Eden and Lowes - [2008] FMCAfam 509

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EDEN & LOWES

[2008] FMCAfam 509

FAMILY LAW – Contravention – contempt – no breach of any order – evidence does not demonstrate any contravention involving a flagrant challenge to the authority of the Court – complaint is premised upon a remark make in cross-examination in the course of proceedings – parties have demonstrated a clear incapacity to communicate.

Family Law Act 1975 (Cth)

Applicant:

MR EDEN

Respondent:

MS LOWES

File Number:

BRC 1107 of 2007

Judgment of:

Burnett FM

Hearing date:

23 March 2008

Date of Last Submission:

23 March 2008

Delivered at:

Brisbane

Delivered on:

23 March 2008

REPRESENTATION

Applicant appeared on his own behalf

Counsel for the Respondent:

Mr Kehoe

Solicitors for the Respondent:

SJP Solicitors

ORDERS

That the application for contempt filed 1 February 2007 is dismissed.
That the application for contempt filed 15 February 2007 is dismissed.
That the contravention application filed 1 February 2007 is dismissed.
That there be no order as to costs.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 1107 of 2007

MR EDEN

Applicant

And

MS LOWES

Respondent

REASONS FOR JUDGMENT

In this case the applicant Mr Eden has brought, in effect, three applications: two pertain to alleged contempts, one deals with contraventions, although the contravention application itself is broken up into what appear to be three discrete incidents of contravention, they being that on 20 June 2006 an undertaking was given in respect of which Ms Lowes, the respondent, by inference, undertook to supply medical reports to the applicant father which undertaking was breached.
The second, that in respect of an event that occurred on 7 December 2006 where it is alleged the respondent mother, without reasonable cause, did not allow the daughter weekend contact with the applicant father from Thursday 7 to 11 December 2006.
Next, that on 30 November 2006 the respondent mother, without reasonable excuse, did not allow telephone communication between the daughter and her father between 7 and 7.30 pm on Thursday, 30 November and on Thursday, 7 December.
And then finally on 30 November the respondent mother, without reasonable excuse, did not allow overnight contact with her father on the night of 30 November.
If I can deal first with the issues concerning the contempt applications. Contempt is defined in the Act in s.112AP in these terms. “Subject to subsection (1A), - which does not apply in this case - this section applies to a contempt of a Court that:
a)does not constitute a contravention of an order under this Act; or
b)constitutes a contravention of an order under this Act and involves a flagrant challenge to the authority of the Court.
Particulars of the contempt complained of in the applications are first, that there was a verbal undertaking given to the Court on 20 June 2006 to communicate via the respondent to the applicant with regard to welfare matters of the children. In the second contempt application, which is the application filed on 15 February it is complained, that the respondent had not communicated with the applicant with regard to the growth hormone treatment of their daughter [X] in deliberate breach of her undertaking to the Federal Magistrates Court on 20 June 2006.
For reasons I will come to shortly, there was no breach of any order in any event, but even if there had been in my view they were matters that would fall within the contravention provision rather than matters that would fall within the second paragraph of sub-s.112AP(1). In other words, the evidence does not demonstrate any contravention involving a flagrant challenge to the authority of the Court. Even if they were flagrant breaches they would not be, as I see them, to the authority of the Court.
But in any event, before proceeding to that, in my view, the complaint fails in limine because the complaint is premised upon a remark made in cross-examination in the course of proceedings before His Honour Jarrett FM on 20 June 2006. In the course of re-examination a question was asked of the respondent by Mr Hamwood of counsel in these terms. Mr Hamwood:
“You were asked about the prospects of your discussing matters with Mr Eden. Is that something you wish to undertake or not?”
Answer:
“Yes, yes, it is.”
It is quite clear from the text of the cross-examination that the sense in which the term "undertake" was used was to mean something in the order of "was this something you were prepared to do,"not a promise in the sense that an undertaking to a Court might otherwise be taken to be and this be regarded as one which is enforceable as an order.
Furthermore, and it seems apparent again by reference to the fact that the matter before his Honour Jarrett FM proceeded to trial, there was no consensus between the parties at all and his Honour proceeded to make orders having heard the contest between the parties and those orders were made without any undertaking to provide it in a formal sense.
As was debated with the respondent in the course of the application undertakings, when used in the sense that are the subject of complaints or contravention proceedings, have a particular meaning in this environment and the meaning is not satisfied in this instance and accordingly that particular complaint must fail.
As I say, it would fail in any event because not only does it not constitute contempt, but furthermore, it does not in any event constitute a contravention. Accordingly in so far as the contravention application would be said to be the default position of the applicant it too fails.
That then leaves the four contraventions which are the subject of the contravention application filed 1 February 2007. In the proceeding affidavits were read by each of the parties and in this case the applicant, who appeared for himself, cross-examined the respondent. I will make a few observations about that procedure and the impressions that I got about the parties because it was not absolutely necessary for me to make definitive rulings on a number of issues because many of them do not appear to have been terribly much in dispute. I think it is important that the parties appreciate that matters that occurred before me have had some bearing upon my determination concerning allegations and counter-allegations.
One of the real issues that became apparent in the course of this application - and it is evident from its long history and I note in that regard the chronology of the parties provided as an annexure to the submissions made on behalf of the respondent – is that these parties have a demonstrated and clear incapacity to communicate. It would seem from what I saw to today that to a large part there is not only an incapacity to communicate, but further that communication between them cannot be had on terms that one would regard as civil.
By that I mean not that necessarily parties swear and curse or conduct themselves in a manner which could be regarded as ribald or discourteous, but rather questions are put by each other in the third person. In circumstances where these are parties who have known each other for now in excess of 20 years, close to 22 years, and yet the applicant refers to himself when asking questions of the respondent as "the father" demonstrates there is clearly no dialogue at all between these people. That was more than evident to me today.
Furthermore, it was more than evident to me today that notwithstanding the very best efforts of the applicant to be polite, and there was no question that he was reasonably polite, there is a significant undertone of aggression in the way in which he presents himself. I use the term ‘in the course of discussion’ with him to describe his conduct as being passively aggressive and that is, in fact, the distinct impression I formed from the manner in which he asked questions and his demeanour and tone towards the respondent.
Clearly, the applicant has issues to deal with in relation to his communication with the respondent and I have no doubt at all that that attitude, if it is something that finds its way or percolates down to the children, is the cause of significant difficulty between these parties in terms of their exercise of their living with and spending time with arrangements.
I am not for a moment excusing the respondent because, by her own admission, she confesses to not having done things that perhaps may have made things a little easier, but let me be quite frank and say it was apparent that there was no doubt that the respondent has not responded appropriately to the applicant's approaches to her and maybe that is something that arises by reason of a long relationship.
The fact remains I have no doubt that the applicant's means of communication would understandably give rise to some degree of antagonism on the part of the respondent. As I say, it does not justify the respondent's response, but if what I saw today was in any sense even a fraction of what these parties are like outside the Court environment I can well understand that there would be almost no communication between them at all. That is, of course, disappointing because it rather ignores the real issue in this case and that, of course, the interests of the children.
In any event, I make those observations because I think they are material to matters relevant to this application and to what I would regard as a somewhat pedantic approach by the applicant in bringing the application. Let me say that whilst the applicant might prima facie have demonstrated some basis for one of the complaints I think a more reasonable and commonsense approach on the part of the applicant rather than this passive aggressive approach may have achieved somewhat greater results for him than he is going to get today.
Dealing then with the first incident that is complained of, was in relation to the alleged undertaking which, as I have already determined, was not an undertaking.
The next then relates to an event which is alleged to have occurred on 7 December at about 2.45 at [omitted] College where it is alleged the respondent mother without reasonable excuse did not allow her daughter weekend contact with her father from Thursday 7 to 11 December 2006.
The mother concedes that that contact event or that spending time with event did not take place. However, in her affidavit she says this in relation to those matters: Starting at para.6 of her affidavit, that by way of background; on 27 November one of the children of the marriage, [Y], had run away from home. It became apparent during the course of cross-examination of the parties that [Y] appears to have phoned his father that night and arrangements were made for [Y] to meet dad over the back fence or somewhere in that vicinity and then travel and stay with his father.
I might just interpolate here that there is a perception on the part of the mother that the child prefers to go to dad because dad encourages activities such as BMX cycling, has a swimming pool and other enticements, which she says she cannot afford to offer him. And whether that be the fact or not it certainly seems to be not an unreasonable inference to draw when one thinks of the interests of a 9 year old boy.
But in any event, it seems, as is deposed to, [Y] phoned his father, arranged to be collected, and was collected. This occurred, the respondent says, without her consent and that there was no communication by the applicant, that he in fact intended to accede to the request of the child and this arrangement appears to have sort of been arranged between them inter se.
She relates the involvement of the Department of Child Safety and the police, but ultimately relevant to the complaint today says that as a result of [Y]’s behaviour and the fact that the applicant refused to return [Y] and because of his generally aggressive behaviour, which as I say I find readily believable, she says that her daughter told her that she was frightened to have contact with her father because she was not too sure that she would be returned home. She swore that despite what she said she continued to encourage [X] to go on contact. She reaffirmed that matter in her cross-examination.
Now, so far as contravention is concerned s.70NAC provides for the meaning of a contravened order and it says that:
“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.”
This is a case where there is an order by which she is bound. The question becomes whether she intentionally failed to comply with the order or (b) made no reasonable attempt. Quite clearly in this instance, given that a 12 or 13 year old child has expressed an intention not to go on contact it cannot be a case where she has intentionally failed to comply with the order. The question becomes whether she made reasonable attempts to comply with the order.
The fact remains with a girl of that age, 12 or 13, if the child does not want to go on contact visits and there is a reasonable basis for an expression of that opinion, then the best a parent can do is counsel a child to go on contact visits. The respondent says she did in fact counsel and encourage [X] to go on contact, but despite that [X] refused.
In my view, there can be nothing more done by a parent short of physically removing a child from one location to another, which I think is not necessarily in the best interests of a child, particularly in a case like this having regard to what I perceive to be the relationship between these two people. On that basis alone I think that the application should fail.
In any event, if I am wrong as a matter of law as to whether or not there has been sufficient evidence of reasonable attempt, I will go on to consider whether there is a reasonable excuse for contravening the order.
Section 70NAE deals with the meaning of reasonable excuse for contravening an order and relevantly in relation to spending time with provides at sub-s.5 that:
“A person is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if
(a)the respondent believed on reasonable grounds that not allowing the child and a person to spend time together was necessary to protect the health or safety of a person, including the respondent or the child; and
(b)the period during which, because of the contravention, the child and a person did not spend time together was not longer than was necessary to protect the health and safety of the person referred to in paragraph (a).”
Quite clearly, if the child [X] was afraid and had a reasonable basis for being fearful of her father then I think in those circumstances it would be fair to say that there were reasonable grounds for the child not to spend time because there would have been a basis to feel the need to ensure the child was protected and that her health and safety was given paramount consideration. There is absolutely no point in forcing contact if it is only simply going to result in some form of emotional distress.
As to how we resolve these issues I will speak of in a short time, but for the purposes of the contravention application I am not satisfied that the allegation has been made out and I will dismiss the application so far as it concerns that allegation.
The next allegation, which rather ties into the next two allegations, are that:
“On 30 November 2006 first at 2.45 the respondent mother, without reasonable excuse, did not allow her daughter overnight contact with her father, the applicant, on Thursday, 30 November 2006.”
And perhaps as an addendum because it occurred on the same day:
“The respondent mother, without reasonable excuse, did not allow telephone communication between the daughter and her father between 7 and 7.30 on 30 November and Thursday, 7 December.”
Again, these matters are addressed by the respondent in her affidavit.
Dealing first with the event of overnight contact on the 30th, the respondent swears that on the 30th [Y] had still not returned home. [X], she swears, was still adamant that she was not prepared to go on contact. She swears that [X] did not attend at school the day that she was to go on contact with her father that night and – and I heard evidence about this – there was some difficulty with a skin condition and that a medical certificate was provided in that regard.
Perhaps one issue or one excuse seems to become confused with the other, but the fact remains that, harking back to the deposition made in para.6, there was obviously a serious issue between these parties arising from the circumstances in which it seems that [Y] had decided to vacate one residence and take up in another.
For reasons which I have outlined before – and I apply equally to this instance – I am not satisfied that she failed to make any reasonable attempt to comply with the order. As I accept her evidence broadly, she attempted to encourage contact between the parties.
Equally, if I am wrong, as I say, in the matter of law in relation to the application of whether there were reasonable attempts, then I am satisfied in terms of sub-s.(5) of s.70NAE that there were reasonable grounds for not requiring the child to spend time with the father on that occasion on the same basis as I have earlier articulated.
Although it perhaps may have some marginal additional relevance, I do not see the skin condition as being, of itself, overly important in this context, I think it is the emotional issues involving the daughter that have the greatest moment here. So I dismiss that complaint.
Finally, in respect of 30 November 2006 there is the question of a refusal to allow telephone contact and, of course, not only on that night, but also 7 December. In that regard it was put in cross-examination – and I will take it to be that this is the applicant's case - that there were about 26 occasions where he seems to have telephoned the respondent without having received a response. The respondent says, acknowledging that those calls could have been made, that they probably went through to her answering machine.
I also take into account exhibit 2, which is an e-mail which was sent by the daughter [X] to the applicant, which is in part in these terms:
“Dad, Please stop sending me texts because if mum finds out I will be in so much trouble.”
This is an e-mail correspondence. So it seems apparent to me that even putting aside the complaint made, that even if there were difficulties experienced on 30 November and 7 December it seems, at least within a month of that time, namely 7 January, - it is quite evident that the daughter is communicating with dad via e-mail and mobile phone texting.
It strikes me as unduly pedantic on the part of the father to complain about these two events – and I am not satisfied there is any basis for complaint in any event. It does strike me as unduly pedantic to take these two instances to task by this contravention application, when it is quite apparent from the other material before the Court that the father is in fact communicating with his daughter and, in fact, on a far more liberal basis than might otherwise have been the subject of orders made by the Court.
I think, of course, communication between a father and a child is to be encouraged and perhaps now with the advent of mobile phones and

e-mail no doubt that sort of communication can be further encouraged without the need for the Court to have regard to earlier orders made in relation to the telephone contact.

But coming back to the issue here, the question is as to whether or not the mother, without reasonable excuse, did not allow telephone communication and I am not satisfied that she did. I am satisfied that there was no intentional failure on her part to comply with the order and I am satisfied that she has made all reasonable attempts.
She had a telephone recording service there. No doubt the 26 phone calls were received. The children no doubt are sufficiently old enough to work the telephone. They would, in any event, know by now I would have thought, given these orders have been in place since 2002, that Thursday night is dad's night to phone home. In all of those circumstances it strikes me that the children, for whatever reason, have chosen not to phone their father and I am not satisfied there has been any unreasonable interference with the children by the mother in relation to those matters, so I will dismiss that complaint as well.
Overall, I have dismissed all the proceedings.
In terms of costs, an application was made for costs. I am not going to make an order for costs.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Burnett FM

Associate: Beverley Schmidt

Date: 8 July 2008