Duarte and Morse

[2016] FamCA 381

FAMILY COURT OF AUSTRALIA

DUARTE & MORSE [2016] FamCA 381

FAMILY LAW – PARENTING – Contravention – Contravention application made by the mother against the father alleging a breach with respect to parenting orders – Where the mother seeks an order that the father be restrained from expressing concern about the risk posed to the children by the mother – Where the purpose of contravention proceedings pursuant to Division 13A is examined – Where the mother’s application is for an ulterior purpose – Application dismissed.

Family Law Act 1975 (Cth) Division 13A, Part VII.

Hornsey & Hornsey (unreported, Full Court of the Family Court of Australia, 3 July 1992)
McClintock & Levier (2009) FLC 93-401

APPLICANT: Ms Duarte

RESPONDENT: Mr Morse

FILE NUMBER: SYC 737 of 2014

DATE DELIVERED: 28 April 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 28 April 2016

REPRESENTATION

APPLICANT IN PERSON Ms Duarte

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Slater & Gordon Lawyers

Ms Stevens, Counsel for the Intervener (Department of Family and Community Services) and Ms Shea solicitor advocate for Legal Aid NSW – Independent Children’s Lawyer were excused at the commencement of proceedings.

Orders

1. The mother’s Application filed 4 May 2015, being an application that the father be dealt with for contravening orders affecting a child, is dismissed.

1. The costs of and incidental to the proceedings today are reserved.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Duarte & Morse 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:  SYC737 of 2014

Ms Duarte

Applicant

And

Mr Morse

Respondent

REASONS FOR JUDGMENT

1. These are proceedings in the context of a parenting dispute between the parents for orders to be made because of an alleged contravention by the father of parenting orders.

2. The Application was filed on 4 May 2015.  Some time ago the Application was referred to the registry for allocation of a hearing date with an estimated hearing time of the order of a day.

3. Ultimately, the matter was listed before me today.  The parents both attended in person, as did a legal representative for the father, an advocate on behalf of the Independent Children's Lawyer (“ICL”), and a legal representative for the Department of Family and Community Services (“the Department”).

4. Those last two representatives asked for, and without objection, were granted leave to withdraw.  It is the normal course in contravention proceedings that an ICL would not be involved until the possibility arose of consequential orders affecting a child.  That can only happen after a finding has been made one way or another in respect of the alleged contravention. 

5. The Application relates, in general terms, to an asserted breach by the father in relation to a requirement that the mother’s time with the children be supervised.

6. The allegation related to 2 May 2015 and based on  the statement of facts relied on by the mother, it is her complaint that on that date, notwithstanding an order requiring the supervision of the mother’s time, at one point the father left two of three subject children unsupervised in the care of the mother.

7. I was told by the parties that, subsequent to the making of the order in question and subsequent to the filing of the mother’s contravention application, the requirement for supervision has been conditionally removed.  I was told that since 11 April 2016, the orders now provide that on the basis that the mother gives an undertaking as to certain matters, her time with the children is to be unsupervised.

8. I then asked the parties, if there is no longer a requirement for supervision, what is the utility of the mother’s application because the purpose of contravention proceedings is substantially to compel compliance with court orders. 

9. There was some discussion about that, and ultimately I put to the mother that she should address me as to why I should not strike out the proceedings or dismiss the Application on the basis that to continue to press the application would be an abuse of process.

10. The mother appeared to give thoughtful consideration to that question.  She asked for a bit of time to think about this issue, it only having just been raised with her today.  She took some time and she has made submissions and they have been responded to.

11. Earlier in the day, the mother told me that the orders she proposed in the event that her Application was successful, were orders on an interim basis that effectively reversed the current parenting arrangements, giving her, not the father, sole parental responsibility, having the children live with her, not the father, and having the children spending day-only time with him and not with her.

12. During the course of the day she has reconsidered that issue and she has handed up a document that identifies the order she wants as: that, pending further order, the father be “prohibitorily injuncted” from expressing a view that the children are at significant risk of harm in the unsupervised presence of the mother or stepfather, that the proceedings be adjourned under s 70NEB of the Family Law Act 1975 (Cth) (“the Act”) to allow the parties to develop a more comprehensive application for discharge, varying, suspending or reviving the current orders.”

13. Contravention proceedings are substantially for the purpose of enforcement.  The Family Law Amendment Bill (Shared Parental Responsibility) Bill 2005 proposed amendments, including amendments to Division 13A of Part VII, which is the division  dealing with enforcement.

14. The explanatory memorandum for that amending bill said:

    Schedule 2 contains a range of amendments to strengthen the existing enforcement regime in the Act. Breaches of court orders are a major source of conflict and distress to all parties involved. The amendments provide courts with a greater range of options to better enforce parenting orders. This is necessary to ensure that one of the main objects of Part VII of the Act is fulfilled and that children are able to have a meaningful relationship with both parents. In addition, the amendments repeal the existing Division 13A of Part VII of the Act and replace that Division with clearer and more accessible provisions that will make the whole Division easier to understand.

15. I do not know, with respect, whether the legislator achieved that, but that was the intention. In the introduction to schedule 2, there is reference to the new Division 13A containing a range of amendments to strengthen the existing enforcement regime of the Act.

16. There is a decision of Hornsey & Hornsey (unreported, Full Court of the Family Court of Australia, 3 July 1992, interestingly where the current Chief Justice appeared on behalf of the appellant.  In that case the court held inter alia, “Nevertheless, proceedings under Part XIIIA are normally brought to enforce the order rather than punish for its contravention”.

17. In McClintock & Levier (2009) FLC 93-401:

    233. The focus of a court therefore in dealing with a contravention application under Division 13A must be in making orders which will enforce future compliance with its orders. 

    234. For a court to decide to punish a party who has been found to have contravened an order for the purposes of making other like-minded persons comply with orders relevant to them, in other words, to make an example of them, would be an error of law.  (original emphasis)

18. In other words, it was an error of law to deal with a contravention for a purpose other than to compel compliance with current and future orders.

19. It is not argued on behalf of the father that the Application was filed for an ulterior purpose and, certainly, that is not the mother’s case.  It is important to note that the consequential orders under Division 13A are a matter for the Court, and so there is no real opportunity for the applicant to identify the orders they want in their application.

20. The mother has ultimately indicated what order she wants and it is possible that on the day she filed the Application she wanted to enforce the order.  I think not, but, as I say, such a finding was not pressed on me on behalf of the father.  It is the mother’s contention that she had a proper purpose in bringing the proceedings. 

21. The concern about the mother’s motivation arises because in the evidence in support of the Application, the mother says things like, “[Mr Morse’s]…” (Mr Morse is the father) “…actions in leaving the boys alone with me shows that he thinks I am a perfectly capable and responsible mother and the hypothesised threat is rather a fabrication that [Mr Morse] does not take seriously.”  And “I believe that the order that I be supervised around my children, who were perfectly looked after when I had custody, should be lifted.”

22. Those two disconnected paragraphs in the mother’s affidavit and the mother’s submissions to me, suggest that it was no part of her intention to seek compliance with an order made on 23 March 2015 or of any other order of this Court.

23. I have said enough about that.  The question becomes, what is the utility of hearing the mother’s application?  It is the mother’s argument –that she wants the Court to make a finding that the father’s contention in the proceedings that there was danger to the children from her or from the stepfather, her partner, was a contention that he did not honestly hold at any time and that his conduct on 2 May 2015 in leaving two of the children unsupervised in the mother’s presence for a period, demonstrates that whatever he might have thought beforehand, he did not, at that time, believe that there was any such risk.  He did not believe that the mother’s time should be supervised.

24. It is the mother’s argument that there is no other forum for a finding that the father was disingenuous about his concerns in relation to the mother.  I think at that point the mother has completely misunderstood the purpose of contravention proceedings, indeed the purpose of proceedings.  It would be open to the Court to make a finding at a final hearing, on hearing evidence about this particular incident or some other incident, that the father did not hold a genuine belief in relation to his fears about the children in the presence of the mother or the stepfather.

25. It would simply be a matter of that same evidence being presented at the final trial and the mother asking for that finding.  Whether the Court would make that finding or not, that is a different issue.  Whether such a finding would be seen to be relevant to the proceedings, that again, would be a matter for the Court.  The same issue arises before me.  In my view the finding sought by the mother would not be a required finding in contravention proceedings.  In my view, this is a finding that the mother wants, not for the purpose of contravention proceedings but so as to seek changes to the substantive orders.

26. The mother is an educated person.  She says she is not a lawyer and that she understands from reading the Family Law Act, that this was her only forum for such a finding.  That is patently not the case.  However, as she says, she is not a lawyer.  I have not heard this argument made by a self-represented litigant in 20 years on this bench but perhaps it an available argument.  I have not followed the course that the mother followed through the legislation.

27. The mother says that she brought her Application in a timely way, and that is true.  She filed it in May 2015 and the alleged conduct was on 2 May 2015.  I think she filed on the 4^th so she was very, very timely.  She said that she did that in good faith.  And for the purposes of today, that seems to be accepted and I have no reason not to accept it.  But as to its utility, as to its relevance, those matters are significantly in doubt. 

28. To labour the point, in the final parenting proceedings if the Court thought it was relevant that one of the parties had fabricated an allegation, obviously the evidence in support of that, if the court thought it was relevant, could be put before the Court.  That might well be the same evidence that the mother would want relied on in these proceedings.  Her evidence in support of this Application, the evidence of her witnesses, that same material could be put before the trial judge and the trial judge would be left to make of that, what he or she could.  And the mother could press and ask the court to make that finding.

29. The problem of the matter, seen in the mother’s proposed orders, that:

    Pending further order, the father be prohibitorily injuncted from expressing a view that the children are at significant risk of harm in the unsupervised presence of the mother or the step-father.

30. In my view such an order would be against public policy.  It is a nonsense.  Who is to know what might happen in the future?  If a parent was prohibited from raising a concern about the safety of children because a court had ordered that, no matter what happens in the future, that person was forever restrained from expressing such a view, that would be an odd, obviously inappropriate order.  It could put a child in harm’s way and it would be unenforceable, of course.  The purpose of the order, according to the mother would be:

    For personal protection of the mother against legal abuse and the personal protection of the child from risk of harm to the children’s equity in their primary (birth) attachment relationship.  (That is their relationship with their mother) which could carry follow-on risks to the cognitive development of the children.

31. Unfortunately, I think the mother has made this quite more complicated than it needs to be.  If a Court makes orders, a party can bring facts before the Court to have the order enforced.  If a party establishes that there has been a contravention of an order, then the Court has a range of measures it can apply to cause compliance with that order or other orders.  They include sending the parents to parenting programs.  They also include making changes to the orders.  That is unlikely to mean, reversing the orders. 

32. Changes could include making a change to the handover arrangements if the parties were having problems with handover.  The Court can place a party on a bond to put pressure on them to comply.  The Court could fine a party or suspend a fine to put pressure on a party to comply with the order.  The Court can, in very serious cases, make an order that a person be imprisoned to pressure them to comply with court orders.

33. Typically an order for imprisonment might be suspended depending on further compliance.  If a person was out of step with a court order and there was something else they could do to comply with it, for example, if a parent had arranged for a child to be taken out of the country and the child was being held in that country, a sentence could be passed for that person to be jailed for 12 months or until they caused the orders to be complied with.  In other words, until they brought the child back into the country.  Then there would be no need for any further punishment because the purpose was to comply with the order.

34. In my view there would be no utility in hearing the mother’s Application. Whatever she may have thought on the day she commenced the proceedings, her current motivation is not to cause compliance with the order.  I asked her what the benefit of hearing the application would be and she responded to the effect - bringing the disingenuous position of the father to the Court’s notice; revealing him as an abuser of the legal system.  She mentioned this injunction revealing the true motive of the father.  She said:

    The application was to compel compliance but not just of an order.  Compliance with the father’s fiduciary duty to the family. 

35. At that point there was a departure from the intended purpose of the proceedings.  On any view, there is no legitimate forensic purpose in hearing the mother’s Application that the father be found to have contravened orders of the Court. 

36. I do not know what the facts are but I am told that, sadly, although the Court has made an order that the mother have unsupervised time with the children on the basis that the mother provides an undertaking in certain terms, she is not having time with the children.  And I understood from something she said that she objects to giving the undertaking.

37. I do not know how that all came about, or whether she indicated to the trial judge that she would offer such an undertaking.  The mother has her rights in relation to those orders.  If circumstances change, she can bring the matter back to the Court.  If she disagrees with the order as it was made, she can file an appeal. 

38. The mother spoke about another category of review, of judicial review of what a court does.  Perhaps she is referring to prerogative writs.  They could arise where a judge has refused to discharge his or her responsibilities or an application is made to prevent a judge discharging their obligation in proceedings.  In that way applications might be made for prohibition or mandamus.  There is no suggestion there has been any such application.

39. The situation is nice and simple.  If a court makes orders, the parties are to comply with them unless to do so would endanger a child.  If they do not like the orders, they can appeal against the order.  An appeal against an interim parenting order can be lodged, without leave.  If circumstances have changed, the original orders may be able to be re-visited.  Beyond that, another judge is not free just to make a different decision on the same facts.

40. For those reasons, the mother’s Application, filed 4 May 2015, being an application that the father be found to have contravened orders affecting a child, is dismissed.  I reserve the question of the costs of the parties of and incidental to these proceedings. 

41. The mother has raised with me the fact that among the powers of the Court in relation to a contravention found to have been established where there was not seen to be a serious challenge to the Court’s authority, or it was not a repeated contravention, there is a provision once a contravention has been established for the court could adjourn the proceedings.

42. When the prosecution of proceedings would be an abuse of process, the adjournment of those I proceedings to allow some other application to be made, is a complete nonsense.

I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 28 April 2016.

Associate: 

Date:  23 May 2016