child] said that her father did not go to work.

    With regard to spending time with her father, [the child] said, “We don’t really do much, he’s always working”. [The child] said that she spends time with the maternal grandmother playing games and she accompanies the paternal grandfather to their bottle shop. She said that her father has a Coke bottle that he keeps next to his bed that she has seen smoke come out of this bottle, which her father blows out of his bedroom window. [The child] said that the bottle has brown water in it and that the smoke makes her father’s room “stink”. She said that she asked her father about the bottle but he told her that he did not want to talk about it.

    [The child] said that she heard her father tell her maternal aunty, “[Ms D]”, a story that “creeps me out”. She said that her father said, “My boss held a gun to my head and [said] if I leave my job my boss will come after [the child] and her mother”. [The child] said that she has been worried that “It might come true”. [The child] said that she told her mother that she did not want to spend overnight time with her father after she heard this story.

    [The child] said that she has been having nightmares that “people are going to kill me”. She said that the nightmares happen on Friday and Tuesday nights and that she wakes up and goes into her mother’s bedroom or gets into bed with her sisters.

    [The child] thinks that she does not get enough time to spend with her mother, [her step-father], and her siblings on the weekend because she only spends one weekend per month with them. [The child] said that she was seeing a psychologist because “I was getting really angry and clenching my fists”, but that her father stopped her attending. She said that seeing the psychologist helped her because she was writing in her diary and not clenching her fists anymore.

    [The child] said that her sister [F] took a photo of her ([the child]) bottom because she had a boil and wanted to send a picture of it to her mother. She said that her father saw the photo and she believes that he deleted this and all of her other photos from her iPod. [The child] said that she asked her father if he had deleted her photos but he told her that he did not want to talk about it.

    [The child] said that when her father and paternal grandmother visit, her father is usually on his mobile phone and she plays with the paternal grandmother.

1. The Family Consultant reported:

   This assessment of [the child] suggests she is an articulate, confident and bubbly child. However, a concerning picture of [the child’s] emotional and psychological wellbeing emerged from this assessment. It appears that [the child] is caught in the middle of her parents’ ongoing conflict and ever increasing acrimonious relationship, and this is causing her to feel worried and sad. [The child] spoke positively about attending the psychologist and said that she found these appointments to be helpful.

   It appears that [the child] has been privy to information about adult issues, litigation and the parental conflict that she ought not to be. It is concerning that the parents continue to talk about each other in such a disparaging way, and it is most likely the case that this is occurring in front of [the child].

2. The Family Consultant concluded that “[The child] receiving professional psychological assistance is considered to be a significant protective factor.”

3. The concerns which the child expressed to the Family Consultant were not concerns that she expressed to her psychologist in late 2015. Since that time, the only time that she has spent with her father has been spent at the mother’s home on a fortnightly or monthly basis and it would not appear that the matters of which the child now complains to the Family Consultant occurred after September 2015.

4. Some of the matters of which the child complains are not matters that would be within her knowledge. For example, the child’s comments to the Family Consultant about her mother telling her that she never smacked the child suggest that the child is involved by her mother in conversations about the mother’s grievances about the father.

5. Similarly, it did not appear, when the child spoke to her psychologist Ms E, that she had, herself, overheard the conversation alleged to have occurred between her aunt Ms D and the father in September 2015, although she now, it would seem, repeats the conversation word for word and identically with the version given by the mother. It is likely that the child has learned that version from her mother.

6. If the child’s relationship with her father is to be allowed to flourish, it is necessary that there be as little contact as possible between the parents and as little opportunity for acrimony in the child’s presence as can be arranged.

7. Each of the parents should understand that denigrating the other parent to the child is psychologically damaging for the child.

8. In order to achieve as little contact as possible between the parents, the Orders will provide for changeover to take place at a neutral venue. The father proposes McDonald’s at Suburb C being the midpoint between their two homes. The mother proposed that the child be collected from her home but this, for the reasons I have already identified, is not appropriate.

9. Accordingly, the Orders will provide for the child to spend four periods of day‑time only contact with her father between 10.00 am and 6.00 pm with the changeover to take place at McDonald’s at Suburb C, and thereafter the regime which was ordered in 2011 will continue.

10. The parents should in no doubt be aware that Order 1.23 made on 1 June 2011 restrains each of them from denigrating the other party or allowing any other person to do so in the presence or hearing of the child. Each of the parents should be warned that those Orders must be obeyed.

11. There was no application before me in relation to counselling for the child. The recommendation of the Family Consultant for the child to engage with a psychologist is clear and both parents should give serious consideration to ensuring that this occurs. It may be that the ICL can assist the parents in arranging a suitable psychologist. If he is not able to achieve that, the matter can be re-listed before me on short notice by arrangement with my associate in relation to that issue.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 23 February 2017.

Associate:

Date:  23/02/2017