Dickens and Dickens and Anor (No 2)

[2014] FamCA 1227

FAMILY COURT OF AUSTRALIA

DICKENS & DICKENS & ANOR (NO 2) [2014] FamCA 1227

FAMILY LAW – CHILDREN – Contravention – Where the father’s application alleges three counts of contravention by the mother – Where it was found the mother breached parenting orders without reasonable excuse on two occasions – Where the third alleged contravention was dismissed – Where proceedings were adjourned for submissions in relation to sanctions. 

Family Law Act 1975 (Cth)

APPLICANT: Mr Dickens

1^ST RESPONDENT: Ms Dickens

2^ND RESPONDENT: Mr D

INDEPENDENT CHILDREN’S LAWYER: Mr Moylan

FILE NUMBER: SYC 739 of 2010

DATE DELIVERED: 20 May 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 20 May 2014

REPRESENTATION

FOR THE APPLICANT: Mr Dickens, in person

SOLICITOR FOR THE 1^ST RESPONDENT: Ms Adams, solicitor of Hamish Cumming Family Lawyers

COUNSEL FOR THE 2^ND RESPONDENT: Mr Cook

SOLICITOR FOR THE 2^ND RESPONDENT: Delaneys Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Moylan of Moylan Family Lawyers

Orders

1. That the Court notes that the mother admits that on 5 April 2012 without reasonable excuse she contravened order 4 of the orders made by the Federal Magistrates Court on 20 December 2011.

2. That Mr Moylan may be excused noting that the father has been extremely slow in his cross-examination of the mother and Mr Moylan has been excused in order to endeavour to save the public purse some funds.

3. That the proceedings for alleged contempt against Mr D as identified at items 7, 9 and 15 of the father’s Application filed on 15 October 2013 is listed for hearing at 10:00 am on 4 September 2014.

4. That the Court notes that Mr D, his counsel and instructing solicitor have waited the whole of today for the father to complete his contravention proceedings against the mother.

5. That the Court notes that the proceedings against the mother have been unduly protracted by the father who is self-represented failing to confine his cross-examination to relevant matters.

6. That within 7 days the father inform Mr D’s solicitor in writing about which paragraphs of which affidavits he will be seeking the Court’s leave to rely on in his allegations of contempt proceedings.

7. That the Court notes that the mother conceded at the earliest opportunity today that on 5 April 2012 without reasonable excuse she contravened paragraph 4 of the orders made on 20 December 2011.

8. That the Court notes that the Court is satisfied that without reasonable excuse the mother contravened order 8 of the orders of the Federal Magistrates Court of 20 December 2011 on 3 May 2013. 

9. That the father’s application for contravention in respect of the alleged breach of the said orders on 1 June 2012 is dismissed.

10. That these proceedings are adjourned to 10:00 am on 4 September 2014 for submissions in relation to sanctions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dickens & Dickens has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 739 of 2010

Mr Dickens

Applicant

And

Ms Dickens

1^st Respondent

And

Mr D

2^nd Respondent

REASONS FOR JUDGMENT

1. These are contravention proceedings.  The parties in the proceedings are Mr Dickens to whom for convenience I shall refer as “the father” and Ms Dickens to whom for convenience I shall refer as “the mother”.  The father filed an amended contravention application on 3 October 2013 in which he alleged a considerable number of contraventions. But after some discussion with me on an earlier occasion, the father informed the mother, through her solicitors, that he proposed to press the alleged breaches which were alleged to have occurred on 5 April 2012, 1 June 2012 and 3 May 2013.

2. I informed the father at the outset of these proceedings today of the broad format that this would take.  He made a submission that there had been certain findings made by Rees J many months ago about a prima facie case. I informed the father that in my view the appropriate way to proceed was for the complaints and the evidence in its entirety to be put before me and that I did not propose to proceed only on a case for reasonable excuse. In those circumstances, the father identified the evidence which he said was in support of each of the complaints and I dealt with them in turn, initially, to a prima facie case.

3. I turn, firstly, to the complaint about 5 April 2012. The father alleged that on 5 April 2012 the mother breached paragraph 4 of the orders which were made on 20 December 2011 in relation to the parties’ two children, B, born in 2001, and C who was born in 2003.  Paragraph 4 of those orders is as follows:

   4. The Mother have sole parental responsibility for the Children on condition that:

   (a) Unless an emergency, the Mother advise the Father in writing at least a month in advance of any major decision she proposes to make, with the reasons for her proposed decision; and

   (b) The mother have regard to any issues raised by the Father in response, before finalising her decision; and

   (c) The mother notify the Father in writing when the final decision has been made.

4. The father’s complaint, as set out in his amended contravention application, is that:

   The mother, without reasonable excuse, subjected the children to psychiatric assessments and therapy with psychiatrist, [Dr F], without consulting the father in writing a month in advance, without providing him the reasons for her decision, without considering his input and without notifying him after she had made the decision to subject the children to psychiatric assessments and therapy.

5. Without the Court having to consider any evidence about this matter the mother readily conceded that she had not informed the father in writing, as she was required to do, or discussed the matter with him. It was conceded that she did not have a reasonable excuse for doing that. In those circumstances, I indicated that I would find against the mother in respect of that matter.

6. I noted that the mother conceded at the earliest opportunity on 20 May 2014 that on 5 April 2012, without reasonable excuse, she contravened paragraph 4 of the orders made on 20 December 2011.

7. I now move to the other two complaints. In relation to 3 May 2013, the father alleged that the mother had breached paragraph 8 of the orders made on 20 December 2011, that is, without reasonable excuse she did not do what she was required to do under the orders to ensure that both C and B were available at school on a Friday of a weekend which their father was to have them to spend time with him over that weekend.

8. The relevant part of paragraph 8 provides as follows:

   … The children spend time with the Father as follows:

   (a) During school terms, on each alternate weekend from after school Friday until before school on Monday commencing on the second weekend of each school term in even-numbered years, and the first weekend of each school term in odd-numbered years…

9. The mother readily conceded that paragraph 8 of the orders provided for the children to spend time with their father on the occasion of 3 May 2013.  The mother also readily conceded that the children did not spend time with their father on that occasion.  In those circumstances, I indicated that, in my view, the appropriate finding was a prima facie case of a breach.

10. In respect of 1 June 2012, the mother’s approach was the same.  This was a similar breach.  At least, it was an alleged breach in respect of weekend time which it was conceded was to commence on 1 June 2012 and, in relation to that allegation, the mother conceded that the boys did not spend time with their father on that occasion, that they weren’t available at school on that occasion and I made a finding about a prima facie case in respect of that matter. The matter then moved to the mother’s case for a reasonable excuse.

11. After a short adjournment the mother presented to me an affidavit which she swore or affirmed on 28 January 2014.  This provided evidence by her in respect of each of the alleged breaches on 3 May 2013 and 1 June 2012.  The material is not long and I will simply read it in its entirety into these reasons.  Paragraph 11, this relates to 3 May 2013. 

12. Paragraph 11:

    I admit to this contravention.  I say that I have a reasonable excuse.

13. Then the mother goes on to provide some information which is really not helpful but which, for completeness, I will read. 

14. Paragraph 12:

    The events that occurred prior to 3 May 2013, those same events have given rise to these current proceedings.  For further detail I refer to my previous affidavits filed in those proceedings.  On 12 April 2013, both children ran away from school to avoid being collected by their father and walked a considerable distance to [Suburb L] Police Station.  I was contacted by the police to come and collect the children.  Although I had serious concerns following this event, the children returned to their father for the school holidays on 21 April 2013.

15. Paragraph 13:

    On 23 April 2013, [B] alone ran away from his father’s property and walked alone for some kilometres to [Suburb K] Police Station where I was again contacted and asked by the police to collect him.

16. Paragraph 14:

    I was concerned about the safety of the children and offered their father to attend with me for family therapy.  I received no response.

17. Paragraph 15:

    I considered my position carefully and without repeating my previous evidence in these proceedings made a decision to suspend the time that the children were having with their father until the reasons behind their actions in running away and things they were telling me were investigated.  I proposed family therapy first and secured an appointment with [Dr U] who was our single expert in the previous proceedings on 13 May 2013 to assess the situation as a single expert.

18. Paragraph 16:

    On 1 May 2013, I advised the father through my solicitors that the time would be suspended.

    And then annexed to the affidavit was a copy of the letter.

19. Paragraph 17:

    I confirmed this position by letter on 7 May 2013.

    Again, another annexed copy of that letter. 

20. The father cross-examined the mother in respect of her evidence in relation to the matters the subject of the complaint about 3 May 2013.  What emerges is that it is clear that the children were to have weekend time with their father on that occasion.  On 1 May 2013, the father had received a letter from the mother’s solicitors informing him that C had told his mother that the father had encouraged him to run away from his mother’s home to the nearest police station and that B had been telling the mother that he will run away if he has to spend time with the father. The letter asked the father to engage in urgent family therapy and informed him that the mother would be suspending the time under the orders pending preparation of an updated report by Dr U.  The mother’s evidence was that on 12 April 2013 both boys ran away from school and walked to the Suburb L Police Station. That was an occasion when the father was to collect them from school to commence spending time with them pursuant to the orders.  Notwithstanding this experience, both children spent time in the April school holidays with their father but we had the situation of B going to the Suburb K Police Station on 23 April 2013 which was during that period.

21. On that occasion, as the mother indicated in her affidavit, she was rung up and asked by the police to collect him, which she did.  So, as at that time, both boys had gone to their father for the school holidays, notwithstanding the earlier difficulty.  B had done a repeat performance moving from his father’s place to the Suburb K Police Station.  C remained at his father’s home for the balance of the school holiday time.  Then where the mother unilaterally suspended the children’s subsequent time with their father.  She was hoping to be able to engage the father in family therapy and get some advice from Dr U. 

22. There was correspondence between the parents and the father made it clear by email messages to the mother that he wanted the children to be returned.  

23. My view about this particular breach is that I accept the situation so far as B is concerned, namely that the mother has established a reasonable excuse. But I do not accept the mother’s actions in then unilaterally stopping the time on 3 May 2013 because C had participated and continued to participate in the earlier school holiday time.  The mother has indicated that C has a good relationship with his father.  So in my view, the mother’s action in withholding C was not justified in all the circumstances and I find a breach in respect of 3 May 2013. 

24. That takes us to 1 June 2012.  The mother says that she had a reasonable excuse because prior to 1 June 2012 she became aware that there were proceedings against the father for a breach of a then existing apprehended violence order.  On 2 May the father had been charged with a breach.  The father concedes that he was so charged. The circumstances of this were not entirely clear to me but there was a complaint to the police and some information given to them to the effect that B had been locked in his room for three days by his father. 

25. It became clear during the course of the evidence that when this matter went to completion in the court the charges against the father were dismissed.  But in my view what this Court must focus its attention on is the circumstances as at 1 June 2012.

26. When the father was charged on 2 May 2012 there were bail conditions imposed on him amongst which were conditions which required him not to have contact with the two boys.  On 17 May those conditions were lifted and no longer required.  There was then some correspondence and communication between the solicitors.  The father also had solicitors at that time.  And endeavours were made to negotiate some time between the father and the boys. 

27. As part of those negotiations the mother said that she would be prepared to accept some supervised contact between the boys and their father.  But it seems that there were constraints in the relevant contact centre or difficulties about availability of whoever it was who was going to be asked to provide that supervisory responsibility. In any event, a long way further down the track it seems that the mother reneged on that arrangement. 

28. However, in my view what is relevant is those matters which transpired up to 1 June 2012.  We had a situation where the father was facing a serious charge.  The fact that it was ultimately dropped did not alter things as at 1 June 2012.  The mother said she was concerned about that matter.  She says she took the view that she was acting in the best interests of the children.  She says she had some concerns about the father’s state of mental health but there was nothing in any proper form before the Court to support that matter. 

29. At the end of the day the question is, did the mother act reasonably at that time in circumstances which then prevailed and those circumstances were that the father was facing serious charges.  In my view, this Court would accept that as a reasonable excuse.  Accordingly, I propose to dismiss the father’s alleged breach on 1 June 2012. 

30. I conclude that the Court is satisfied that, without reasonable excuse, the mother contravened order 8 of the orders of the Federal Magistrates Court of 20 December 2011 on 3 May 2013.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 20 May 2014.

Associate:     

Date:              15 April 2015