Doge and Hornby
[2011] FMCAfam 636
•30 June 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DOGE & HORNBY | [2011] FMCAfam 636 |
| FAMILY LAW – Multiple applications – consideration of Rice & Asplund – contravention (principles of) – application for costs – application for security for costs (principles of). |
| Family Law Act 1975, ss.60CA, 65N, 69ZW9(5), 70NAC, 70NAD(b), 70NAE, 70NAF, 70NBA, 70NCA, 70NCB, 117 Federal Magistrates Act 1999, s.17A |
| Amalgamated Commercial Holdings Pty Ltd v Compas Pty Ltd & Anor [2011] FMCA 116 Child Support Registrar v Kavanos (2011) 44 Fam LR 422 D & C (2005) FLC ¶93-236 Dobbs & Brayson (2007) FLC ¶93-346 Elspeth & Peter (2007) FLC ¶93-341 Evans v Rochford (2003) 30 Fam LR 336 In the Marriage of Jones, (2001) FLC ¶93-080 In the Marriage of Luadaka (1998) 24 Fam LR 340 Miller v Harrington (2008) 220 FLR 300; 39 Fam LR 654 O’Brien & O’Brien (1993) FLC ¶92-393 Penfold v Penfold (1980) 144 CLR 311 Rice & Asplund (1979) FLC ¶90-725 Sandler & Kerrington (2007) FLC ¶93-323 SPS & PLS (2008) FLC ¶93-363 |
| Applicant: | MS DOGE |
| Respondent: | MR HORNBY |
| File Number: | CAC 867 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 25 February 2011 |
| Date of Last Submission: | 25 February 2011 |
| Delivered at: | Brisbane |
| Delivered on: | 30 June 2011 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Mr K Hubert |
| Solicitors for the Applicant: | Capon & Hubert |
| Solicitor/Advocate for the Respondent: | Mr R Friesen |
| Solicitors for the Respondent: | Watts McCray McGuinness Eley |
ORDERS
The Father’s Application to discharge the 2006 Consent Orders be dismissed.
There be no Order for security for costs.
By way of penalty for the Contravention Application filed on 1 October 2010 the Mother is to pay the Father the sum of $328.00 within 30 days of the date of these Orders.
Both parties attend a post separation parenting course with a focus on communication. Evidence of attendance at such a course is to be provided to the Court.
Each party be restrained from filing any further Application other than enforcement of existing orders without the prior leave of the Court. Any party breaching this Order may be liable to pay the costs of the other party on an indemnity basis.
IT IS NOTED that publication of this judgment under the pseudonym Doge & Hornby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 867 of 2010
| MS DOGE |
Applicant
And
| MR HORNBY |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties in these proceedings were once in a de facto relationship which, as it turned out, was quite a short one. It ended in October 2002. There is one child from it, [X], who was born [in] 2002.
The first application between these parties was filed in May 2004. [X]’s parents have been fighting regularly ever since, with the occasional lull in hostilities.[1]
[1] In cross-examination, Mr Hornby confirmed that the parties have been fighting since [X] was eight months old. Transcript (25th February 2011) p.7. Ms Doge’s solicitor helpfully provided something of an ‘aide-memoire’, which summarised – in tabular form over 4 pages – 18 separate allegations made by Mr Hornby against Ms Doge, which range from stalking, to not providing [X] with sufficient food, and [X] scavenging for money.
Final orders were made on 21st April 2006. They provide for [X] to live with his Mother and to spend defined, regular time with his Father during school terms and during school holidays, as well as for regular ‘telephone time.’
Order 16 of those orders relevantly and importantly provides that “neither the father nor the mother shall be permitted to institute further proceedings in relation to the child in the Federal Magistrates Court without the leave of the Court.”[2]
[2] Further “time with” orders were made by consent on 23rd July 2010 (“the July 2010 orders”). In terms, those orders (a) did not discharge the earlier orders, and (b) specifically did not mention order 16 of the April 2006 orders.
In the light of the history of the contests, and what has been filed more recently (details of which follow), it can reasonably safely be observed at this early juncture that the capacity of the parties to engage in venomous contests, and tawdry, vindictive and often petty (but sometimes decidedly lurid) accusations which, more often than not, are passed off as “communication”, significantly exceeds their focus on and attention to what is in [X]’s best interests. For example, there have been accusations about [X] not being properly fed, of him sleeping in a walk-in ward-robe in his Mother’s bed-room (presumably à la Harry Potter’s ‘cupboard under the stairs’ at the Dursleys; to the Family Consultant, [X] described it as a “shoe-cupboard” of approximately 1 metre x 1.5 metres), and that he is forced to dress in girl’s clothing. Doubtless in a community-spirited manner, Mr Hornby helpfully shared a number of his grievances over talk-back radio with the Chief Minister of the ACT, the transcript of which was, also helpfully, attached to Ms Doge’s affidavit filed on 21st June 2010.
Sadly, if not unfortunately and somewhat absurdly, parents, such as these, often seem to regard protracted litigation with their former spouse or ‘partner’ in relation to their child as a higher priority than appreciating the damage that it causes to him (or her). Certainly, one can only wonder what goal they think their bellicose conduct serves, other than to frustrate and to antagonise their former spouse/partner. Lamentably, such conduct can only be a negative “model” for their child. The cycle of frustration, antagonism, and retaliation (or retribution) continues.
All of that said, I assume that the parties are extremely nice, capable adults. Each of them gave their evidence in relation to the contravention application (on which more later) clearly, relatively succinctly and with deliberate execution. However, their parental relationship concerning [X], and all its incidents, is palpably caustic.
The latest round of litigation can be conveniently traced to an application for a recovery order filed by Ms Doge on 4th June 2010. This followed Mr Hornby taking [X] from school and keeping him for an extended period of time while he ([X]) recovered from a bout of chicken pox. During that time, [X] spent no time with his Mother.
There are four applications before the Court:
i.The Father’s Response, filed on 21st June 2010 (which sought, among other things, to discharge all previous orders, for [X] to live with Mr Hornby – who would also have sole parental responsibility – and for [X] to spend time with his Mother as determined by the Court);
ii.The Mother’s Application in a Case, filed 24th September 2010 (which sought orders for [past] costs (on an indemnity basis) and orders by way of security for costs – in the sum of $30,000);
iii.The Father’s Contravention Application, filed 1st October 2010 (which related to [X] not being provided to his Father for Father’s Day 2010);
iv.The Mother’s Amended Application, filed 10th December 2010 (which, in addition to the two ‘costs orders’ already noted, sought the summary dismissal of the Father’s 21st June Response, that each party be restrained from filing any further application [other than in relation to enforcement] without the prior leave of the Court, and that any breach of this order shall result in a costs order on an indemnity basis).
Since the matter was heard, yet another application for a recovery order has been filed by Ms Doge in relation to a further ‘retention’ by
Mr Hornby of [X], contrary to orders. In ‘response’, as recorded by Ms Doge, Mr Hornby (helpfully via text message) confirmed that [X] was continuing to have behavioural problems at school (one might ask rhetorically why that would be given the behavioural problems of his parents) and that, accordingly, (a) blame should be laid at the feet of [X]’s Mother, (b) [X] would be staying with his Father and under the ‘calming influence’ of his baby brother, [Y] (born 2009), and (c) that [X]’s time with his Mother would be suspended. One might be tempted to apply here the old legal epithet – res ipsa loquitur. Fortunately, this application has since been discontinued.
Orders were made on 21st June for the appointment of an independent children’s lawyer (“ICL”), and for the parties to see a family consultant, which occurred on 24th June. A Family Report was released on 8th July 2010.
On the basis of the principles articulated by Warnick J in SPS & PLS,[3] notably that at least by necessary implication, the Family Report should be taken to be admitted into evidence.
[3] SPS & PLS (2008) FLC ¶93-363 especially at [1] – [22]. His Honour was sitting as the Full Court. Moreover, the Solicitor for Ms Doge referred specifically to the decision of SPS & PLS in his submissions.
The Court also has before it a report from the ACT Office for Children, Youth and Family Support, pursuant to s.69ZW of the Family Law Act 1975 (“the Act”). On the same principles to which I have just referred in SPS & PLS, that Report should also be taken to be admitted into evidence.[4]
[4] In this regard, see in particular s.69ZW9(5).
The first three applications were listed for hearing on 9th November 2010. However, the day before, Mr Hornby was admitted to hospital for surgery, which necessarily led to the hearing being vacated. It was re-scheduled for 25th February 2011.
Before dealing with the applications chronologically, it is important to place them all in the context of what is in the s.69ZW Report, the Family Report, and in the light of submissions from the ICL.
The s.69ZW Report, the Family Report & ICL Submissions
The s.69ZW Report: It is sufficient to note the following from this report.
In the section styled “Risk Analysis” and dated 10th May 2010, the Report states: “Previous reports of physical abuse have all been unsubstantiated; it would appear that CPS [Care & Protection Services] initially became involved because of an acrimonious separation by the parents.” I have added the emphasis.
In the same place, the Report goes on the state that “[X] may have been coached into what to say to CPS.” In the light of this comment and what is noted later from the Family Consultant, I interpolate here the noticeable but lamentable fact that [X] appears to report or to communicate different things to different ‘third parties.’ Thus, his comments to the Family Consultant, which are strongly in favour of him living with his Father, are very much at odds with affidavits from other family members (admittedly on the Mother’s behalf) in relation to a very unfortunate incident where [X] refused to go with his Father for Father’s Day, 2010. Those affidavits attest to [X] remonstrating violently in his opposition to spending time with his Father on that occasion. Presumably it is a case of [X] making an assessment at any one time to say and or do things that will meet his currently perceived need or desire, and or which will lead to the least disruptive course for him.
Finally, the Report’s “Outcome & Recommendation” stated: “[X] has frequent exposure to mandated reporters. There does not appear to be a current role for ongoing Care and Protection involvement, therefore I would recommend no further action at this time.”
The Family Report: It is important to note, at a little length, the following from this Report. The first matters recorded deal with the competing contentions of the parties; the second section deals with the Family Consultant’s discussion with [X]; and the third part deals with the assessment and recommendations of the Family Consultant.
The Family Consultant notes at p.1 of her report that:[5]
[X] lived with his mother from the time of separation and spent time with his father. There is some inconsistency between the parents’ account of the times that [X] spent with his father. Initially, [X] spent several days each week, this increased to overnight on a Friday. The father contends that the overnight commenced sometime before [X]’s 3rd birthday; Ms Doge claims it commenced when [X] was 4.5 years of age. The father considers that the 1 overnight each fortnight increased to 2 overnights each fortnight, when [X] was approximately 4 years of age. From about the time that [X] was 5 years of age he was spending alternate weekends with his father from after school on Friday until Monday morning and overnight on alternate Tuesdays.
[5] Family Consultant Report of Ms W, released 8th July 2010, at p.1.
The Family Consultant further notes that:[6]
Unfortunately [X]’s parents have had an acrimonious relationship for most, if not all, of [X]’s life. Each of the parents described a hostile and mistrustful relationship between them. Each parent accuses the other of violence, abuse and stalking. Clearly the bitterness and potential volatility between the parents must be unbearably frightening and destabilising for [X]. The short term and long term effects of this type of parental relationship on young children is considerable and debilitating, in all areas of their life – social, emotional and intellectual.
Most recently the parents’ intense animosity towards each other has been ignited by the father retaining [X]. Both parents allege abuse by the other regarding this. The father alleges “17 abusive phone messages” from the mother. The father claims that the mother engaged the police to have [X] returned and two uniformed police interviewed [X] at the father’s home causing [X] to be “fearful” regarding reprisals of the mother. The mother is mistrustful of the father’s motives and considers him to be “brainwashing” [X]. She considers that for every day he is away from her “more damage is being done” to [X] by his father.
During the interviews for this conference the tension between the parents was palpable. The mother stated that the father did not allow [X] to greet her or even have eye contact with her throughout the morning. In the waiting room the father sat with his arm around [X] as if shielding him from his mother. The mother described the father as “very dangerous”, “He has a gun license and has guns at home”. She said that during the time she had been in the building for the assessment for this report the father had been “following her around”…
Both parents are derogatory regarding the other parents relationship with [X] and their ability to parent [X]. Ms Doge describes her relationship with her son as “very close’. When she was asked if [X]’s relationship with his father was also “close’ she replied “I have no idea”.
[6] Family Consultant Report of Ms W, released 8th July 2010, at pp.2 and 4
In relation to her discussion with the child, the Family Consultant notes:[7]
[X] said that he had come to speak to the Family Consultant “Because we had to”. He said that he liked the current arrangement of living with his father “10 out of 10” and spoke fondly of his 11 year old “step-sister”, [Z] and his “brother”, [Y]. He said the arrangement whereby he lives with his father had occurred after he had contracted chicken pox while staying over on a usual alternate weekend. “I’m staying at Dad’s because otherwise she (his mother) would pick me up from school and keep me until it is sorted out. Dad has to get a letter to keep me”. [X] said that his mother had not seen him “for a while” and that he would be in “big trouble” for things that he had said to his mother on the telephone since he has been with his father – “that I don’t want to go back ( to his mother’s care) and I don’t want to go there anymore…. I like staying at Dad’s. My Mum has been having me more than Dad”. He said that if he remained in his father’s care he would not want to spend time with his mother “Not really anytime with Mum. I’ll be in big trouble. She’ll smack me”. The Family Consultant asked [X] if it would be difficult to change from living with his mother, where he has been “since a baby”, to live with his father. He said confidently “It will be better”…
[X] was asked if there were “other reasons’ why he wanted to remain living with his father. “She’s been hitting me for no reason. Threatening me with the wooden spoon – holding it and chasing me”. He said that he had been “hit” on “my bottom and my legs and my arms. She gives me red marks and they are really sore”. He said this occurred “1 or 2 times each week”…
[X] refused to see his mother with the Family Consultant in attendance during the interviews for this report. He asked the Consultant when our discussion was ending “Is my Mum still here”? The Consultant asked [X] if he was “worried’ about that and he answered without any visual anxiety “No”.
Using the Bear Cards [X] described how he felt at each of his parent’s homes. At his mother’s home he said that he would be “Sad – have a tummy ache” and “Stressed because he’s scared”. [X] was asked how “scared’ he would feel on a continuum of between 1 and 10 with 10 being “so scared that you can’t move”. He indicated that he would be a 7. [X] said that at his father’s house he would be “really happy – yippee and thinking about what I’m going to do next (indicating what he might play with or what activity he may participate in).
[X] was asked to make 3 wishes about his family, he said that he could only think of two – “Spend more time with my Dad and they (his parents) sort the Court papers out”.
[X] is in an invidious position, being the only child of a highly conflictual and hostile parental relationship. This is uncomfortable, confusing and irreconcilable for [X]. Children exposed to this type of environment have emotional, social and academic issues. [X] already exhibits social and academic difficulties which the father attributes to the environment with his mother and her care of [X].
[X]’s primary attachment is most likely to be to his mother. She has been the constant adult carer for [X]. Therefore, [X] is best placed to live with her as long as he is safe and appropriately cared for. There are allegations regarding both parents which suggest concerns for [X].
[7] Family Consultant Report of Ms W, released 8th July 2010, at pp.4-6
The Family Consultant continues:[8]
The circumstances around [X] living with his father are also concerning. At this time [X] has been absent from school for most of term 2 and considering he is behind his peers academically this is likely to further disadvantage [X] in his learning and his relationship with his peers. It is concerning that [X] has had no time with his mother and been involved in planning a longterm arrangement for his living situation. It is disturbing that [X] expresses a preference to spend no time with his mother and a worry that he will suffer some sort of reprisal from his mother.
Since the parents’ separation [X] has continued to move between both parents’ homes despite his parents’ extremely negative views of each other as people and as parents. The father maintains that his son has been and continues to be abused by the mother. The mother maintains that the father is unable to care for [X].
[X] expresses a preference to remain with his father, considering his age, his parents’ relationship, the circumstances around him remaining with his father and the lack of contact with his mother, [X]’s views should be considered in light of these influences and disruptions. Children of [X]’s age do not usually have the maturity to consider what is in their interests either presently or in the future.
The father’s household may provide [X] with a number of attractive options from his home life with his mother, such as siblings of school age and family activities. If the parents’ relationship was more amicable then [X] would be able to enjoy the different homes and lifestyles of both his parents. However, their relationship precludes [X] from flexibility and easy movement and transition between his parents.
[8] Family Consultant Report of Ms W, released 8th July 2010, at pp.6-7.
The Family Consultant makes the following recommendations:[9]
[9] Family Consultant Report of Ms W, released 8th July 2010, at p.7.
1. That the court gains information regarding [X]’s welfare from his current and previous school and Department of Youth and Community Services.
2. That unless there are seen to be reasons for concern for [X] with his mother that [X] live with the mother.
3. That [X] spend time with the father at specific times ordered by the Court
4. That [X] return to school at the commencement of Term 3.
5. That the parents consider their relationship with each other in light of [X]’s wellbeing with a third party such as the ARCK program, Relationships Australia or a private counsellor/psychologist.
Submissions by the ICL: The submissions here can be quite brief.
First, the experienced ICL, Ms Lloyd, noted (in accordance with the Family Consultant) that [X] was regularly placed in the worst of all worlds, namely between his warring parents, and that he was placed in this ‘no-man’s land’ by his parents.
Secondly, she confirmed that [X] had effectively “shut down” by which she indicated that he was now refusing to engage in any discussion with anyone. In my view, this may properly be seen as a reaction by [X] to the constant and myriad number of interviews with different “officials”, which he has endured over the years. Such unremitting subjection to investigation would constitute “systems abuse”.
Thirdly, the ICL confirmed that, to a degree, [X] regarded school as something like respite care where he could be somewhat free of the on-going conflict between his parents.
I move to the applications.
Application to discharge Final Orders
There are at least two obstacles standing in the way of Mr Hornby’s application to discharge the 2006 consent orders, and to substitute orders that provide for [X] to [now] live with him and spend time with his Mother.
The first obstacle is that those orders provide for leave of the Court to be obtained prior to any application being filed. Unless and until the 2006 orders are varied or discharged, both parties are bound by them, including the requirement of Court approval before any other application is filed. This has not occurred.
If it be the case that the Response is actually an application for leave to issue process, it fails to seek such an order.
The second obstacle is the application of the principle derived from the Full Court decision in Rice & Asplund.[10] Briefly stated, that case (and the others to which I have referred) noted the importance of ensuring that children are not embroiled in on-going litigation. Once resolved on a final basis, there needs to be a material change in circumstances before a court should consider, as it were, permitting the door to further litigation to be re-opened. And in all respects, in exercising its discretion, it is essential that the Court have regard to what is, and what is not, in the best interests of the child who is the subject of the proceedings.[11]
[10] Rice & Asplund (1979) FLC ¶90-725. Among many recent discussions of the principle and application of Rice & Asplund, see, for example, the Full Court decision in Miller v Harrington (2008) 220 FLR 300; 39 Fam LR 654, as well as Warnick J in SPS & PLS to which I have already referred.
[11] See, for example, the discussion in Miller v Harrington at [73] – [83].
In my view, Mr Hornby’s application to discharge the 2006 consent orders must be dismissed. There has been no compliance with those orders in relation to obtaining the Court’s imprimatur prior to filing an application. It matters not that it is in the form of a response to the Mother’s recovery application.
As well, applying the principle(s) from Rice & Asplund, there has been no material change in circumstances that would warrant the litigation to be permitted to continue. At the time of the 2006 orders, [X]’s parents were still contesting matters. They have done so, with varying degrees of intensity (and frequency), since that time. The parental struggle for domination continues to the present day. As well, as the experienced Family Consultant recommended, [X] should continue to live with his Mother, just as the 2006 orders required. It cannot be in [X]’s best interests for the litigation to continue. No one can predict whether, if at all, his parents will recognise this fact and the ever-mounting toll it is exacting on their son.
Because of the comments of the Full Court in Miller v Harrington, at [72], and because of the reasons I have already articulated, it is unnecessary to consider whether s.17A of the Federal Magistrates Act 1999 should apply and Mr Hornby’s application be dismissed summarily pursuant to that section. That said, if one needed further grounds to dismiss his application, that section and the jurisprudence surrounding it would, in my view, lead to the same result.[12]
[12] For a discussion of principle and the case-law in relation to summary dismissal under s.17A of the Federal Magistrates Act, see Amalgamated Commercial Holdings Pty Ltd v Compas Pty Ltd & Anor [2011] FMCA 116, especially at [87] – [94].
Application for Costs (& Security for)
Although the context is rather different, a helpful recent discussion of principles to be applied in ‘costs applications’ is found in Boland J’s decision in Child Support Registrar v Kavanos.[13] In that case, her Honour was sitting as the Full Court.
[13] Child Support Registrar v Kavanos (2011) 44 Fam LR 422.
After setting out in full s.117 (and s.117AB, which section deals with cases where there has been a false allegation or statement “knowingly made”), Boland J set out, at [65], in detail the principles in relation to an award of costs from the High Court decision in Penfold v Penfold.[14] It is as well to recall those principles from that High Court judgment. Thus, the Court (Stephen, Mason, Aickin & Wilson JJ), said (internal references omitted):[15]
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in "a clear case".
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent (1970) 92 WN (NSW) 503, at p 505 ). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
[14] Penfold v Penfold (1980) 144 CLR 311.
[15] Penfold 144 CLR at pp.315-316.
Further, in Penfold Murphy J said:[16]
The general rule expressed in s. 117 (1) is that each party shall bear his or her own costs; this is subject to the exception expressed in sub-s. (2). The phrases, "in a particular case" and "circumstances that justify it in doing so" emphasise that s. 117 (1) expresses the general rule, which is not to be departed from unless the court forms the opinion in a particular case "that there are circumstances that justify it in doing so".
The facts referred to in the judgment of Stephen, Mason, Aickin and Wilson JJ show that this is an exceptional case in that the circumstances justify an order for costs.
Courts should regard such circumstances which tend to undermine the integrity of proceedings with great concern, and should do everything in their power to determine who is responsible in order to maintain that integrity. On this appeal, this Court is, of course, confined to dealing with the evidence which came from the courts below.
[16] Penfold 144 CLR at pp.317-318.
I am not aware of any formal allegation that either party, and
Mr Hornby in particular, has “knowingly” made a false or misleading statement to the Court. I do not take mutual allegations – even a significant history of them – as formally coming with the definition of ‘knowingly false.’ This is not to say that, at some stage either a particular statement, or the cumulative effect of a number of statements, would not or could not come within what is comprehended by the Act and its use of “knowingly.” In this regard I note the extended discussion by Boland J in Kavanos.[17]
[17] Kavanos, 44 Fam LR 422 at [68] – [71].
As well, (a) given the history of the matter, and (b) having regard to the precise terms of s.117(2) and s.117(2A), in my view, protracted, shard-throwingly rancorous litigation to which both parties have contributed, of itself, does not warrant an order for costs.
However, given that s.117(2) also empowers a court to make orders in relation to security for costs, in my view the Court should consider whether such an order is appropriate. There is only one application in this regard before the Court, which is by Ms Doge who seeks an order for $30,000 against Mr Hornby.
The principles to be considered for an order for security for costs are set out in a number of decisions, notably In the Marriage of Jones, In the Marriage of Luadaka, and Evans v Rochford, all of which are Full Court authorities.[18] Summarily stated, which is also to say that the following matters are not exhaustive considerations, a court should have regard to the history of the litigation, the merits of the respective claims, the financial circumstances of the parties, any delay in bringing the application, and the likelihood or risk of higher than usual costs being incurred because of the nature of the litigation.
[18] In the Marriage of Jones, (2001) FLC ¶93-080 (Ellis, Mullane & Kay JJ); In the Marriage of Luadaka (1998) 24 Fam LR 340 (Ellis, Finn & O’Ryan JJ), and Evans v Rochford (2003) 30 Fam LR 336 (Finn, Holden & Barlow JJ).
To these factors I would only add that, in litigation in family law proceedings in this Court, experience would suggest that one should be particularly cautious in making costs orders (including security for costs orders), among other things, because of the risk of inflaming further or risking even greater instability for the child involved who might become even more damaged in the ensuing conflagration. Indeed, in my view it would be rather curious if the Court did not have regard to the best interests of the child in the current proceedings, even in relation to the making of any costs order.
By way of warning to both parties, were I minded to make any order for security for costs in the future, and subject to the usual qualifications about procedural fairness, appropriate facts and proper application, it may be more likely that both parties would be facing a mutual security for costs order.
In the current circumstances, and notwithstanding the history of the litigation, because of the greater fear of risk to [X], I am not disposed to make such an order at this time.
Contravention
Earlier in these reasons I noted briefly the fact and the circumstances whereby [X] refused, it would seem in a highly fractious manner, to spend time with his Father. Mr Hornby filed a contravention on
1st October 2010 in relation to [X] not being made available to spend time with him for Father’s Day in accordance with orders of this Court made by consent on 23rd July 2010.
In response, Ms Doge contended that [X] was made available for Father’s Day but [X] confirmed that he did not wish to go with his Father.
Both parties were briefly cross-examined on their affidavit material, which is also to say that the supporting witnesses for Ms Doge – her Mother (Ms D) and her older son ([X]’s brother: Mr D) – were not required for cross-examination.
For the Father’s part, his account of events and basic argument (as set out primarily in his affidavit filed on 1st October 2010, and supplemented by his affidavit filed on 14th February 2011) was that: (a) his solicitor wrote to Ms Doge’s solicitor on 3rd September seeking to confirm that [X] would be available for collection for the Father’s Day “time” (Father’s Day was on 5th September); (b) his solicitor later telephoned Ms Doge’s solicitor to seek the confirmation and was advised that he (Ms Doge’s solicitor) had no instructions; (c) he attended the usual place for changeovers (when not a school day), being the Maternal Grandmother’s residence in [omitted] on the designated date and time, and that [X] presented at the door “all dressed up” and stated that “I have a 21st birthday to go to tonight [and] I cannot come with you”; (d) a short time later Ms Doge came to the door, and in the process of closing it said “The court orders said that if [X] did not want to go he did not have to.” Mr Hornby thereupon (he deposed) said to Ms Doge: “That is not correct, this will now again have to be dealt with in court.”
Mr Hornby deposed also that he understood that [X] went skiing on the Father’s Day weekend.
For her part, Ms Doge maintained that [X] was ‘made available’ on the Father’s Day weekend to spend time with Mr Hornby, but that [X] simply but very forcefully confirmed that did not wish to spend time with his Father.
Further, Ms Doge deposed (in her affidavit filed on 2nd November 2010) that she was contacted by her solicitor on Friday 3rd September about the Father’s Day order and [X] being made available to spend time with his Father. In many respects, not unreasonably, she advised her solicitor that it was not appropriate for communication between the parties to be conducted between solicitors because of the cost of doing so. She also advised her solicitor that she would get [X] to telephone his Father when he got home from school.
Ms Doge further deposed that, after much coaxing, [X] telephoned his Father around 5pm (presumably on that same day) and advised Mr Hornby that “I don’t want to come to you on Father’s Day. I will see you on Tuesday.” Then, at a little length, Ms Doge recounted her version of events and statements upon Mr Hornby arriving at the changeover on the Saturday (4th September). She said that she did not tell [X] that his Father would ‘probably be collecting him’ because [X] would not have got into the car to go to his Grandmother’s house, the designated changeover location. Upon arrival at his Grandmother’s house, Ms Doge told [X] that his Father would be coming to collect him and that he ([X]) would be required at least to answer the door.
Ms Doge confirmed that when Mr Hornby arrived, he accused [X] of being ‘coached’ to say that he would not be going with his Father. She also confirmed that, a little while after the contest between [X] and his Father (following which [X] became upset), [X]’s older brother ([first name omitted]) picked up [X] and carried him to the front door. This only resulted, she said, in [X] ‘spreading himself out like an octopus’ which prevented him from being carried through the door.
Ms Doge also deposed that, throughout the events recounted,
Mr Hornby continued to call out to [X] and to badger him to go with him.
Ms Doge further deposed: “I have always asked [Mr Hornby] to advise me in writing to my home address with at least 7 days notice.” I am unsure to what this statement specifically relates. On its face, the order in relation to [X] spending time with each parent on both Mother’s and Father’s Days requires no such notice. The details of those orders in relation to times, and changeover, are clearly stated.
I infer from the remainder of Ms Doge’s affidavit, which notes her willingness to correspond with Mr Hornby directly rather than through solicitors (which process she confirmed was unnecessarily costly), that she regarded the confirmation sought by Mr Hornby’s solicitor as to [X]’s availability for Father’s Day as needless, costly, and provocative.
Cross-Examination of the Parties: Not surprisingly, the cross-examination of both parties focussed primarily on the events of the Father’s Day week-end in question.
Mr Hornby: Mr Hornby presented as quiet but quite frustrated at the lengths to which he feels he has to go to ensure compliance with Court orders to ensure that he spends time with [X].
He confirmed that [X] had told him that he ([X]) had been asked to go skiing on the Father’s Day weekend, and that he had also been asked to go to a 21st birthday party.
Mr Hornby also made the point, at a little length, that [X] lives with his Mother, which means that his time with [X] is rather more circumscribed and even more precious. However, he feels that
Ms Doge does not comply with orders. He also said that it was his understanding that Ms Doge went skiing every second weekend, which was, necessarily, a significant inducement for [X] not to spend time with his Father if it came down to a choice between skiing or spending time with Mr Hornby.
Ms Doge: Ms Doge is a clearly determined woman. Understandably, she too presented as frustrated at the non-compliance with orders by Mr Hornby and the [prohibitive] cost of lawyers in dealing with the transgression of orders.
Ms Doge confirmed that [X] attended a 21st birthday party, and then went skiing on the Father’s Day 2010 weekend. She also confirmed that the arrangements for the party were only confirmed on the Friday beforehand (i.e. the day before [X] was due to be picked up by his Father), but that the skiing arrangements with friends had been arranged “for weeks and weeks and weeks.”[19]
[19] Transcript (25th February 2011) p.12.
She said that if something similar had happened on the Mother’s Day weekend, she would simply have “just got on” and not made any complaint about breach of orders. In a somewhat similar vein,
Ms Doge said that it was all ultimately [X]’s choice whether to spend time with his Father. All she had to do, in her view, was to make [X] available to be picked up by his Father. This was sufficient, she submitted, to comply with the orders.
Ms Doge also said that she only received “notice” of Mr Hornby wanting to have [X] on the Father’s Day weekend [in accordance with the orders] very late in the day. In her words: “… having that amount of short notice – really, there were other things already arranged.”[20]
[20] Transcript (25th February 2011) p.13.
When questioned about “communication” and whether she should have responded to Mr Hornby’s inquiry to confirm [X]’s availability for Father’s Day, Ms Doge simply said that the cost of using a lawyer to respond effectively amounted to the cost of a ski trip for her. Her choice was always for the latter.
Ms Doge also confirmed that it was her belief that Mr Hornby was required to provide her with notice if he wished to exercise his time with [X] on Father’s Day.[21] This was so notwithstanding that there was no such requirement in the July 2010 orders. And Ms Doge did not deny that the message left by [X] on his Father’s telephone simply stated: “Hi Dad: Just to let you know I’m not coming on Father’s Day. I want to go skiing. Everyone is going.”[22]
[21] Transcript (25th February 2011) p.15.
[22] Transcript (25th February 2011) p.17.
Accepting all the limitations, as well as the advantages, of cross-examination and a court’s capacity to assess the weight, accuracy and utility of the evidence of witnesses, and taking into account the litigious history between the parties where both protagonists have breached orders, on this occasion I confess to a certain level of astonishment at Ms Doge’s somewhat cavalier attitude to compliance with the July 2010 orders in relation to Father’s Day. She plainly knew that [X] had telephoned his Father and advised him that his preference, indeed his clear intention, was to go skiing. Simply to ‘make [X] available’ at the usual place of changeover may have been literal compliance with the orders. In my view, particularly in the light of the authorities noted below, there was no compliance with her parental responsibility, among other things, not to leave the decision about compliance with the Court orders in relation to Father’s Day to a 9 year old boy. To do so was an abrogation of her parental responsibility.
Submissions & Discussion
As previously indicated, the contravention alleged is the breach of order 5 of the Orders made by consent on 23rd July 2010 which relate to [X] spending defined time with his Father for Father’s Day between 5pm on Saturday
4th September until 8.30 am on Monday 6th September.For her part, Ms Doge contends that she complied with the orders and made [X] available but, in the event, he did not wish to go with his Father. In such circumstances, she submits that no breach of the July 2010 orders has been established and the contravention application should be dismissed.
As well, in his helpful written submissions provided at the hearing,
Ms Doge’s experienced solicitor also submitted that Mr Hornby’s affidavit provided a “gloss” on the conversation between [X] and his Father, so that [X] purportedly said that he had been asked to go skiing that weekend, as well as that he was going to a birthday party on the Saturday evening.
The solicitor also submitted that, in any event, Mr Hornby obtained “extra time” when Ms Doge acceded to [X] attending his Great Aunt’s funeral. I assume that this submission was intended to suggest that the time that [X] spent with his Father at the family funeral was some sort of compensatory time for him not spending time with Mr Hornby pursuant to the Father’s Day order, which provides, in practice, for [X] to spend two over-night times with his Father.
Respectfully, as important and significant as a family funeral is, I have some difficulty in seeing how such a sombre, sad occasion can be equated (other than in a most mordant fashion) with the extended period that would otherwise have ensued in relation to the Father’s Day order and the larger time that came with it. One would hope that family events, be they funerals, weddings and other similar occasions, would not be seen as some form of convenient, compensation (or simple ‘trade-off’) for time that [X] has not spent with either parent pursuant to the July 2010 orders.
The Legislative Regime: The legislative regime in relation to “contraventions” is complex – to say the least.[23] For the purposes of the current matter, the following sections from Part VII Division 13A of the Family Law Act 1975 (“the Act”) should be noted.
[23] Generally, see comments by differently constituted Full Courts on the prolix and otherwise less than readily comprehensible (and difficult to apply) Division 13A in Elspeth & Peter (2007) FLC ¶93-341 (Faulks DCJ, Kay & Penny JJ); Dobbs & Brayson (2007) FLC ¶93-346 (Finn, Warnick & Boland JJ).
First, s.70NAC defines “contravened” an order as follows:
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.
It will be immediately recognised for current purposes that a contravention can occur if either of two aspects of this definition occur: either (a) intentionally failing to comply with an order, or (b) making no reasonable attempt to comply with the order.[24]
[24] In this regard, I also note the provisions of s.70NAD(b) and its reference to the requirements of s.65N, which details the general obligations created by a parenting order that deals with whom a child spends time with.
On the evidence provided to the Court, in my view, the first ground upon which a contravention application may be made – intentional failure to comply with an order – is not made out. In every formal sense, Ms Doge took [X] to the changeover venue and advised him that his Father would be coming to collect him for the mandated Father’s Day time. In every prescribed and technical way, in my view there was compliance with the order said to have been breached. It remains to consider, however, whether the second ground – regarding “no reasonable attempt” – has or has not been made out in the light of the facts of the matter and relevant authority.
Section 70NAE provides the meaning of “reasonable excuse.” No such claim is made in the current proceedings.
Subject to s.70NAF(3), s.70NAF refers to the requisite standard of proof in contravention proceedings, namely the balance of probabilities.
Section 70NBA deals with the power of a Court to vary a parenting order.
Subdivision C of Division 13A (ss.70NCA & 70NCB – the latter section concerns “costs”) deals with situations where a contravention is alleged but not established. Subdivision D relates to circumstances where a contravention is established but there is a reasonable excuse, while Subdivision E concerns less serious contraventions and there is no reasonable excuse. Because of the facts of this matter and the way the application was conducted, it is unnecessary to consider the other subdivisions of Division 13A.
In the first instance, I should note that, according to authority, such as Sandler & Kerrington, in a court’s consideration of orders in contravention applications, it is still an essential component of the curial process to consider the best interests of the child prescribed in s.60CA of the Act.[25]
[25] Sandler & Kerrington (2007) FLC ¶93-323 (Warnick J). His Honour was sitting as the Full Court.
In considering what I may call the ‘second limb’ of the definition of ‘contravention’ noted earlier, being “no reasonable attempt to comply with the order”, it is important to recall the Full Court’s statement in D & C. There, the Court (Kay, Warnick & Boland JJ) said:[26]
In no way do we suggest that a parent obliged to deliver a child to a contact centre, even if constrained as to interaction with the child after reaching the centre, is not also obliged to so act as to encourage the child not just to attend the contact centre but when there, to leave on contact with the other parent. But a need to address whether that obligation was met does not exclude consideration of a parent’s understanding of obligations under an order for contact, a question that we consider the above evidence raised.
[26] D & C (2005) FLC ¶93-236 at p.79,927 [49].
In my view, this statement of principle clearly describes the obligation on both parents in this matter (as it does in relation to all parenting matters). Even on her own version of the facts of the current proceedings, in my view, Ms Doge clearly failed to encourage [X], either at all or sufficiently so, to spend time with his Father in accordance with the July 2010 orders in relation to Father’s Day. Although speculative and unnecessary for the determination of the current matter, I would have some hesitation in accepting that Ms Doge would not be similarly grieved if [X] did not spend Mother’s Day with her in circumstances that are similar to those on display in the current application.
It matters not that [X]’s older brother attempted to move him physically towards his Father. In fact, such force only serves to demonstrate the lack of appropriate orientation and preparation for [X] to spend time with his Father.
Indeed, on the assessment of the evidence given at the hearing, I am satisfied that Ms Doge did little to support let alone encourage [X] to spend time with his Father on Father’s Day as prescribed by the orders. While she has an understandable distaste to spend money on legal fees, and an equally understandable predilection to spend her funds on more pleasant pursuits such as skiing, where the latter collides or risks doing so with orders of the Court (which I so find), the orders of the Court must take precedence over the lure of the piste. That lure was not, in my view, in any way properly countered by or measured against [X] spending time with his Father on Father’s Day and Ms Doge taking all appropriate steps to prepare [X] for doing so. The mere delivery of him to the changeover location, in circumstances where Ms Doge knew that [X] had telephoned his Father and left a message informing that he did not propose spending time with him, was insufficient.
Moreover, the Court has before it evidence from the Family Consultant, which confirms the good relationship that [X] has with his Father, and with reference to [X] stating that he wished to reside with Mr Hornby.
The facts of the matter in my view satisfy, on the balance of probabilities, that Ms Doge did not make a “reasonable attempt” to comply with Order 5 of the July 2010 orders. While she complied strictly with them (in making [X] “available”), she did not comply with what the Full Court described in D & C as ‘encouragement.’ In my view, she did not do so in a way that would prevent the Court from finding that she did not make a “reasonable attempt” to do so. It was not [X]’s decision to make – and it was essentially left to him by Ms Doge – whether he would spend Father’s Day with
Mr Hornby. Only in July 2010, both parties agreed that this would occur.[27] Moreover, to keep in place the arrangements in relation to skiing only served to induce [X] further not to spend time with Mr Hornby. In all of the circumstances outlined, the Court finds the contravention to be established.[27] See further the discussion by Smithers J in O’Brien & O’Brien (1993) FLC ¶92-393 at p.80,043 to similar effect.
Given that the only argument advanced on behalf of Ms Doge was that the contravention was not established, and therefore there was no argument run in relation to ‘contravention established but reasonable excuse’, I proceed to the question of penalty.
In the circumstances outlined, not least being the historically divergent evidence regarding [X]’s wishes, in the light of (a) the history of the matter, (b) a finding that the contravention has been established, and (c) the powers of the Court, it seems to me that, subject to further comments below, an appropriate order is to require Ms Doge to pay Mr Hornby’s costs of the contravention. Those costs should be determined by reference to the cost of a two-day ski-lift ticket for one adult, and a similar period ticket for a child. On my information, a 2-day adult lift ticket costs $212; a 2 day lift ticket for a child costs $116. The combined cost, therefore, is $328. This sum is to be paid within 30 days of these orders.
In addition to the order for costs, whatever courses the parties have previously attended, each of them is to attend a post-separation parenting course, with special emphasis being given to matters of communication. Evidence of their attendance at such a course is to be provided to the Court.
This being the first proven contravention, the Court is also required to warn Ms Doge (but which, only slightly less formally, should be taken ‘on board’ by Mr Hornby) that any future contravention could result in the Court being required to make more punitive orders (such as a fine, as well as costs, not to mention varying the parenting orders) pursuant to other subdivisions of Division 13A of the Act. Otherwise, I do not propose to make any other order in relation to the contravention application.
This, however, does not yet deal with all matters.
Miscellaneous & Conclusion
Although the 2006 orders require the parties to seek leave of the Court before issuing any further applications, it seems to me that, in the light of the on-going contests between them, and especially in the light of the ICL’s submissions regarding the impact on [X] of his parents’ on-going feuding, that order should be varied as sought by Ms Doge in paragraph 4 of her Amended Application filed on 10th December 2010. In my view, that variation is in [X]’s best interests.
Given that Ms Doge has withdrawn or discontinued her further application, it is unnecessary to deal with the matters raised in it.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 30 June 2011
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