Deniz and Yilmaz

[2019] FamCA 817

FAMILY COURT OF AUSTRALIA

DENIZ & YILMAZ [2019] FamCA 817

FAMILY LAW – CONTRAVENTION – Where previous orders provide for the paternal grandparents to engage in family therapy for the purposes of restoring their relationship with their grandchildren and for reintroducing spending regular time with them – Where the orders provide that the mother is restrained from preventing or hindering the children for attending all appointments – Where orders further provide for a regime of time the children are to spend with the paternal grandparents commencing three months from the date of orders – Where the paternal grandparents allege that the mother has not done anything to comply with the orders – Where mother did not attend the hearing – Where matter heard undefended – Three of the five contraventions proved.

Family Law Act 1975 (Cth) s 70NAC

APPLICANTS: Ms I Deniz and Mr H Deniz

RESPONDENT: Ms Yilmaz

FILE NUMBER: PAC 4311 of 2010

DATE DELIVERED: 15 October 2019

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 15 October 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANTS: Adams Jones Solicitor

SOLICITOR FOR THE RESPONDENT: No Appearance

Orders

1. For the reasons given today I find the contraventions on 14 January 2019, 25 January 2019, 29 March 2019 proved and that there is no reasonable excuse for the contravention.

THE COURT NOTES

A.    The Applicants will be seeking an order to vary the contravened order and an order requiring the Respondent to enter into a bond.  For these reasons, the Respondent is required to attend at the next court event and it is requested that the Independent Children’s Lawyer previously appointed in the proceedings Ms Stanford be reappointed as the variation of the contravened order being sought by the applicants may be substantial.

THE COURT ORDERS THAT

1. The proceedings in relation to penalty and variation of the contravened order are listed for hearing at 10am on 21 November 2019.

2. The Respondent mother is required to attend.

3. The Applicants are to file a Minute of Order setting out the variations sought and in the event that they seek to file a further Initiating Application this is to be filed by 15 November 2019.

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 Deniz & Yilmaz 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 PARRAMATTA

FILE NUMBER: PAC 4311 of 2010

MS I DENIZ and MR H DENIZ

Applicant

And

MS YILMAZ

Respondent

REASONS FOR JUDGMENT

1. These proceedings concern the parenting arrangements for two children, B, who is now aged 12, and C, who is now aged 11. 

2. The most recent proceedings in relation to these children were initiated by their paternal grandparents, who are the applicants in this contravention hearing.  Their son, who is the children’s father, has not participated in the proceedings or, as I understand it, had any relationship or involvement with the children for many years. 

3. The parents of the children were previously involved in Court proceedings which were initiated in the Federal Magistrates Court, as it was then known, and final orders were made in April 2013.  In those proceedings positive findings were made about the relationship between these applicants, the paternal grandparents, and the children. 

4. The paternal grandparents, although having had a close and involved relationship with the children, had not seen the children for around six years, and they themselves commenced proceedings in this Court in October 2015.  For the purposes of the renewed proceedings an expert report was prepared by a psychiatrist, and the hearing proceeded before Carew J of this Court at this registry in November last year. Her Honour delivered judgment on 7 December 2018 providing for the applicants to spend time with the children in accordance with a structured approach that had been recommended by the expert. 

5. I might add at this point that the background to the dispute before both judges in both sets of proceedings indicate that there were many difficulties for the children when they were being raised by the mother and father when that relationship was intact and, in particular, that the parental relationship was characterised by family violence.  It would appear, due also to some serious shortcomings in each of the parents’ capacity to care for the children, for that reason the paternal grandparents had very extensive involvement in the children’s care, for all of the children’s lives.  The history of the relationship between the paternal grandparents and the children however, in the context that they have been living with their mother throughout the proceedings, has been problematic in an ongoing way. 

6. It suffices to say that the paternal grandparents have been extremely persistent over many years in wanting to reconnect with their grandchildren and restore the relationship that they had with them which was both loving and protective. 

7. The capacity of the mother to facilitate the relationship with the paternal grandparents as well as the questions of any harm that may be suffered by the children if they do or do not have a relationship with the paternal grandparents were the central issues to be determined by Carew J in the most recent proceedings.  Ultimately, Her Honour’s findings in relation to these questions were that it was in the children’s best interest to spend time with the paternal grandparents, and while they had not spent time with them for about six years, historically they had had a very close and loving relationship with them.

8. Her Honour reiterated that the mother’s allegations about risks of harm said to have been posed by the grandparents were the subject of judicial findings after a five-day trial ending in 2013.  Her Honour also agreed that, on the evidence before the trial judge at that stage, the trial judge was not satisfied that the paternal grandparents did pose an unacceptable risk of harm to the children, which her Honour adopted in her Reasons for Judgment. Her Honour also concluded that the mother suffered from high anxiety and at times struggles to cope and that the children had, in the opinion of the expert, which her Honour adopted, an enmeshed relationship with their mother and that part of it was that they carried the burden of being overly concerned for her mental health.

9. The expert had recommended that, in the hope of giving the children’s chance at being reunited with their grandparents the best prospect of success, that this should occur in a structured way through clinical intervention with a family therapist, and that is the approach that her Honour adopted in her orders. 

10. In order to overcome the expert’s prediction, which I have to say was obviously absolutely accurate, that the children may refuse to attend family therapy, her Honour made an order proposed by the independent children’s lawyer and the applicants to introduce an independent person to be involved in the collection and delivery of the children to and from family therapy.  That arrangement was described as removing the mother from the scenario, at least in the context of relying upon her to deliver the children to family therapy or being present.

11. Accordingly, orders were made adopting that approach, and it is those orders which are said to be contravened, essentially, in their entirety, in this contravention application.  For the reasons I will come to in a moment, I find those contraventions proved. 

12. The general regime of the orders made by her Honour on 7 December 2018 was that the paternal grandparents were required to do all things necessary to engage in family therapy with a nominated therapist or such other therapist from that service as recommended by that therapist, for the purposes of restoring their relationship with their grandchildren and for reintroducing spending regular time with them.

13. And for those purposes various other orders are made, including, in particular, orders:

    2(b)     that the paternal grandparents were responsible for organising a nominated contact service to transport the children to and from family therapy appointments…

    (c)      that each of the paternal grandparents will engage in the family therapy by attending all appointments… and each will do all things necessary to ensure that the children attend for appointments… and

    (d)      that the mother is restrained from preventing or hindering the children for attending all appointments. 

14. There was then a regime of time that the children were to spend with the paternal grandparents which was to commence, in any event, no later than three months from the date of the orders, that is, by 7 March 2018, whether or not that therapy had occurred, but certainly, it was hoped that it had. 

15. Essentially, in broad terms, the contravention alleges that the mother simply did nothing required of her to ensure that those orders were complied with. 

16. Specifically, the first allegation is that on 14 January 2019 the mother did not respond to the nominated person from the agency who was responsible for organising the transportation of the children to and from the family therapy appointments, which, it is alleged, amounts to a contravention of the restraint imposed upon her, under order 2(d), from preventing or hindering the children attending all appointments.

17. The evidence which is contained in the affidavit of the paternal grandfather and his various annexures, which were marked as exhibit 1 in the proceedings, is to the general effect that he went to extensive efforts to organise all that he was required to do under the orders and, in particular, to engage in family therapy with the nominated psychologist and to carry out his responsibilities for organising the nominated contact service to transport the children to and from the family therapy appointments pursuant to order 2(b).  His annexures include extensive email communication with the contact service commencing three days after the orders were made for the purposes of making those arrangements. 

18. The director of the contact service engaged in extensive contact with both the grandparents - the grandfather, in particular - and those responsible for administrative arrangements at the therapist’s rooms and also with the lawyers involved.  According to both the grandfather’s affidavit and from the contact service itself, the mother needed to engage for the purposes of facilitating that contact or, at the very least, not prevent or hinder the children from attending those appointments. 

19. The date specified in the alleged contravention is 14 January, and according to the grandfather’s affidavit, on that date he received an email from the director at the contact service advising that the mother had not responded to any of three voice messages and two letters sent to her, and the emails annexed to the grandfather’s affidavit are to that effect.  The home address of the mother is known to have been the address that she has resided at for a lengthy period of time in the proceedings, including up until the current time, and I accept that letters sent to that home address would inevitably have been received by the mother.

20. I am satisfied to the requisite standard, being the balance of probabilities, that the mother did breach the restraint on preventing or hindering the children from attending those appointments.  There had, at that stage, been an appointment made for therapy and by refusing to engage with the contact service which was required to be the agency responsible for transporting the children, and on that basis, I find that contravention proved. 

21. The next contravention in time is said to have occurred on 25 January 2019, and again, it is alleged as a contravention of order 2(d), being the restraint on hindering the children from attending the appointments.  It is alleged that on that day the mother advised the children’s school not to allow the children to be released to the contact service for changeover. 

22. The evidence of the grandfather in relation to that contravention is that he had made appointments with the family therapist for 30 January and 27 February, and they were to be between the therapist and the children only.  On 25 January he received an email from the relevant person at the contact service advising that the appointment for 30 January had been cancelled because the mother had instructed the children’s school not to release the children to the contact service.  The email attached to his affidavit and forming part of exhibit 1 is in those terms. 

23. The email indicates that the director of the contact service had been liaising with the principal of the school that was attended by the children, and the principal was concerned about the school’s legal position in relation to facilitating handover of the children to anyone other than the mother.  The principal was apparently seeking legal advice in relation to that issue but at that stage had not received that legal advice. 

24. The obligation on the mother, in circumstances where she was aware that orders were made for the paternal grandparents to engage in family therapy with the children was not to prevent or hinder the children attending appointments.  The arrangements had been made for the changeover to occur at school, that by instructing the school not to allow the children to be released for changeover, she did breach that restraint.

25. I draw the inference that, given the school’s advice to the contact service is they were not prepared or had concerns about their legal position if the mother did not give consent that the mother, in fact, did not give her consent, and on that basis, I find that contravention proved. 

26. The third contravention is alleged to have occurred on 20 February 2019.  It is actually the last listed  in the Contravention Application, and that is also said to be a contravention of order 2(d), being the restraint on the mother in interfering with the children – or hindering the children spending time with the grandparents. 

27. According to the grandfather’s affidavit, he had next made arrangements for the children to attend at family therapy on 28 February 2019, and by that stage the difficulties that the school had in relation to their legal position had been overcome, and the contact service had received advice from the school that they could hand the children over so long as the children were not distressed and were happy to go.

28. There were concerns about the way in which the children might present in light of the findings of the previous trial judges about the children’s enmeshment with their mother and their concern about their mother’s feelings and mental health. It was therefore quite appropriate, in my view, for the grandparents to have requested a family friend, who had previously been a friend of the mother, to act as what has been described as an intermediary to make contact with the mother for the purposes of trying to get her to assist in relation to the children.  According to the grandfather’s affidavit, which contains hearsay rather than statements from the actual person, (the intermediary), the intermediary attempted to engage the mother in conversation, but the mother told the intermediary to “piss off” or she would call the police. 

29. In my view, it is not completely clear, even if I accepted the evidence in question, on a hearsay basis, that in rebuffing the person who the grandparents had engaged to assist them, that the mother was hindering or preventing the children from attending appointments.  The content of the conversation indicates that what the intermediary was attempting to do was, in her words, “bring some presents” from the grandparents and “assist the children and the grandparents”.  There is no indication that the mother would have had any awareness that what the intermediary was doing had anything to do with assisting and arranging the appointments, and for that reason, I am not satisfied as to that contravention.

30. The next alleged contravention in time was said to have occurred on 15 March 2019.  That is the fourth one in the contravention application, which is, again, said to be a breach of order 2(d), that is, the restraint on hindering or preventing and also said to be a breach of order 3(a), which provides for:

    …the children to commence spending time at the time recommended by the therapist but, in any event, no later than three months from the date of the order, starting from the conclusion of school on that day.

31. According to the details of the particulars of the alleged contravention, the mother is said to have told another mutual friend of the applicant and the children that the applicants were trying to kidnap the youngest child and that they could not see the children. 

32. According to the grandfather’s affidavit, on that date, 15 March 2019, when he and the paternal grandmother attended upon the youngest child’s school and waited by the exit the child came out of the exit gate, and the grandparents attempted to engage him in conversation.  This child then went back into the school and started to cry and refused to talk to them and went home with some other boys.

33. On the same day the grandparents then went to the older child’s school and waited for her near the exit.  They engaged in conversation with other children who appeared to be about her age but were informed by one of those children that the oldest child had not come to school and had not attended in the last few weeks.  On the same day they started engaging with the father of one of those children who had been the same age as the oldest child and asked him to assist them in giving the children some presents and spending time with the children, in accordance with a Court order.  This person apparently offered to go around to the mother’s home and see if the mother and child were there. 

34. There are some difficulties, in my view, in relation to finding a contravention proved on this occasion for a number of reasons.  

35. First of all, the orders do not specify an exact starting date, about when it was intended that the children would spend time with the paternal grandparents, pursuant to order 3.  Secondly, and more fundamentally, even if it were accepted that the mother told the friend of the grandparents who had offered to assist in relation to spending time that the grandparents wanted to kidnap the child at the school gate, the reason that the orders were not complied with on that date was because the oldest child was, in fact, not at school, and the youngest child simply refused to go with the grandparents, and they quite sensibly did not push the point any further.  Rather than the mother contravening an order, her statements about kidnapping, in fact, came after the younger child had refused to go with the grandparents. 

36. On the basis of the foregoing evidence, I do not find that contravention proved. 

37. The final contravention is alleged to have occurred on 29 March 2019.  It is contravention number 3 in the application which alleges on that day the mother breached order 3(a), being the order that the children spend time with the paternal grandparents from the conclusion of school. 

38. Once again, I have a difficulty because there is no starting date for the time to commence in the final orders.

39. The paternal grandfather deposes that on 29 March 2017 he and the paternal grandmother waited outside the exit gate of the youngest child’s school at the end of the school day and that saw the mother walk into the school.  The paternal grandmother greeted her and asked “if we could talk nicely”.  He deposes that the mother “was quiet” and “did not communicate at all” and that they waited at the exit gate until 3.30 and that neither the mother nor the youngest child came out of the school gates. 

1. The grandfather further deposes that the paternal grandparents subsequently encountered the mother and the children on the street, and they slowed down to say hello to the children, but the mother said something to the children, and then they both ran into one of the neighbour’s homes.  The paternal grandmother then leaned out of the car and attempted to politely engage with the mother, and she swore at them and said that she would call the police if they came around again and would take an AVO against them. 

2. This alleged contravention, in my view, is more easily capable of being found proved as the interaction and the contact with the mother, who had the obligation under the order, was direct rather than depending upon hearsay.

3. Section 70NAC of the Act defines the meaning of contravening an order affecting children as follows:

   (a)where a person is bound by the order, that the person has intentionally failed to comply with the order or made no reasonable attempt to comply with the order. 

4. In my view, the mother’s attitude towards the grandparents must be considered in circumstances where she was aware that the orders provided for the children to spend time with the grandparents, in accordance with order 3(a), each alternate Friday from after school until 7 pm, and knowing that two weeks before there had been an attempt by the grandparents to collect the children from the school, in accordance with the order that date was the closest to the three months from the date of the orders as specified in the orders. Knowing that there was an obligation upon her for the children to spend time with the grandparents in my view the mother’s conduct amounts to an intentional failure to comply with the order or, at the very least, to making no reasonable attempt to comply with the order.  For the forgoing reasons I find that contravention proved.

5. In summary, I find the first three contraventions in the contravention application proved but do not find the other two proved.  However, I am satisfied, in totality, that no steps have been taken by the mother to have the orders complied with, in a general sense, and that in the specific occasions where I have found that she has hindered the operation of those orders, I am satisfied of that fact which I am required to be satisfied in terms of finding the contravention proved. 

6. The mother has had an opportunity to be here today and to give evidence of any reasonable excuse for contravening the orders.  She has chosen not to be here today.  The matter has been dealt with on an undefended basis, and accordingly, I am satisfied that there is no reasonable excuse for any of the contraventions found proved.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 15 October 2019.

Associate: 

Date:  8 November 2019