FENNING & FENNING

[2015] FamCA 1168

FAMILY COURT OF AUSTRALIA

FENNING & FENNING [2015] FamCA 1168

FAMILY LAW – CHILDREN – CONTRAVENTION – Where the mother alleges various contraventions by the father – Where it was found that the father had reasonable grounds for the contravention – Where it was found that one of the Orders allegedly contravened had been varied upon the agreement of the parties – Application dismissed.

Family Law Act 1975 (Cth) s 70NBA

APPLICANT: Ms Fenning

RESPONDENT: Mr Fenning

INDEPENDENT CHILDREN’S LAWYER: Phillip A Wilkins & Associates

FILE NUMBER: SYC 74 of 2014

DATE DELIVERED: 7 July 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 25 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weaver

SOLICITOR FOR THE APPLICANT: Mahony Family Lawyers

SOLICITOR FOR THE RESPONDENT: Not applicable – In person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Wilkins

Orders

1. That the Contravention Application filed by the mother, Ms Fenning, on 30 January 2015 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fenning & Fenning 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: SYC 74 of 2014

Ms Fenning

Applicant

And

Mr Fenning

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. Before the Court is a Contravention Application filed by the mother, Ms Fenning, on 30 January 2015.  By that application, the mother alleges the father has contravened specifically numbered parenting orders made by the Court on 31 July 2014.

2. The father, Mr Fenning, opposes the application.

3. On 4 May 2015, the application of the mother was listed for hearing before me. The application contains multiple allegations of contravention of the subject Orders. In order to contain the hearing to a manageable length, I ordered that the mother select three of the alleged contraventions and proceed on those three items. The mother made her selection and, on 4 May 2015, the Orders made on 31 July 2014 in the Federal Circuit Court were noted as registered in this Court by the filing of those Orders. The father was then charged as follows:

   You did contravene the Orders of the Federal Circuit Court made 31 July 2014 in that you did:

   1.   On 31 August 2014, you did interfere with the exercise or performance of any of the powers, duties, or responsibilities that the mother had under the Orders of the court made 31 July 2014, in that you did remove the children from her care on that day.

   2.   On 24 October 2014, you interfered with the exercise or performance of any of the powers, duties, or responsibilities that the mother had under the Orders of the court made 31 July 2014, in that you did remove the children from their school, thereby making it impossible for the mother to collect them at the conclusion of the school day.

   4.   Following further discussion in Court, the mother chose to proceed with only the two charges set out above.

4. The matter was adjourned then to 25 June 2015 in order to permit the father to file his evidence.

Evidence

The charge in relation to the alleged contravention on 31 August 2014

1. On 25 June 2015, when the matter was listed for hearing, the mother was represented by counsel and the father was unrepresented. The father relied on his affidavit sworn 20 June 2015. The father conceded that, on 31 August 2014, pursuant to the Orders made 31 July 2014, the children B (born in 1999) (“B”) and C (born in 2003) (“C”) were required to be in the care of the mother. At that time, B was fourteen years of age and C was eleven years of age.

2. The father said in his evidence that the children were with the mother on 31 August 2014 (a Sunday) and were due to remain in her care until the following Tuesday.

3. At about 2.00 pm on 31 August 2014, the father received a phone call from B. He said she told him: “Dad could you please come and get me? I have been arguing with Mum. I don’t want to be here anymore. Come and get me.” The father said he asked B what was wrong; however, the phone call was terminated before she could answer.

4. The father went to the mother’s residence following that call. When he arrived, he saw that C was standing on a balcony. The mother’s residence is on the third floor of a building. In that building, there is a security door on the ground floor. The father approached the security door and he observed C come out of the door and run to where he was. He observed she was shaking and appeared frightened and upset. She then moved to where the father’s car was parked. The father accompanied her to the car and then returned to the mother’s residence. As he approached the residence, he observed the mother and B leaving the security door area. The mother was blocking the exit so that B could not leave. The father could hear them talking. He heard B say to the mother “Calm down”. The father observed the mother appeared to be very angry. He heard and observed the continuation of what he described as an argument between the mother and B for a short time. Thereafter, the mother allowed B to leave the security door area. The father heard the mother say to B at that time “There is going to be big trouble”. She then said “Go, girls, go”. She also said “Go [Mr Fenning]”. B was observed by the father to be shaking and upset. Both girls said to the father words to the effect “Go, dad. Let’s get out of here.”

5. When the father returned to his home, he was able to speak with the children. B told him that she had written an email to the mother, on 29  August  2014, telling the mother she was unhappy with the mother and that she was going to stay with her father. B provided a copy of that email to the father. C told the father that she was “sick and tired of the fighting and arguing and she was frightened of what was going to happen”. C told the father that she observed B and the mother in a room arguing. C said she was outside the room but could hear what was being said.

11.The father told the children they were breaking the court orders. The father formed the opinion at that time that the children were very frightened and distraught. He was extremely concerned for their safety, based upon the observations he had made of the mother’s appearance of anger.

12.As stated earlier, the children were to have been in the mother’s care until the following Tuesday. The children attended school on Monday and after school the father collected them and delivered to the mother’s residence. In so doing, the father only created a contravention for so long was necessary and for so long as he believed it was required for their safety.

The charge in relation to the alleged contravention on 24 October 2014

13.In relation to the contravention said to have occurred on 24 October 2014, this contravention relates to when the mother’s time with the children on Fridays (when it is her weekend) is to commence.

14.The court orders clearly state that the mother’s time with the children is to commence with: “4. The children shall be picked up after school by the party with whom they will be spending time that night.” However the father says that on 31 July 2014 there was an email exchange between him and the mother, which he included as an annexure to his affidavit. That email is from the mother and stated that the children were to be dropped off at her residence at 5.00 pm. That arrangement was acceded to by the father and thereafter, for some time, that is how the mother’s time with the children commenced. The father told the Court that he understood that the Orders had been varied by consent by the mother’s email and by the acceptance of same by the father who complied with her request.

15.There is no issue that, on 24 October 2014, the children did go into the care of the mother; however, that occurred at 5.00 pm when the father delivered the children to her.

16.The aforementioned evidence was provided by the father orally. He was then cross-examined.

17.The cross-examination addressed some matters which were not directly the subject of the Contravention application but which I nonetheless permitted because it demonstrated the extent of the conflict between the parents which has existed at least since the subject orders were made. None of the cross-examination and the answers provided by the father caused me to question the truthfulness of the evidence given by the father as set out by me herein.

Submissions

18.Each of the mother and father addressed the Court. The mother submitted that, in relation to the contravention alleged to have occurred on 31 August 2014, the Court should find that the father had not established that he had a reasonable excuse for contravening the Order.

19.It was further submitted that the request by email made of the father by the mother on 31 July 2014 did not constitute a change of the Orders by consent. It was conceded that paragraph 6 of the Orders was in these terms: “the parties can make adjustments or amendments to these orders by written agreement.”

Conclusion on Contravention Applications

Alleged contravention on 31 August 2014

20.There is no issue that, on 31 August 2014, the father removed the children from the mother’s care at a time when they were to be in her care pursuant to the Orders of 31 July 2014. I am satisfied that, at the time the father removed the children, he had a reasonable excuse for doing so. I am satisfied that, at the time the father removed the children, he held the belief on reasonable grounds that the action was necessary to protect the health of each of the two children.

21.As stated earlier, although having removed the children in the afternoon of Sunday 31 August 2014, the father returned the children to the mother’s care following school on Monday 1 September 2014. As such, the father ensured that the contravention did not proceed beyond what was necessary to protect the health of the children.

22.In relation to the contravention alleged to have occurred on 24 October 2014, I find that the parties did agree to a variation of the Orders on the very day they were made, namely 31 July 2014. That variation may have been unintended by the mother by her action of sending an email to the father requesting the children be delivered at 5.00 pm, when the Order provided that her time with the children was to commence after school. That error was compounded by the mother permitting the arrangement to continue until 24 October 2014, when she took the action to require the commencement of her time pursuant to the original Order. In my view, that subject Order no longer was operative and the action required by the mother was to secure the father’s consent in writing to return to the wording of the original Order. That did not occur.

23.As a consequence of the above, I conclude that the mother’s Application for Contravention filed 30 January 2015 has failed and should be dismissed. Ultimately I will make that order.

24.Section 70NBA of the Family Law Act 1975 (Cth) permits a court, having jurisdiction under the Act, to vary a primary parenting order at a time that proceedings are before the court alleging contravention of that order. In this case, some action needs to take place in order to resolve an unsatisfactory ongoing circumstance for the subject children.

1. The Court has been told that the children have not spent time with their mother now for a considerable period. The relationship between the children and the mother is strained. On 4 May 2015, I appointed an Independent Children's Lawyer to act for the children with a view to being able to assist the Court in determining what variations should be made, if any, to the Orders of 31 July 2014. The Independent Children's Lawyer appeared before the Court on 25 June 2015 and advised that he had spoken with the children. He advised that the children are most resistant to spending time with the mother. He urged the Court to make an order which would facilitate mediation and/or counselling between the parents and the children. He submitted that an order for therapy should be made in relation to the children. The Independent Children's Lawyer supported a minute of order which was marked as Exhibit A. That minute provided for the parties to attend upon family therapy with a therapist to be agreed to or nominated by the Independent Children's Lawyer. I made such an order on 25 June 2015. I otherwise granted liberty to each party, and the Independent Children's Lawyer, to relist the matter on short notice and I noted that otherwise the Independent Children's Lawyer is to cause the matter to be relisted once there has been progress with therapy, or otherwise, in circumstances where he considers further orders may be required.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 7 July 2015.

Associate: 

Date: 7 July 2015