Egbert and Egbert

[2009] FamCA 871

FAMILY COURT OF AUSTRALIA

EGBERT & EGBERT [2009] FamCA 871

FAMILY LAW – CHILDREN – Interim

Family Law Act 1975 (Cth)

Cowling (1998) FLC 92-801
Goode & Goode (2006) FLC 93-286
McClintock (2009) FLC 93-401

APPLICANT: Mr Egbert

RESPONDENT: Ms Egbert

INDEPENDENT CHILDREN’S LAWYER: Ms Webb

FILE NUMBER: MLC 2964 of 2008

DATE DELIVERED: 21 August 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 August 2009

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Schetzer

INDEPENDENT CHILDREN’S LAWYER Danielle Webb

Orders

1. That the application for contravention filed by the husband on 27 July 2009 is dismissed.

2. That the husband pay the wife’s costs of $1520.

3. That the payment of the costs be stayed for a period of two months.

4. That the application in a case filed 27 July 2009 by the husband is dismissed.

5. That there be no order for costs in respect of that application

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2964 of 2008

MR EGBERT

Applicant

And

MS EGBERT

Respondent

REASONS FOR JUDGMENT

The contravention issues

1. For reasons which will hopefully become a little clearer, I propose to dismiss the contravention application in respect of both counts.  I have before me an application filed by Mr Egbert, to whom I will refer as “the husband” in these reasons.  He filed it on 27 July 2009.  In addition to that application, he also seeks to rely upon an affidavit, which has not, as yet, been formally filed, although it was attached to the back of his application.  I have given him leave to file that affidavit.  The contravention alleged, leaving aside the formalities of the form, is that on 29 November 2008 at 12.55 pm, at a place which is described as an address in P:

   …the respondent, without reasonable excuse and against advice from the ICL and her legal representative, without prior notification, failed to deliver the child, […], for a pre-scheduled access visit.

   The second allegation is that on 20 May 2008 at Melbourne, the respondent:

   …breached the Family Law Rules 13.04-13.05(2) by:

   (1)not making full and frank disclosure of her financial circumstances; and

   (2)      did not file an affidavit giving further particulars.

2. I propose to deal with the second matter first.  Mr Schetzer, on behalf of the wife, puts that there is no case for the wife to answer in respect of that second allegation, because there is no order breached.  There may have been an order to which the husband refers, that the wife file a financial statement.  Whether this is a children’s matter or a financial matter, in my view, does not matter.  The important point is that the evidence upon which the husband relies is simply this.  He says that the wife filed a financial statement in which she asserted her average weekly income was $914, which is an equivalent of $47,528 per annum.  He attached to the affidavit a child support assessment dated 21 May 2008 from the Agency, which shows the applicant’s adjusted taxable income for 2006/2007 was $88,071, and the respondent’s adjustable taxable income for ’07/08 was $129,032.

3. Leaving aside any questions of whether or not that could be a contravention under Part VII, and it is hard to see how it could be, it is hard to imagine how the evidence establishes that the wife has breached anything.  All it says is that she asserts that she earns $914 per week, and the Child Support Agency differs.  That is certainly not a basis upon which I could say that there is a breach of any order, even if there was one.  On that basis, that allegation must be dismissed. 

4. I turn, then, to the first allegation.  The circumstances of this allegation are, to say the least, confusing.  I expressed concern about the fact that it was alleged to have occurred in November 2008, and here we are, almost nine months later, and it is before the court.  The husband’s explanation for that is that he has had some problems with a psychiatric report, and there has been arguments, apparently, between the parties, about “make-up” time.  None of those matters affects the fact that there has been substantial delay in bringing an application before the court to have one of its orders considered.

5. First and foremost, it is important to point out that the wife, who is represented by her lawyer, has denied that she has breached the order.  The denial of the breach puts the applicant in a position where he has to prove the breach.  The evidence upon which the husband relies is rather simple.  He says that on 18 November 2008, the supervisor, who was appointed by the court, and who happens to be his sister, emailed to the Independent Children’s Lawyer to gain instructions about the wife wishing to change a pre-scheduled access visit.  It is conceded by the wife that 29 November would have been an contact visit date.

6. There is correspondence attached to the husband’s affidavit, in which he shows that there were problems for the husband’s sister changing the date.  It appears that the wife wanted to take the child to one or two birthday parties.  There has been some argument about whether there were two birthday parties, but I suspect that is an argument about whether or not there is corroboration, because the evidence presented by the husband in his documents suggests that there were two birthday parties to which the child had been invited.

7. Just exactly what happened on that day is a little hard to follow.  The first piece of correspondence shows that on 19 November, the supervisor wanted to change the contact dates so that the child could go to the parties.  I am not entirely clear where that came from, but presumably, the supervisor was endeavouring to sort out something that should have been sorted out between the parties.  Obviously it could not.  The email is addressed to the Independent Children’s Lawyer.  The Independent Children’s Lawyer, some days later, and very close to 29 November, sent an email to the husband and to the wife’s lawyer, setting out some correspondence, which has now been produced.

8. There is also an annexure to the husband’s affidavit showing, from the wife’s lawyers – although it is dated 28 August 2008, it must have been 28 November 2008 – that the wife had been unsuccessful in trying to swap contact dates because of the birthday parties.  The solicitors enclosed a copy of the relevant invitations.  Just exactly what happened thereafter is not at all clear to me, because the next email to which the husband refers is dated 2 December 2008, in which he complains bitterly, and possibly justifiably, that he did not get to see the child on 29 November. 

9. The fundamental piece of evidence that is missing in this whole case is from the person who actually knew exactly what was going on and why the child was not made available to the husband on 29 November 2008.  Now, normally, that would not be a problem, but it is significant to note in this case that on 23 May 2008, Senior Registrar Fitzgibbon, in what appears to be a defended order, made an order that the supervisor to whom I have referred, execute an undertaking to supervise the time between the father and child.  That was made quite specific in the orders.  The order then goes on to read that upon that being done, then the father was to see the child each alternate Saturday from 1 pm to 4.55 pm, and otherwise as agreed.  The matter came back on an application before the Senior Registrar on 2 October 2008.  Paragraph 2 of the Senior Registrar’s orders reads as follows, that:

   Should the husband be unable to spend time with the child pursuant to the orders made 23 May 2008, due to the unavailability of the supervisor, [the husband’s sister], then the husband spend time with the child on another day to make up for the missed period of time, and it be supervised by [his sister].

10. The evidence in this case shows that the husband’s sister was, at least prior to 29 November, saying that she was not able to change the program that had been set out, but I have evidence thereafter of ongoing negotiations.  I do not know the outcome of those negotiations.  That creates a problem for the person endeavouring to prove that a contravention has occurred.  A second problem is that paragraph 2 of the Senior Registrar’s orders, to which I have just referred, talks about the husband spending time with the child on another day, to make up for any missed time, and again, it be supervised by his sister.  I have evidence from the husband about the fact that there was a date in February which he could not definitely say was not a make-up day.  I am not at all clear on whether, in fact, the second part of paragraph 2 of the orders of 2 October 2008 has been satisfied, in any event.

11. An application for a party to be dealt with by the court is brought under Division 13A of the Family Law Act 1975 (Cth) (“the Act”). It is part of Part VII of the Act. The provisions of Division 12A apply to Division 13A, and as such, the rules of evidence do not strictly apply. In a recent Full Court decision of McClintock (2009) FLC 93-401, in which I was a member, all members of the Court made it clear that Division 13A was intended to be coercive, not punitive. When one thinks about that, one wonders why a court is being asked, nine months after the event, to do something coercive to make the orders work, when the evidence is that, for the last nine months, the orders have worked. I am perplexed as to what the philosophy behind the husband’s application was. However, having said that, the definition of contravening an order is set out in s 112AB. It says that:

    A person shall be taken, for the purposes of this Part, to have contravened an order under this Act if and only if, where the person is bound by the order, he or she has intentionally failed to comply with the order, or made no reasonable attempt to comply with the order.

    The use by the Parliament of the words “and only if” must place the emphasis of the court on ensuring that, to a very large degree, the person who applies, is put to the proof.  What I am not at all clear about, for the reasons I have already articulated, is whether the wife intentionally failed to comply with the order, or made no reasonable attempt to comply with the order, having regard to the fact that I do not know what the husband’s sister was doing about making the child available on 29 November.  In those circumstances, the husband, as the applicant, does not prove that the wife has intentionally failed to comply with the order. 

12. I bear in mind, in this case, that the wife has not gone into the witness box and been cross-examined.  On the state of the evidence as it is, there is no basis for me to call upon her to do so, because on any view, the evidence of the husband’s sister, which is, in my view, critical by virtue of the orders of May 2008 and October 2008, is missing.  Under those circumstances, there is no basis for me to call upon the wife to give evidence to justify what occurred on that occasion.  In those circumstances, the application must be dismissed. 

The costs application on the contravention issue

1. This is now an application by the wife that the husband pay her costs associated with the unsuccessful application that she be dealt with by the court for contravention of the order. Section 117 of the Act sets out that each party shall pay their own costs. The exception to that rule is where a court is satisfied that it is justified in departing from the rule on the basis of some facts or circumstances that make it outside of the ordinary. If a court thinks there are circumstances that justify making an order, it must take into account the matters set out in s 117(2A) of the Act.

2. This is an application that relates to a contravention of a parenting order. The basis upon which I think the circumstances justify an order for making costs against the husband are that he has delayed the matter for a period of some nine months. As I pointed out, contravention applications are designed to bring orders back on track, so that the original orders of the court are carried out. As the Full Court has said, Division 13A is coercive, not punitive. Having regard in this case to the fact that all of the orders, apparently, have been otherwise complied with in the last nine months, there was no justification for the delay in this application.

3. If it had been a different application associated with compensation for time, having regard to the nature of the orders made in May and October 2008, it might have been a different situation. This is a case where there are circumstances to justify departing from the rule. In terms of s 117(2A), I take into account that the parties’ respective circumstances are modest. The husband’s income is about $43,000 a year, and the wife is presently not working. The husband is obviously not legally aided, and nor is the wife. The wife is privately funding her case. The husband is unrepresented, and therefore does not have that expense.

4. The wife was brought here today to defend an argument in relation to the issue associated with a financial matter about which the husband was misguided, and therefore, the wife has been put to considerable expense.  Costs orders are not intended to be punitive.  They are intended to be compensatory.  Under those circumstances, when I take into account the conduct of the parties and the way in which this case has been prepared, the wife cannot be criticised for what she has done. 

5. It was asserted that the wife failed to comply with the order of the court, but I could not make that finding, for the reasons I have already outlined.  In those circumstances, it is fair to say that the husband has been wholly unsuccessful in the proceedings.  As to the quantum of the costs, the wife seeks eight hours on the scale, which is $192.50 per hour, and that comes out to $1540, whereas he has asked for $1520.  It seems to me that that is an appropriate amount, in the circumstances. 

The interim parenting application

1. The husband has filed an application seeking to vary existing orders that were made in May and October 2008.  The nub of those orders was that his time with his daughter, was to be supervised by his sister.  His position today is that he wants that altered so that there is no supervision and that he has his time with the child from 6 o’clock Friday until 6 o’clock Sunday.

2. It is noteworthy that the Senior Registrar made the orders on 2 October 2008 and dismissed all interim applications.  He certainly made an order that provided for things to be done by the husband which would enable him to then make a further application.  That included seeing a psychiatrist.  Dr C is a psychiatrist upon whom the husband relies.  He has attached Dr C’s report to his affidavit.  The report is dated 6 April 2009 and I shall refer to that again in a moment.

3. The starting point is that I am not here sitting to review the decision made by the Senior Registrar.  I am assessing whether there is some new act of fact or circumstance that has arisen since 2 October that would justify me finding that the orders need to be altered for the child’s benefit.  In paragraph 7 of the Senior Registrar’s judgment, he referred to two practical problems and dilemmas.  He said the first was that the child had a strong bond and attachment with her father.  But he then said that Dr E, who had provided the court with a report, had diagnosed the husband as suffering from a psychiatric disorder that was in remission but he thought required treatment.

4. The second thing that the Senior Registrar said was that the current orders had to be continued to be supervised for a variety of reasons, including the fact that there needed to be some precision about changeovers to avoid the parties seeing each other or having any conflict.  That obviously goes to the fact that the child does not need to see her parents in dispute.  The Senior Registrar then said this:

   There is much in factual dispute between the parties.  I have said that previously and it is still the case.  It is not something I can resolve.  I do not test the evidence.  I do not make findings of fact.  That is the role of a Judge.  Unless and until this case gets into the list awaiting allocation to the judicial docket, which can only happen at the conclusion of the interim applications, then the longer it takes for the evidence to be tested.  Thus one of the orders I am going to make today is to bring the interim applications to an end.  That does not mean that in appropriate circumstances either of the parties, or the child lawyer, cannot bring another application.  But it is not intended, as I hope I will make clearly shortly, that such an application be brought until certain things had happened.

   The Senior Registrar then referred to the psychiatrist’s report.  Dr E said that:

   Having interviewed both parties in forensic circumstances it is my opinion that [the husband] does indeed suffer from a serious psychiatric disorder.

   The Senior Registrar then said that it was his view that the husband should not have unsupervised contact with his daughter until such time as he engaged in regular ongoing psychiatric treatment.  What the husband now says is he has done all of that and he relies on the report of Dr C for that purpose.  The Senior Registrar then said this:

   The psychiatric intervention which [the husband] has indicated that he is prepared to undertake is pivotal in this case.  The sooner it is commenced on a regular and ongoing basis, then the sooner it will be that [the child], the court and the parties can all contemplate more usual orders.

   Well, in fact, that is exactly what has happened.  Unfortunately, however, Dr C, who is the consulting psychiatrist for the husband, prepared a report in April which was not provided to the wife’s lawyers until July.  It might have made some difference if more time had been given because it would have enabled the various professionals to have a discussion - so that the two professionals could at least meet and discuss the issues and I would have been provided with some sort of indication as to whether they agreed or whether they agreed to disagree.

5. Dr C says, and it is only by way of a report, he saw the husband on four occasions in January – he says four occasions but he then says five.  Each was for the duration of an hour, between 30 January 2009 and 13 March 2009.  He says that the husband does not suffer from a recurrent mental condition but a situational reaction.  It is much of concern to me that there is a mental condition as there is a situational reaction problem and in respect of that, it is quite clear from reading Dr C’s report, that he says that Dr E and he disagree on the interpretation of certain historical facts.  What the husband says in his affidavit is as follows:

   While I am frustrated by the restrictions placed on me by having supervised access visits, I know that through a demonstration and commitment to these confines, then I may prove beyond doubt that I offer no harm or danger to my daughter.  I believe I have been unfairly labelled as having a psychiatric illness which has been escalated from a medical diagnosed time of depression, which I sought the appropriate professional assistance to assess and accept treatment to overcome and improve the quality of my life.

   He then said:

   The access visits are time restrictive and include travel time which limits the type of activity which we can participate or be involved with.  I believe having extended time unsupervised would have enormous benefits of normality and a greater sense of relaxation.  Further, [the child] has not had the opportunity of having contact with her paternal grandparents or participating in immediate family birthday parties of gatherings. 

1. All of those matters relate to how the husband sees his time with the child but what I am not entirely clear about is just how the child deals with all of those issues.  What I have is a report attached to an affidavit of the supervisor, who happens to be the husband’s sister.  The husband’s sister says that she has undertaken the supervision at all times.  She says that the husband has never behaved inappropriately.  She says that the child has never been distressed during the supervised access time with her father.  I am not surprised about that because that is why the supervisor was there.  She says that the child has never been returned to the applicant’s care during the supervised access visit.  That may also be because of the fact that the husband’s sister was there.  The husband’s sister then set out in voluminous documents, pages of her notes, including the period prior to October 2008.

2. One of the things that the Full Court said in Goode & Goode (2006) FLC 93-286 as that the 2006 amendments to the Act had altered the view that the law had traditionally taken, in relation to the previous Full Court decision in Cowling (1998) FLC 92-801. There was now a view that the Court had to follow the legislative path. That was really looking at the question of equal shared parental responsibility and the consequences that flowed from a finding of that. Section 61DA, however, provides that if I was not satisfied on the basis of the material in an interim hearing to make an equal shared parental responsibility order, then the presumption was rebutted. In this case, having regard to all of the matters that I have heard, I could not follow that pathway and start with an order that the parties have equal time and so forth. And in any event, that is not what the husband is seeking.

3. Ultimately, therefore, the provisions of ss 60CA and 60CC apply. The Act requires that any decision I make in respect of the child must be in her best interests. She is a very young and very vulnerable child. She has not had the advantage of having unsupervised time with her father. I do not know, at this stage, whether or not all of the time that she has spent with her father is in fact happy as a result of her father and their relationship or, in fact, because of the presence of the husband’s sister. Those are the matters that need to be tested.

4. On the basis of the evidence before me, I do not know enough about the relationship between father and child.  I know nothing about the husband’s capacity as a parent because he has not set that out in his affidavit.  I know nothing about the views of each of the parties in respect of their responsibilities as parents, vis-à-vis the other.  In those circumstances, it seems to me that based on the material that the husband has provided, the only change in circumstances subsequent to the decision of 2 October 2008 is the fact that he has provided a report from Dr C.

5. My perception of Dr C’s evidence is that he disagrees with Dr E.  The extent of that disagreement troubles me.  I do not understand exactly what each of them would now say if they were sitting here today.  On that basis, particularly having regard to the fact that there is a trial pending in less than a month’s time, where all of these issues can be discussed, it seems to me that it is not appropriate for me to revisit the orders of 2 October 2008.  In those circumstances, the application will be dismissed.

The costs application on the parenting issue

1. I am not going to make an order of costs in respect of this application, and I do that on the basis that, as I earlier set out, there has to be circumstances justifying a departure from the rule.  This is one of those cases where the husband seems to have diligently followed what was said by the Senior Registrar in October.  The dilemma I am faced with is that the evidence is in conflict albeit that the evidence that the husband has presented is limited to what Dr C said. On that basis, whilst it might have been a reasonable application in some circumstances, I do not think that I could grant an order for costs in this case.  So the application for costs will be refused by the wife. 

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  31 August 2009