DWYER & WHITTINGTON

[2019] FCCA 673

FEDERAL CIRCUIT COURT OF AUSTRALIA

DWYER & WHITTINGTON [2019] FCCA 673

Catchwords:
FAMILY LAW – Contravention Application – summarily dismissed as orders not in a form where they can be enforced – adjourned to consider whether order should be made under s70NBA varying existing orders.

Legislation:

Family Law Act 1975 (Cth), s.70NBA

Applicant: MS DWYER

Respondent: MR WHITTINGTON

File Number: CSC 33 of 2017

Judgment of: Judge Altobelli

Hearing date: 7 March 2019

Date of Last Submission: 7 March 2019

Delivered at: Cairns

Delivered on: 7 March 2019

REPRESENTATION

Solicitors for the Applicant: Bassano Law

The Respondent appeared in person.

BY CONSENT IT IS ORDERED:

1. Pending further Order, both parties be restrained from:

   (a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the children [X] born … 2004 and [Y] born … 2007 (“the children”).

   (b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.

THE COURT ORDERS THAT:

1. The Father’s Contravention Application filed 10 December 2018 is dismissed.

2. The Father is to file and serve a Response to an Application in a Case together with an Affidavit in support by no later than 12 April 2019.

3. The parties are to do all acts and things to attend a Child Inclusive Conference on 26 March 2019 at 9:00am at Town A.

4. The matter be stood over to the Mention on 13 May 2019 at 9:30am.

NOTATION:

A.THE COURT NOTES THAT the Mother’s Application in a Case is returnable 13 May 2019.

IT IS NOTED that publication of this judgment under the pseudonym Dwyer & Whittington is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 33 of 2017

MS DWYER

Applicant

And

MR WHITTINGTON

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The application before me relates to [X] who was born on … 2004, and who is, therefore, 14 and a half and well on the way to 15, and her sister, [Y], born … 2007, and that makes [Y] 11 years old.

2. The application before me was the Father’s Contravention Application filed 10 December 2018. His Contravention Application was supported by his Affidavit of 10 December 2018. The mother provided one Affidavit on 28 February 2019 in the context of the present proceedings. It was clear to the Court that the Contravention Application could not possibly succeed because the Orders in respect of which the allegation was made had been contravened were not in a form that could be enforced.

3. I invited Ms Bassano to make an application for summary dismissal and made that Order. It is unfortunate, the Court records, that the Order of 12 July 2017 had not been drafted with greater precision. Nonetheless, there is nothing that can be done about it now. One hopes that any future Orders in relation to [X] and [Y] can be drafted in a way that they can be enforced if there are subsequent problems in implementing them.

4. The Father represented himself on 12 July 2017 when the Order was made. It is possible that he cannot access paid legal representation. I would encourage him to use whatever services the Court might provide by way of a duty lawyer if it comes to any further orders in relation to the children. I made it clear to the parties, however, that I intended to exercise my powers under section 70NBA of the Family Law Act 1975 (Cth) to vary the existing parenting Orders.

5. The Father indicated that if I were to do so he would be seeking an order for the children to spend unsupervised time with him each alternate weekend. The Mother through her Solicitor, Ms Bassano, indicated that the Mother would be seeking an order for no time. I had foreshadowed to both parties the possibility of making an order for supervised time at the Town A Contact Centre. However, making an order that would be enforced.

6. I heard brief submissions from Mr Whittington and from Ms Bassano. A number of documents were tendered in evidence. In particular, the Child Inclusive Conference Memorandum of 27 June 2017 and Ms B’s Family Report of 21 November 2017. Whilst documents from the supervised contact centre were not actually tendered in evidence, an aide-memoire was provided and there was quite a detailed exchange between Ms Bassano and myself about what the documents would establish if they had been tendered in evidence. I will come back to that in a moment.

7. In any event, Ms Bassano quite properly and consistent with her duty to the Court, suggested that another alternative was, in fact, to have [X] and [Y] attend another Child Inclusive Conference so that the Court and indeed both parents would have the benefit of a current indication of the children’s views and their experiences of spending time with the Father in the past. The fact is that the information that the Court has about the children is quite dated. The Court was attracted to this idea and Mr Whittington ultimately, I think, accepted the Court’s guidance about this.

8. The Court noted that, in fact, it was a potentially risky strategy from the Mother’s perspective. It might show that [X] and [Y] actually want to spend time with their father. Of course, it’s a two‑edged sword. The report might say something quite different. In any event, before any order under section 70NBA can be made, and indeed, before the Mother’s application to vary the existing Orders can be determined, it is in the best interests of both [X] and [Y] to have the most recent information.

9. The proceedings were then adjourned to the first return date of the Mother’s Application in a Case to vary the Orders, and directions were made for the Father to put on his case after the Child Inclusive Conference Memorandum is produced. Orders were made by consent for neither parent to discuss these proceedings or to denigrate the other. The Court noted, however, that the Mother would need to tell [X] and [Y] about the Child Inclusive Conference.

10. I wish to make some comments for the benefit of the parents, and perhaps even to let any Judge who subsequently deals with this case know what was on my mind this morning. Of course, any subsequent Judge will have the benefit of the Child Inclusive Conference Memorandum and will probably have access to the tender bundle consisting of the documents produced by the supervised contact centre. Nonetheless, these observations might assist the parents.

11. Based on what I have read so far in this case and based on what I have heard from Mr Whittington and Ms Bassano, I am still very concerned that these two children are not spending time with their father. The Tourette’s Syndrome that [X] is unfortunately experiencing cannot be attributed on the evidence before the Court to either spending time with the Father or not spending time with the Father. We just do not know. It is an equivocal factor. And there is no reason to suggest that the Tourette’s Syndrome itself is a reason why [X] should not be spending time with her father.

12. The Father’s past experiences with the firm called … Contact Service is not necessarily a reason why he should not be spending supervised time with the children. The summary of the contents of the documents to be tendered from the Town A contact service would not, in my view, explain why these children should not be spending time with their father. But for a technicality in the drafting of the orders, it is quite possible that Mr Whittington’s contravention application would have had another result.

13. We are dealing with older children whose views must be taken into account. We are dealing with independent evidence that is dated in the case of the Family Report and the Child Inclusive Conference Memorandum. We are dealing with documents produced on subpoena by the supervised contact service which appears at least on the basis of the summary given to me to be equivocal and not actually providing an explanation for why contact was stopped.

14. The Child Inclusive Conference forthcoming will provide insight and hopefully will guide the parents as well as a subsequently constituted Court as to what should happen in this case.

15. In summary, based on the documents that are before this Court, I still do not understand why [X] and [Y] are not spending at the very least supervised time with their father. I would encourage the Independent Children's Lawyer, who will probably obtain a copy of these Reasons for Judgment, to be as proactive as possible and perhaps assist in ways in which Mr Whittington might be able to address some of the concerns that Ms Dwyer expresses in her Affidavits. There might, for example, be courses he can do.

16. This is a case, in my view, where the Independent Children's Lawyer needs to be very proactive. The consequences on [X] and [Y] of losing their relationship with their father are potentially serious, and it is not an order or an arrangement that the Court should allow to happen lightly.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 19 March 2019