Emerwill and Montague

[2007] FamCA 1454

FAMILY COURT OF AUSTRALIA

EMERWILL & MONTAGUE [2007] FamCA 1454

FAMILY LAW – CONTRAVENTIONS – proved – reasonable excuse – parenting orders made

Family Law Act 1975 (Cth)

APPLICANT: Mr Emerwill

RESPONDENT: Ms Montague

FILE NUMBER: MLC 12421 of 2007

DATE DELIVERED: 29 November 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 29 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms P A Byrnes

SOLICITOR FOR THE APPLICANT: Moores Legal

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. That until 17 December, 2007 (that being the day on which the father’s application in a case filed 15 November, 2007 is listed in the Senior Registrar’s duty list at 9:45 am.) the orders made on 28 December, 2006 which provide for the father to spend time and communicate with the child T born … April, 1996 be suspended. 

2. That the mother forthwith do all things reasonably necessary to arrange counselling for T through one of the agencies referred to in the letter from the Department of Education and Training to the mother, dated 31 October, 2007 (marked as exhibit “1” in the proceedings) or, in the event none of those agencies can accommodate T, another agency, and T commence such counselling as soon as practicable. 

3. That until further order, at the discretion of the counsellor, the mother and father may be involved in the counselling process but may only attend a counselling session with T at the express invitation of the counsellor, and the mother may attend to deliver and collect T and provide all formal intake information required by the agency. 

4. That as soon as practicable the mother advise the solicitors for the father, in writing, of the name and address of the counsellor and if the counsellor so requests, each party may provide him or her with copies of affidavits filed in these proceedings and the judgment delivered this day. 

5. That the application for contravention filed by the father on 15 November, 2007 be otherwise dismissed and without limiting the generality of this order, the court notes that :

   (a)the father withdrew the contravention which was alleged to have occurred on 8 August, 2007;  and

   (b)the court found the alleged contravention on 11 October, 2007 not proven. 

6. That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.

7. That the reasons for judgment this day be transcribed and that copies be made available to the parties.

8. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

AND THE COURT NOTES

1. That it confirmed that the orders made on 28 December, 2006 which relate to the time and communication the child O born … January, 2000 has with the father, remain in full force and effect. 

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12421 of 2007

MR EMERWILL

Applicant

And

MS MONTAGUE  

Respondent

REASONS FOR JUDGMENT

1. Before the court is an application filed by the father seeking that the mother be dealt with for contravening parenting orders made on 28 December, 2006 in this court.

Background

1. The parties' relationship began in about 1994; they separated in February 2003.  They have two children.  T was born in April 1996 and O was born in January 2000.  Since separation the father has married Mrs Emerwill.  She has a child, S, from an earlier relationship born in April 2001.  Together they have a daughter, N, who is 15 months old.  The mother has re-partnered with Mr R; they have a daughter, E, who is one.

2. The application for the mother to be dealt with for contravention arose from the fact that, since 1 September 2007, the father has had no contact at all with the child T.  Pursuant to the current parenting orders, he should be having regular time with his son.  Those orders also contain injunctions enjoining the parties from denigrating the other in the presence or hearing of the children, an order the father alleges the mother has contravened.

Evidence

1. The father relied on an affidavit sworn by him and an affidavit sworn by his wife, Mrs Emerwill.  The mother gave evidence, as did her father, Mr Montague, and her partner Mr. R.

2. I am satisfied all of the witnesses tried to tell the truth, as he or she now sees it.  Some, more than others, see it through the prism of unhappiness about events over a long time.  The hearing was short but the court is asked to make sense of a conflict which is obviously suffused with great passion and hostility, and bitterly disputed accounts of events.  The hostility between the parties has been adverted to by each of them and was apparent in their evidence. 

3. Simple illustrations suffice to demonstrate this.  The mother candidly agreed that she told the children that their parents are not together because of interventions by Mrs Emerwill; that is, she said Mrs Emerwill was responsible for the fact they separated.  She justified that by an assertion that children are entitled to be told the truth and she is not prepared to lie to her children.

4. Parents, as I said to her in the course of her cross-examination, must learn what not to say to their children, as well as what to say to them.  It is not a question of truth or lies.  It is a question of parental responsibility, of not burdening children with matters which should remain in the adult domain. 

5. Similarly, the father's evidence of his response to offers for him to spend time with T (by coming to watch him play cricket or to play golf with him and his grandfather) was illustrative of a focus on his entitlement rather than on T’s best interests.  I am satisfied an attempt by the father, made in good faith, to ensure some contact between father and son, was rebuffed and ignored.  The evidence called by the mother on this point was far more compelling than the father’s account.

6. Another illustration is the letter that was written by T to his father.  It is a very sad letter.  The language and concepts are reasonably advanced for a child of T's age.  The mother conceded that she knew he was writing the letter, but denies other input.  It appears she did nothing to dissuade T from that course.  She said T hears “what is going on”.  It is her responsibility, as a parent, to stop him from hearing “what is going on” where that is likely to be detrimental to his emotional well-being. 

7. Further, the filing of this application for contravention, at the same time as the father filed an application seeking to change T’s residence, was not conducive to the form of mediated outcome which, he asserted, he would like to achieve.  The children will almost certainly know that their mother is back at court, and here because of an allegation she has breached the orders.  That is likely to exacerbate T's anxiety.  These examples serve to illustrate the depth of the tensions between the parties. 

8. At the heart of the contravention application is an incident at the father's home, in or about July or August 2007.  Contraventions alleged relate to a failure to provide T to spend time with his father on the weekends commencing on 10 August, 14 September 12 October and 2 November, the time commencing on 2 November being an extended weekend with his father, including Melbourne Cup day.  It is alleged she breached the orders by failing to provide T for time with his father in the September school holidays (between 21 and 29 September) and time on or around the father's birthday, in October.  There is also one count of an alleged breach of the injunction relating to non‑denigration. 

9. Evidence of the incident in July or August has been given by one protagonist involved in it, being Mrs. Emerwill. Everyone else called can only say what he or she was told about it.  I have no doubt that T reported to his mother, his grandfather and his defacto stepfather that he was hit on the side of the head by his stepmother, Mrs. Emerwill. Mrs. Emerwill demonstrated (in the witness box) her version of events.  Mrs. Emerwill and T were sitting on different sides of a kitchen bench.  T kept turning around to watch television behind him, instead of eating his dinner.  She was keen for him to finish eating so he could be returned home to his mother.  He having ignored admonitions to concentrate on his dinner, rather than on the television, she lent across the bench, with her left arm fully extended and with an open left hand, according to her, “tapped” T on the side of the head.  From her perspective it was a tap, which he found amusing. 

10. It is more probable than not that T did not genuinely find the “tap” amusing.  Already overly embroiled in the parental conflict, and already ambivalent about his response to his stepmother (an ambivalence borne of his knowledge of his mother's hurt after separation) when he got home, he reacted strongly.  He became very upset.  He told the people to whom I have adverted he was hit by Mrs. Emerwill, and it is likely that, at least with some of them, the complaint fell on willing ears.  The Department of Human Services became involved.  Unsurprisingly, they took the matter no further.  It is not an allegation which one would expect to raise serious protective concerns in a department which deals with children at very significant risk of extreme physical harm.

11. There was then a period when T refused to go to see his father. This encompassed the first of the alleged contravention periods.  Considerable efforts were made to persuade him to return.  In retrospect, it is very unfortunate that, the first time he returned to his father’s home, the incident became the focus of what might be called a family conference imposed on him. Meeting with his father and stepmother, he was required to discuss issues such as why he said his stepmother had hit him, why he was angry or ambivalent about her, and what could be done to encourage him to come more often to spend time with his father. The father candidly conceded that T did not want to take part in the discussion or talk about those issues.  However, the father persisted.  In his view, it was a “family matter” and T had to discuss these matters with him and his wife. 

12. T's stepmother, Mrs Emerwill, candidly conceded that T was crying in the course of the discussion, as he told his mother.  She said she was crying, too.  The father said he did not recall T crying, a surprising failure of memory.  It is impossible to determine now, on the evidence before me, whether T was crying because he felt pressured at being asked to withdraw a complaint which he thought was valid; because he was relieved that some of the problems were out in the open and was crying with relief; or whether he was just a little boy, out of his depth, unable to cope with the continuing hostility between his parents and unable to balance competing loyalties to loved parents. 

13. The father has conceded T's reluctance to come on contact, and to communicate with him.  He gave evidence of speaking with the child O on the phone, of O trying to get her brother to come to the phone, and of him hearing T refuse to speak to him.  There was a day on which T left school at lunchtime and left school again, very precipitously, at the end of the school day in circumstances which raise an inference he was avoiding his father and avoiding having to give an explanation for that.  

14. There was compelling evidence from the paternal grandfather of T’s state on the day of birthday celebrations which have been referred to in much of the evidence.  There is also evidence of T’s willingness, for example, to play golf with his father and grandfather, but only as long as he could go home with his grandfather. 

15. I must say the evidence about the CAMHS counselling is puzzling.  Counselling was organised, as I understand the evidence, by T’s parents, at the suggestion of the school.  There was one session between both parents, which the father described as, "descending into a bit of a barney".  The mother agreed with that description.  Given the apparent incapacity of the counsellor (whoever she was, and whatever her role) to contain that parental animosity, it seems inexplicable to then schedule a session with the warring parents, their current partners and the children.  One might reasonably expect such a session to be at least as volatile as the one between the parents; it would have the potential to emulate an encounter group from an earlier age.  There is no reason to doubt the bona fides of the parties and I am certainly not critical of the father for wanting to continue with counselling and being keen to arrange effective counselling or mediation.  However, I do have significant doubts about the proposed session and am not surprised the mother, doubting its capacity to assist T, declined to attend. 

16. There is no reason to doubt the mother's evidence that the counsellor said to her that there was nothing she could do until the parents sorted out their problems.  That is nothing more than the expressed frustration of a counsellor, faced with parents who are perceived as being unable to focus on their children, preferring to dwell on their criticisms of each other.  It should be said that this court sees many successful counselling interventions with children whose parents are at least as unaligned as these, but they must be sensitively handled so they ameliorate, rather than increase, a child’s anxiety. 

17. I do have regard to the evidence of the mother of T’s distress since the family conference at his father's home, and of his vehement refusal to attend since that time.  The mother's evidence was that she has tried to get T to go; she has told him that a court order requires it, and he must go.  Her father acted as an intermediary for some time prior to the “tapping” incident.  The mother has certainly placed reliance on T’s views.

18. I do not propose to say anything at length about the law, which was cogently summarised by counsel for the father. A person is taken to have contravened an order affecting children if that person has intentionally failed to comply with the order, or made no reasonable attempt to comply with the order. A person may, having been found to contravene an order, be taken to have had, for the purpose of the legislation, a reasonable excuse for contravening it. Circumstances which may constitute a reasonable excuse are set out in s.70NAE of the Family Law Act 1975. The relevant one in this case is s.70NAE(5). In relation to an order dealing with whom a child is to spend time, the person is taken to have had a reasonable excuse if he or she 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 a child) and the period during which the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to. That defence is relevant to all the contraventions that relate to T spending time with his father.

19. I should perhaps say that the standard of proof in the case is the balance of probabilities, not the criminal standard of beyond reasonable doubt. 

20. As counsel said, an obligation is cast on the resident parent to take the necessary steps to make a child available; a positive application of parental responsibility is called for. 

21. In relation to the count relating to the non-denigration order, I am not satisfied the evidence establishes a contravention.  The mother and Mr R candidly concede saying “not nice things” about the father.  The mother's father, whom I accept as an absolutely truthful witness, agreed he had heard his daughter say things critical of the father and placing responsibility for the break up of her relationship with the children's father at the door of his new wife.  But to succeed the father must establish that on 11 October, 2007 the injunction was breached, by specific behaviour.  The evidence relied on by the father (that O said that her mother said something not nice) does not get to the threshold, in my view.  That contravention is not proved. 

22. In respect of the other alleged contraventions, I am satisfied it is more probable than not that the orders were contravened.  It is common ground that T did not go.  It was not an accident. The mother knew T was not with O.  She knew she had an obligation to send him.  The question then is whether she had a reasonable excuse. Relevant to that are those matters I have adverted to, including attempts to get T to go, the foundation of her concerns, T’s response to the family conference and the way the involvement of DHS was dealt with in his father’s home.  Balancing the evidence, bearing in mind the relevant standard of proof, I find the mother did have a reasonable excuse for the contraventions. 

23. The Act provides that even where the court finds a reasonable excuse, the court can make a parenting order.  A parenting order is defined to include the process to be used for resolving disputes about the terms or operation of an order, and any other aspect of the care, welfare or development of the children or of parental responsibility.  That is set out in s.70NBA and I do propose to make a number of parenting orders. This case is back before the court on 17 December, that being the return date of the father's application for a change of residence.  I propose to make it absolutely clear that all orders in respect of O remain in full force and effect, and she is to continue to spend time with the father, pursuant to those orders.

24. As a pragmatic response, I propose to order, until 17 December or further order, that the current order for the father's time with T be suspended.  There is no point in allowing a situation to give rise to the potential for another contravention application. Neither parent should assume that suspension will necessarily continue past 17 December; that will be a matter to be determined on the evidence before the court.

25. I do propose to order that the mother forthwith do all the things reasonably necessary to arrange counselling for T, through one of the services described in the letter from the Department of Education and Training, dated 31 October 2007, and for T to commence counselling as soon as practicable. The mother should realise that when the matter comes back to court, she will be asked what she has done about that; she must make a valiant effort to arrange counselling. The court is very aware of the problems people face in obtaining counselling for children but this must be a priority, particularly having regard to the grandfather’s evidence of the effect this is having on T.

26. At the direction of the counsellor, the mother and father may be involved in the counselling process, but may only attend a counselling session at the express invitation of the counsellor.  Obviously, the mother can attend to deliver and collect T.  I will not order the filing of a response by the mother or affidavits. If she wants to be heard, she must file those documents. 

27. The contravention application is otherwise dismissed.  I will order that these reasons for judgment transcribed. 

I certify that the preceding 30 paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Brown AM.

Associate:      29 November 2007