Feranti and Connor
[2007] FamCA 1446
•26 October 2007
FAMILY COURT OF AUSTRALIA
| FERANTI & CONNOR | [2007] FamCA 1446 |
| FAMILY LAW – CONTRAVENTION PROCEEDINGS – CHILD ORDERS |
| APPLICANT: | Mr Feranti |
| RESPONDENT: | Ms Connor |
| FILE NUMBER: | MLF | 10368 | of | 1994 |
| DATE DELIVERED: | 26 October 2007 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | WATT J |
| HEARING DATE: | 29, 30 June, 1, 26 July, 3, 4 October 2005, 3, 4 August 2006 |
REPRESENTATION
| FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Wood |
| SOLICITOR FOR THE RESPONDENT: | Peter Falconer & Associates |
Orders
The further hearing of the father’s application herein is adjourned to 12 November 2007 at 10.00am before me and all other pending applications are adjourned to that date for mention.
IT IS NOTED that publication of this judgment under the pseudonym Feranti v Connor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLF 10368 of 2004
| MR FERANTI |
Applicant
And
| MS CONNOR |
Respondent
REASONS FOR JUDGMENT
CONTRAVENTION OF CHILD ORDERS
Introduction
These parties have a long history of litigation in this court that I will not recite. The reported and unreported decisions of this court, both at first instance and on appeal, include a number of judgments made in proceedings between these parties, primarily in relation to parenting orders and child support issues. My first involvement in the case was in 2000 when a review of orders made by a judicial registrar came before me. In November 2004, I delivered judgment in relation to an application by the father for the discharge of an order restraining him from issuing further proceedings without leave of the court: see my judgment in F v C [2004] FamCA 1211. In discharging the restraining order, I ordered that any further proceedings between these parties were to be listed before me, if at all practicable, and so when the father filed his contravention application, it was listed before me.
Orders of Brown J made February 2004 and subsequent contravention proceedings
For the purposes of the parts of the father’s contravention application that I am dealing with here, the only aspect of the parties’ earlier litigation that I consider needs to be mentioned to introduce this judgment is the judgment of Brown J on 2 February 2004 whereby her Honour permitted the mother to change the usual place of residence of the child T born in March 1995 from the suburbs of Melbourne to South Australia. Having given the mother permission to relocate, her Honour put in place a suite of orders that provided for the child to spend time and communicate with the father. It should be mentioned at this point that the father did not participate in the hearing before Brown J in circumstances that are set out in the judgment of the Full Court to which I will make reference shortly.
Those orders were the subject of further proceedings before her Honour on 16 February 2004, when her Honour heard an application by the father to stay her Honour’s orders pending the hearing of the father’s appeal against them.
At that stay hearing, it emerged that whereas her Honour’s new orders for communication and time to be spent with the father took effect immediately, that was based on her Honour’s erroneous belief that the mother was moving with the child to take up residence in South Australia immediately following the hearing. In fact the mother was not doing so and her Honour stayed the operation of the new orders until the mother gave notice that the move was imminent, and revived earlier orders that provided for the child to spend time with the father, until the move occurred. The orders were not otherwise stayed.
The father filed a Form 18 Application – Contravention on 14 February 2005 and he amended this application by filing an amended Application – Contravention on 26 April 2005. All references herein to the father’s application are to that later document.
The father’s appeal from the orders of Brown J was dismissed by the Full Court of this court in a judgment published on 6 July 2005: [2005] FamCA 573. The dismissal of the appeal enabled the contravention proceedings to proceed, and the contraventions that remain to be considered in these proceedings all relate to the orders of Brown J made in February 2004.
Paragraphs 4 to 8 of Part D of the father’s application contained a significant number of allegations of contraventions of orders predating Brown J’s orders. The mother sought summary dismissal of those allegations, and on 30 June 2005, having heard submissions on 29 and 30 June, I indicated that I would make the order for summary dismissal sought by the mother as part of my final orders disposing of these proceedings. The matter continued on 1 July, 26 July, 3 and 4 October 2005. At that point in the proceedings the father’s evidence had concluded but the hearing was clearly not going to be completed in the time then allocated to it.
On 4 October 2005, I made an order for the hearing to resume on 13 and 14 February 2006 as a part-heard matter. In mid-January 2006, the solicitors for the mother made application for vacation of the hearing fixed for 13 and 14 February 2006 because of the mother’s ongoing medical treatment. That application was opposed and was heard by me on 24 January 2006 when I vacated the hearing dates fixed for 13 and 14 February 2006 on the basis that I was satisfied that the mother required medical treatment that would make it difficult for her to participate in the resumed hearing. It was not clear at that stage, however, just how long an adjournment was necessary to enable the treatment to be undertaken and completed, and I gave directions for the provision of evidence on this point. On 1 March 2006, having regard to the evidence then before me, I relisted the matter for the hearing to resume on 3 and 4 August 2006. This allowed time for the mother to undergo treatment in accordance with the recommendations of her treating oncologist at the Queen Elizabeth Hospital in Adelaide.
On 3 August 2006 the part-heard hearing of the father’s amended contravention application resumed. The resumed hearing dealt with the contraventions alleged in paragraphs 1, 2 and 3 of Part D of the father’s application being the allegations that were not subject to summary dismissal. The hearing concluded on 4 August 2006 when I reserved my decision.
The relevant law
The law is to be found in Division 13A of Part VII of the Family Law Act 1975. At the time of the alleged contraventions the relevant provisions were in these terms, and remain substantially unchanged by the amendments that came into effect on 1 July 2006.
Section 70NC (now section 70NAC)
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; or
(b)otherwise- he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
Section 70NE (now section 70NAE)
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, [my emphasis] the circumstances set out in subsections (1A), (2), (3) and (4).
….
Section 70NEA (now section 70NEA)
The standard of proof to be applied in determining, in proceedings under this Division, whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention is proof on the balance of probabilities.
Affidavits relied on
Father
Father’s affidavit filed 26 April 2005;
Father’s affidavit filed 17 August 2005.
Mother
Mother’s affidavit filed 1 June 2005;
Mother’s affidavit filed 8 September 2005.
Exhibits relevant to Telephone Calls
W1 – Schedule of telephone contact and supporting records
W3 – Primus telephone account statement for No … from 10.5.2004 to 27.5.2004
W4 – Schedule comparing mother’s telephone records with father’s recording records in respect of alleged contraventions
W5 – Mother’s primus telephone account showing a call on 30.8.2006 to a Sydney number
H1 – Schedule of telephone calls between father and child from 24.3.2005 to 1.6.2005
H2 – Summary of recorded conversations prepared by father in relation to contravention proceedings
The father records his conversations with his daughter and he keeps a list of his contact periods. In a pre-trial direction, I directed that the father provide the mother with CD recordings of those conversations.
The mother elected to give evidence about the alleged contraventions on the basis that she had a reasonable excuse for any contraventions that might be found. Much of the cross-examination of the father by Mr Wood of counsel for the mother was focused on the ‘reasonable excuse’ issue. In addition to the matters raised specifically by the mother in respect of the contraventions alleged, there were other more general matters that Mr Wood urged me to take into account when considering the allegations of contraventions. These are set out in paragraphs 125 to 132 below.
Alleged contraventions of orders relating to telephone calls
Paragraph 1 of Part D of the father’s application alleges breaches of the holiday travel notice provisions of Brown J’s order. I will turn to those allegations after considering paragraphs 2 and 3, which allege breaches of the order for telephone communication, or contact, between the child and the father.
Telephone contact orders of Justice Brown made 2 February 2004
Paragraph 2 of her Honour’s orders permitted the mother to change the place of residence of the child of the marriage born in March 1995 from the suburbs of Melbourne to the State of South Australia. Paragraph 3 provided:
(3)That subject to paragraph (4) hereof the husband have contact with [the child] as follows:
…
(c)by telephone as follows:
(i)during school terms on each Wednesday between 7.00pm and 8.00pm; and
(ii)in the event the husband does not have contact with [the child] on any of these days, on each of Father’s Day, the husband’s birthday and [the child’s] birthday, between the hours of 7.00pm and 8.00pm.”
PROVIDED THAT:
(A)telephone contact pursuant to this order be initiated by [the child] telephoning the husband; and
(B)the husband keeping the wife informed of a telephone number to be used by [the child] to initiate the telephone contact.
It can be seen that (A) requires the child to telephone her father, and it could be argued that the mother was not breaching anything if the child failed to make a call. No such defence was raised, however, on behalf of the mother, and the hearing proceeded on the basis that implicit in the order was an obligation on the mother to ensure that the child made the calls.
It is obvious from a reading of her Honour’s judgment that her Honour believed that the mother’s move to South Australia was imminent and that new contact orders needed to be made. The previous contact orders were discharged. The new orders for contact follow immediately after the order permitting the mother to relocate to South Australia.
It is also worth noting at this point that the orders do not make clear whether the times specified in the order for telephone contact to take place are expressed with reference to the Eastern or Central time zone, the father’s place of residence being in the Eastern time Zone, and the mother and the child residing in the Central Time Zone: (see paragraph 77 of this judgment).
Alleged contraventions – father’s amended application filed 26 April 2006 – Part D paragraph 2
Paragraph 2 of Part D of the father’s amended application asserts contravention of:
Paragraph 3(c)(i) and 3(c)(ii) of the orders made before Brown J on 2 February 2004.
On the dates listed below, the respondent failed to provided telephone contact with the child [T], born […] March 1995, in accordance with those orders. The respondent made no attempt to comply with the requirements of the order, and in fact deliberately prevented the child from making contact with the father
The father then lists in sub-paragraphs (a) to (u) the dates that he alleges there has been a contravention. I will deal with each one in turn.
(a)4 February 2004;
(b)11 February 2004
Under the earlier contact orders (made by Guest J on 3 December 1999) there was no provision for telephone contact between the father and the child. The first orders which provided for telephone contact were made by Justice Brown on 2 February 2004. As previously noted, the father did not appear at that hearing. The mother agreed that the child did not telephone the father on Wednesday 4 February 2004 nor on Wednesday 11 February 2004. The mother’s evidence was that she had understood the orders made on 2 February 2004, and although she knew that the previous contact orders had been discharged, she and the child had not moved to South Australia by 4 February 2004 and she had assumed that the operation of the new orders commenced when she moved, and the earlier orders remained in force until she moved. She therefore continued to abide by the previous orders which she considered applied while she and the child were still living in Melbourne. That the mother believed this is confirmed the father’s evidence that the child telephoned him from school on his next contact weekend after 2 February (the date on which the orders for weekend contact were discharged) to see why he had not collected her for weekend contact.
At the hearing before Brown J on 16 February 2004 the father sought and was granted leave by Justice Brown to seek an order that the orders of 2 February 2004 be stayed pending determination of his appeal. On 16 February 2004 her Honour did stay some orders and otherwise dismissed the application. Paragraphs 17 and 18 of her Honour’s judgment of 16 February are pertinent to the alleged contraventions that I am presently considering:
17.Balancing all factors, I am not satisfied that all the orders made by me should not be stayed. The balance of convenience favours the respondent. The orders were posited on what I (as it has transpired, wrongly) assumed to be an immediate departure by [the mother] and [the child]. In retrospect, that was foolish, having regard to the need for her to give notice to her current employer. There was some contact between [the father] and [the child] last weekend. [The father] has complained that the orders for phone contact made by me have not been complied with. They assumed [the child] would be in South Australia, not [Melbourne]. (my emphasis)
18. In my view, I should make orders which ensure continuity of contact under the old orders in the period prior to the departure. By that I mean contact pursuant to paragraphs 3.1 and 5.1 of the orders made by Guest J. I also propose to order that the wife give the husband seven days’ notice in writing of the day on which [the child] is to move to South Australia. To those extents the orders will be varied. The application for a stay will otherwise be dismissed.
These paragraphs demonstrate that the father had already raised the issue of non-compliance by the mother with her Honour’s order of 2 February 2004 for telephone contact at the hearing on 16 February 2004 – a date that followed the two periods of alleged non-compliance now under consideration - and her Honour had indicated to him that those orders were intended to come into effect when the mother moved to South Australia which the judge had mistakenly thought was to take place immediately. In a sense her Honour dealt with the complaint of the father of non-compliance there and then and explained to him, through the judgment, that the new orders were not intended by her to take effect until the move had occurred. It is clear from the evidence that the mother had acted in good faith to promote contact by continuing to comply with the previous contact orders (although she knew that they were discharged on 2 February) in the period immediately following Brown J’s first order.
In the circumstances, I find that the mother has a reasonable excuse for non-compliance with the order made 2 February 2004 on 4 and 11 February 2004, and Brown J’s comments on 16 February 2004 provided the father with a clear basis for understanding that any non-compliance by the mother arose from a misunderstanding by her Honour of when the new orders would commence operation, which misunderstanding was shared by the mother.
The allegations of contraventions on 4 and 11 February 2004 are dismissed. Mr Wood submitted that the father through this litigation was relentlessly pursuing the mother and was prepared, in this instance , to run totally unmeritorious allegations such as these, even after Brown J’s clear rejection of the father’s complaint to her about the same dates. There is much weight in this submission.
Before proceeding further to consider the alleged contraventions, I will summarise evidence given by the mother in respect of the child’s behaviour in relation to telephone calls and the mother’s encouragement of her to make them. This evidence was relied on in relation to the contraventions alleged in paragraphs 2 and 3 of Part D of the father’s application.
The mother in her affidavit filed 1 June 2005 at paragraph 5.4 states that she encourages the child to make the relevant telephone contact but there are occasions when the child forgets to ring, other times when she refuses to ring, and times when the child is going out and the mother has suggested that the child ring the father either prior to or after the scheduled time. The mother also referred to other telephone calls made by the child to her father outside the scheduled times. In her oral evidence the mother said she encourages the child to ring her father saying words like “Daddy would like to talk to you, to know what you are doing.” If the child says that she does not want to, this can lead to an argument and so now the mother leaves it and tries the next day. She said she often has difficulty with the child not wanting to do something, and the child, on such occasions, can be defiant and become physically violent towards the mother. She therefore has not insisted (on the child making the call) on some occasions and says to the child that they will try on another day. On other occasions when the child has some activity that she wants to attend on the evening when the call should take place, the mother will encourage the child to ring before or after the appointed time.
I should indicate at this stage that I found the mother to be truthful, forthright and willing to make appropriate concessions. Soon after he entered the witness box, the father’s credit was seriously tarnished in that, after extensive questioning, he made what I consider was a wilfully false assertion that the residential address that he provided to me (eventually) was the same as the address that he provided (in a note) to Judge Curtain (as she was then) in the County Court some 10 days earlier. The transcript of his cross-examination by Mr Wood on this point clearly shows the father dissembling at first and finally committing himself to a falsehood. As can be seen from the transcript of a telephone call between him and the child, set out in paragraph 132 below, his lack of truthfulness also pervades his communications with the child, much to her distress. Where there is conflict between the evidence of the mother and that of the father, I prefer the mother’s evidence.
(c) 17 March 2004
In paragraph 5.2 of her affidavit filed 1 June 2005 the mother states:
As to the date referred to in item (c) namely 17th March 2004 I say that I did not insist on [the child] making telephone contact with the husband given that both [the child] and I had just arrived in [South Australia] to take up residence on the 15th March 2004 and [the child] commenced attending her new school on the 16th March 2004 […] and the husband having travelled to [South Australia] and attending [the child’s] school on the 16th March 2004 (the preceding day) unexpectedly and exercising face to face contact with [the child].
In cross-examination the mother restated that there was no telephone call on 17 March 2004 because the father had seen the child the day before. This visit by the father to the child’s school to see the child was itself outside the contact provided by the court orders. I will say more about this later. The mother said that the child had said she did not want to ring him because she had seen him the day before. I accept the mother’s evidence about this. Whilst the contravention is admitted, in my view, the circumstances provide the mother with a reasonable excuse.
(d) 7 April 2004
According to the mother’s telephone records – Exhibit W1 – the child rang her father on Tuesday 6 April 2004 (the day before the due date). They spoke for 45/46 minutes. The father’s notes of telephone calls – Exhibit H2 –confirm this.
The fact that no call took place on the due date is admitted but in circumstances where a call of substantial duration took place a day earlier, I consider that the mother has a reasonable excuse. I also accept as true her evidence about the child’s behaviour in relation to not being willing to call on the due day, and that this has, on this and other occasions, led to telephone calls being made either before or after the appointed date or time or both, but very rarely has no call been made at all.
(e) 5 May 2004
The father has this date as one on which the child did not telephone him. In cross-examination the father was shown the mother’s Primus telephone records which show that on 5 May 2004 at 7.05pm the mobile telephone number 04… was dialled and there was a 16.43 minute telephone call. The father agreed that that was his mobile telephone number. When it was put to him that this was consistent with the fact that on 5 May 2004 he did receive a telephone call, his answer was “It shows there was a call made to the mobile. According to my records I didn’t receive any.” Later, however, the father conceded that a telephone call was made to him on 5 May 2004 and his records were inaccurate: see also paragraph 61 below.
Contravention dismissed.
(f) 26 May 2004
The mother’s evidence was that the child did not ring her father on 26 May 2004. She did ring, however, on 27 May 2004, the following day, at 8.31pm and spoke to him for over 55 minutes: see Exhibits W3 and H2. According to H2 in the father’s Notes column the child told her father “she didn’t call previous night because wasn’t feeling good. Sounds sad at first. Said she didn’t call at 7:00 because she was watching “Big Brother”. Chatty, asks questions.”
The contravention is proved but a reasonable excuse is provided – the child rang the next night and had a long conversation with the father, explained she had not felt well and had not called between the usual times (on 27 May) as she was watching TV.
(g)21 July 2004
The mother agrees that there was no telephone call on that date. In annexure ‘KEC-1’ to the mother’s affidavit filed 1 June 2005 the mother notes in the Comments column “Child refused”. Exhibit H2 records on that on 28 July 2004, the following Wednesday the child telephoned the father and spoke to him for 17 minutes. The father has noted that the child said she did not call last week because she was “..out at dinner..”.
From an examination of Exhibit H2 and annexure ‘KEC-1” to the mother’s affidavit filed 1 June 2005 it is apparent that the child telephoned her father on 7 occasions during June 2004 – on the 5 Wednesdays that occurred that month – 2nd, 9th, 16th, 23rd and 30th and also on Monday 21st and Tuesday 22nd talking to her father for 31 minutes and 45 minutes respectively on those additional nights. In July 2004 the child spend one week’s holiday with the father and telephoned her father on each of the other Wednesday nights in July. Two additional calls have been made in the second half of June, and on all other occasions in July when calls were due. The mother has noted the child as having refused, and I have accepted her evidence that when pushed, the child can become violent towards her mother. The child herself offered the father an explanation the following week, acknowledging that she knew that a call had been missed. In these circumstances, I consider that the mother has provided a reasonable excuse for this contravention.
(h)18 August 2004
Exhibit W1 shows that the child telephoned her father on Tuesday 24 August 2004 for about 40 minutes. The mother has in her “Reason for no telephone call” column “Sick with cold prior week explained in telephone call on 24/08/2004.” In her evidence in chief the mother said that the child had tonsillitis, she had not wanted to ring her father, she went to bed early and slept. The mother said she asked the child to tell her father why she had not rung when she telephoned him the next week, and I accept that this occurred.
Contravention proved but reasonable excuse provided – I accept that the child was unwell and explained this to the father in a subsequent telephone call which was an additional call.
(i) 25 August 2004
The child telephoned the father on her scheduled Wednesday night – 25 August 2004 – and spoke to him for 36-37 minutes (Exhibits W1 and H2). Additionally, the child telephoned her father for short telephone calls on Saturday and Sunday 28 and 29 August 2004.
In cross-examination the father explained that that this allegation of contravention should be in paragraph 3 [of Part D of his application] because his complaint is that it is of short duration, and he said he had set out allegations of contravention based on short duration in paragraph 3. According to the father’s records (Exhibit H1) the 3 telephone calls on 25 August 2004 commenced at 7.30pm (16 minutes) 7.48pm (20 minutes) and 8.11pm (30 seconds) (all SA time).
The evidence showed that on this and other occasions more than one call was made to the father on the same day. The mother explained that under a new telephone contract she has entered into the child rings her father for 20 minutes, then hangs up and rings back again. Under her old plan the mother explained that a one hour telephone call cost her about $20 to $30 but under the new plan it costs her about $2 for 20 minutes.
The father gave evidence that he has alleged breach of the order on the basis that the telephone call did not last for the full hour (between 7pm and 8pm) specified in the order. The father said that he believed the order to mean that the duration of the telephone calls should be about an hour.
The father’s interpretation of this order – that the child is to speak to him for ‘about’ the period of one hour – has not been raised by him in respect of other conversations that lasted for less than one hour. I consider that he is, or ought to be aware that the order means that the child is to initiate the telephone call between the specified hours, but does not require the call to be of any particular duration.
The father conceded in his final address that the order did not mean that the telephone call was to be of an hour’s duration – rather the length of the telephone calls ought to be reasonable and to him this meant a bare minimum of 20-30 minutes. It was not his case that the conversation had to last the whole hour.
Looking at the records tendered by both parents, it is clear that many calls are of an hour’s duration or thereabouts, some longer, but in my view, this is not required by the order. Telephone calls were made by the child on the required date, within the relevant time band: see paragraph 77 as to the time band.
Contravention dismissed, and should never have been alleged.
(j) 5 September 2004
Sunday – Father’s Day.
On the previous Wednesday, 1 September 2004, the child spoke to the father for 74 minutes. In her affidavit sworn 28 May 2005 the mother in her annexure “KEC-1” states next to the date, 5 September 2004 “Child refused on Father’s Day”.
The mother’s further evidence about the fact there was no telephone call to the father on this day is set out in the paragraphs that follow the next alleged contravention.
(k) 8 September 2004
There was no telephone call on Wednesday 8 September 2004. The child rang the father on Sunday 12 September and spoke to him in four separate telephone calls of 13, 17, 27, and 8 minutes’ duration– a total of 65 minutes. Sunday 12 September 2004 was not a day on which the order required a call to be made.
On 12 September, the child told the father that the mother would not let her call him on Father’s Day (5 September) although she had asked to ring and wish him a happy Father’s Day. The child explained that they spent the day with grandpa (the maternal grandfather who resides in Adelaide). In the same conversation she told her father that the mother would not let her ring the father on Wednesday 8 September 2004. The father cross-examined the mother about the lack of a telephone call to him from the child on Father’s Day 2004 and he put to her that she did not allow the child to ring. The mother disagreed and said the child did not want to ring. The mother said she reminded the child it was Father’s Day and that she should ring and that the father would want her to ring. The mother agreed that she and the child may have been in Adelaide on Father’s Day in 2004 (at her father’s residence) but her father would have allowed her to use his phone. The mother explained that the child tells lies to her father (about the mother’s actions) because she worries that she (the child) will get into trouble with the father if she has not rung for a while. The mother earlier explained in her cross-examination by the father that the child says things to the father to get him on side, for example, if she has not rung her father for a while she tries to placate him by telling him things that will make him angry at the mother. I accept this evidence of the mother about the child’s behaviour.
No explanation was provided for why there was no phone call on 8 September 2004 but in cross-examination of the father it was put that the phone call on 12 September 2004 (a Sunday) was a proximate one and it lasted for 65 minutes.
I accept the mother’s evidence that the child refused to ring on Father’s Day despite the mother’s reminder that it was Fathers Day. I also accept the mother’s evidence that the child’s explanation to her father of why she had not called on Father’s Day and on 8 September (that her mother would not let her) was untruthful. I accept that the call on 12 September was proximate to the missed call on 8 September and provided the father with substantial telephone contact.
Contraventions established but I find that there was a reasonable excuse in both cases.
(l) 15 September 2004
The child rang the father on Thursday 16 September 2004 and the call lasted for over 20 minutes.
Contravention established but reasonable excuse (proximate call).
(m) 20 October 2004
The child rang the father the next day on 21 October 2004 and spoke to him for about 22 minutes.
Contravention established but reasonable excuse (proximate call).
(n) 3 November 2004
No telephone call. The mother’s annexure KEC-1 to her affidavit filed 1 June 2005 states that the telephone records are missing for this period. Mr Wood put that the phone call on 14 November 2004 (44 minutes) was proximate to the two missed phone calls of 3 and 10 November 2004. See below, 10 November 2004
(o) 10 November 2004
The mother’s explanation for no telephone call on this date is that the child was attending a school camp and that the child rang her father on 14 November 2004 and spoke to him for over 44 minutes. This telephone call was not part of the scheduled calls. I find that the mother’s explanation and the proximate call on 14 November provide a reasonable excuse for the call missed on 10 November, but not for the call not made on 3 November. I will return to this later.
(p) 17 November 2004
The mother’s Exhibit W1 shows that there was a telephone call of 4.81 minutes’ duration on this day. In cross-examination the father said “Well, if that’s what the record says then obviously I can’t disagree with the Primus record but I don’t have any recollection or record of that four-minute call.”
Contravention dismissed. Although this was a relatively short telephone call I take into account that the father’s Exhibit H1 indicates that the child telephoned him on Sunday 14 November 2004 – outside the court order – and spoke to him for 44 minutes.
(q) 8 December 2004
There was no telephone call. The mother offers no explanation other than that her telephone records are missing for this period. In the case of this allegation and the allegation relating to 3 November I am not satisfied that a contravention is established. I accept that the mother does not have her records for those occasions. Where she does have her records, they frequently demonstrate a proximate call or calls that provide telephone contact between the child and her father. I am also uninclined to find these contraventions established in circumstances where the father accepted, within the same period of time, that if the mother’s records showed a call on 17 November, then he accepted that it was made, even though he had no record of it.
(r)2 February 2005
The mother’s Exhibit W1 shows that the child was “sick with tonsillitis discussed in telephone call 09/02/05”. The telephone call on 9 February 2005 between the child and her father was close to 47 minutes long. In her oral evidence the mother explained that the child was sick with tonsillitis on 2 February and had not wanted to ring her father. The mother asked the child to tell her father that when she telephoned him the following week.
I accept that this happened.
Contravention proved but reasonable excuse (child’s illness).
(s)2 March 2005
The mother’s Exhibit W1 shows that there was a telephone call on 8 March 2005 of over 58 minutes, plus the scheduled phone call on the next day (Wednesday 9 March 2005) of over 52 minutes. The father’s exhibit H2 states that he had a 39 minute telephone call with the child on 8 March 2005.
On any view there was clearly a make up contact period in the form of the call on 8 March.
Contravention proved but reasonable excuse.
(t)9 March 2005
The mother’s Exhibit W1 shows that there was a telephone call on 9 March 2005 of over 52 minutes. The mother’s Primus records for that period were shown to the father. The father had said that there was no call on this day but he eventually agreed that the mother’s Primus records for 9 March 2005 showed there were four telephone calls to his mobile number at various times that day. He did not accept that his records were inaccurate in so far as he said there was no telephone call that day from the child and he did no more than acknowledge “there’s a difference between my records and the Primus records.”
I accept that the mother’s records and evidence establish that there were proximate calls on the day, and I am also mindful of the father’s earlier acceptance of the proposition that if the mother’s Primus telephone account records show a call to his number, they are likely to be correct.
Contravention dismissed.
(u) 6 April 2005
In her affidavit filed 1 June 2005 annexure KEC-1 the mother had put “Child refused” next to this date. She was not cross-examined about this assertion and I accept that this was another occasion on which the child refused to telephone her father, and find that the mother had a reasonable excuse.
Whilst I have found that there was a reasonable excuse in respect of these contraventions, many of which were admitted, I refer to paragraph 97 at the conclusion of my consideration of paragraph 3 of the father’s allegation of contravention and say that the overall pattern and duration of telephone calls made outside the time frame provided by the orders strongly negates the existence of the necessary intent not to comply, or failure to attempt to comply, that the Act requires.
PARAGRAPH 3 OF THE FATHER’S APPLICATION
Paragraph 3 of Part D of the father’s application states:
On the dates listed below, the respondent failed to provide telephone contact with the child [T], born […] March 1995, in accordance with those orders. The respondent either failed to allow or prevented the child from contacting the father in accordance with the orders.
The father then lists in (a) to (m) the dates that he alleges there has been a contravention. The father in cross-examination explained that the dates set out in paragraph 3 of his contravention were in this list because either the telephone calls were of short duration or were outside the time band (7.00-8.00pm). In cross-examination the father said that there were two forms of breaches and “the first form (that is, paragraph 2 of his application) is where the mother prevented any form of telephone contact at the prescribed time and the second form (that is paragraph 3 of his application) is where the telephone contact took place outside of the prescribed time.” When he was asked about his complaint that some of the telephone calls were of short duration and where they would be found, the father replied that they “would be paragraph 3”.
The time band within which calls were to be made
The father acknowledged that the court order made 2 February 2004 did not state whether the time the telephone calls to be made referred to South Australian or Victorian time and agreed that having regard to the difference between the Central and Eastern time zones, there was a time band of more than one hour within which a call could be placed. He explained that he “erred on the side of caution and allowed the order to be based on the Adelaide time” for his paragraph 3 list so that if “one of the items in paragraph 3 was not between 7.00 and 8.00 Victorian time, but was between 7.00 and 8.00pm on South Australian time, I think I didn’t include it in the list.” Having regard to the lack of clarity of the order, I find that the telephone calls to the father could be initiated within a time band extending from 6.30pm in South Australia (7.00pm in Victoria) to 8.30pm in Victoria (8.00pm in South Australia) and still amount to compliance with the order.
A document had been prepared on behalf of the mother which compared the father’s records of the telephone calls to the mother’s Primus records – listing the date, time and duration of the telephone calls in South Australian time. It became Exhibit W4. The father had an opportunity to look at the schedule in Exhibit W4 and agreed that the record matched “fairly closely” with the records it purported to extract and there was nothing he wanted to say was inaccurate.
I reproduce Exhibit W4. It shows that on each of the days in paragraph 3 of his contravention application the child did telephone him. The father’s records themselves confirm this. As stated in Exhibit W4 the time is South Australian time in both columns. In short, the latest, that a call could be initiated and be within time is 8.00pm South Australian time.
Dates of alleged Primus records [mother] Husband’s records –
Contraventions MP3 &Call Schedule
31/03/2004 8.22pm 31.57 minutes
12/05/2004 9.48pm 66.54 minutes
23/06/2004 8.04pm 86.16 minutes
04/08/2004 9.10pm 14.28 minutes 8.15pm 14 minutes
22/09/2004 7.01pm 44.81 minutes 7.06pm 34.78 minutes
13/10/2004 8.11pm 66.58 minutes 8.10pm 65.4 minutes
27/10/2004 8.31pm 31.88 minutes 8.35pm 32.16 minutes
01/12/2004 8.02pm 88.2 minutes 8.37pm 87.98 minutes
16/02/2005 8.20pm 82.15 minutes 8.26pm 82.15minutes
21/02/2005 8.55pm 12.3 minutes
08/03/2005 7.31pm 50.68 minutes
30/03/2005 6.30pm 1.5 minutes 6.35pm 1 minute
13/04/2005 10.16pm 37.6 minutes 10.22pm 37 minutes
I set out below the alleged contravention dates and state the duration of the telephone call and when the call commenced in South Australian time.
(a)31 March 2004
The telephone call commenced at 8.22pm and is therefore 22 minutes late. It lasted almost 32 minutes.
(b)12 May 2004
The telephone call commenced at 9.48 pm, 1 hour and 48 minutes late. It lasted almost 67 minutes.
(c)23 June 2004
The telephone call commenced at 8.04pm, four minutes late. It lasted 86.16 minutes.
(d)4 August 2004
The father’s complaint about the telephone call from the child on this day was that it was of only 14 minutes duration and that he received the telephone call at 9.45pm (Victorian time) (Exhibit W1 - the mother’s Primus call report shows a call at 21.10 South Australian time), not between the prescribed times.
(e)22 September 2004
This telephone call commenced at 7.01pm for and lasted for 44.81 minutes (according to the mother’s records) or 7.06pm for 34.78 minutes (father’s records). Either way the telephone call was made within the prescribed time and there can be no complaint about the duration of the call.
(f)13 October 2004
The telephone call commenced at 8.10/8.11pm, ten minutes late. It lasted for over 65 minutes.
(g)27 October 2004
This telephone call commenced at 8.31pm (mother) or 8.35pm (father) – 31 or 35 minutes outside the prescribed time. The call lasted over 31 minutes.
(h)1 December 2004
On the mother’s records the telephone call was made only 2 minutes outside the prescribed time – 8.02pm. The father’s records show the call was 37 minutes outside the prescribed time. The call lasted for over 87 minutes.
(i)16 February 2005
The telephone call was made either 20 or 26 minutes outside the prescribed time commencing at 8.20pm, or 8.26pm. It lasted over 92 minutes.
(j)21 February 2005
The telephone call was made 55 minutes outside the prescribed time and lasted for 12.3 minutes. This is based on the father’s records.
(k)8 March 2005
According to the father’s records the telephone call commenced at 7.31pm and lasted for over 50 minutes. The telephone call was made within the prescribed time and there can be no complaint about the duration of the call.
(l)30 March 2005
The father confirmed in cross-examination that his complaint related primarily to the short duration of the telephone call. The call lasted one minute. The mother’s records in Exhibit W1 show the telephone call as lasting 1.5 minutes. In cross-examination it was put to the father that on this occasion his daughter rang him at 6.35pm South Australian time and he told her that she had rung too early. The father denied this.
The conversation transcribed in annexure KEC1 to the mother’s affidavit filed 8 September 2005, the father refers to a recent one minute conversation. The child agrees she did call him for one minute “because you started getting …” and the father cuts her off saying “You called me for one minute you called me for one minute. That is not a telephone call.”
The evidence does not specifically link this conversation, and the reference to a call that lasted only one minute, to the call of 30 March 2005 which on any view lasted less than two minutes: see alleged contravention (l) above, but it satisfies me that on at least one occasion at about that time, there was a conversation of about that duration that the child explained to her father was cut short because of the father’s statements to her. In the circumstances, I am not satisfied that the allegation of contravention on 30 March is established, it being my view that such an untypically short call may well be explained by some interaction between the child and her father, rather than by any failure to comply with the order on the part of the mother.
(m)13 April 2005
This telephone call took place at 10.16 or 10.22 pm, over two hours outside the prescribed time. The call lasted for 37 minutes.
Conclusion re paragraph 3
I find that on eleven occasions - allegations (a), (b), (c), (d), (f), (g), (h), (i), (j), (l) and (m). – the calls were made outside the relevant time band.
The mother’s defence was that her general evidence about the child’s behaviour, referred to in paragraph 27 of this judgment, which I have accepted, reasonably explained and excused this unreliability as to times, and that the consistency with which calls were made, albeit outside the time band, and the duration of those calls, totally negated any suggestion that she had “intentionally failed to comply with the order, or made no reasonable attempt to comply with the order” which I must find in order to find that she has contravened the order.
An examination of the calls made on the appropriate day, but outside the time band, shows that such calls are generally of ample duration, and provided the father and the child with opportunities to communicate, at considerable length on most occasions. To his credit, the father does not appear to have rejected calls made outside the time band (with one alleged exception), and has availed himself of the calls whenever they were made.
In these circumstances, the intent of the order has been achieved, and the mother’s encouragement of the child is self evident from the fact that these calls have been made.
For these reasons, I am not satisfied that these out of time calls amount to contraventions, and even if I had been satisfied that they were contraventions, I consider that the wife’s evidence about the child’s strong willed behaviour, and how that may impact on the timing of calls, provides a reasonable excuse in the case of all these calls.
All contraventions alleged in paragraph 3 are dismissed.
ALLEGED CONTRAVENTIONS OF TRAVEL NOTICE PROVISION
Paragraph 4(b) of the orders made by Justice Brown on 2 February 2004 provided:
4.For the purpose of contact pursuant to paragraphs 3(a) and (b) [contact during the school term holiday periods and school Christmas holiday periods] hereof:
…
(b)the wife notify the husband in writing of the date and time of travel, the name of the airline and the relevant flight details not less than one calendar month prior to the commencement of each contact period;
…
Paragraph 1 of the father’s application asserts:
In March 2004, June 2004 and March 2005, the respondent failed to provide notification of travel arrangements regarding the child [T] born […] March 1995 as required by those orders. The respondent deliberately made no attempt to comply with the requirements of the order on the first two occasion [sic], whilst on the third occasion the respondent deliberately delayed any attempt to comply with the order, resulting in a breach of the order.
Paragraphs 7 to 10 of the father’s affidavit sworn 15 April 2005 set out the facts that form the basis of the father’s complaints.
MARCH 2004
The relevant part of paragraph 7 of the father’s affidavit states:
Paragraph 4(b) of the orders of Brown J of 2 February 2004 provide that the mother is to notify me of the travel arrangements for school holiday contact not less than one calendar month prior to the contact period. In breach of these order, the mother failed to provide such details for the April 2004 and July 2004 school holiday periods.
Paragraph 8 of the said affidavit states:
I wrote to the mother’s solicitors 18 March 2004 to inform him of the first breach and requesting the travel details. Although I received a letter dated 23 March 2004 from the solicitor, no details were provided in that letter. A copy of that reply is attached to this affidavit and marked as “TF-1”. The child provided the details during a subsequent telephone contact.
Neither in his contravention application nor his affidavit does the father set out the date on which this period of contact was due to commence under the order of Justice Brown made 2 February 2004.
In annexure “TF-1” the solicitors for the mother set out in a letter to the father dated 23 March 2004 their instructions in relation to the notice for the April 2004 school holidays. It states:
In relation to the travel arrangements for [the child] we are instructed that our client has had [the child] forward her travel inventory to you by way of a letter (in an envelope pre-addressed and pre-stamped by you) which was posted at the [L] Post Office on the 8th March, 2004.
The mother in her affidavit sworn 28 May 2005 at paragraph 4.1 states:
As to March 2004 contravention I say that I observed [the child] post a letter at the [L] Post Office on the 8th March 2004 enclosing the Virgin Blue Flight Schedule in compliance with the said Court orders. The envelope used by [the child] was a preaddressed and prestamped envelope that the husband had supplied to [the child] prior to [the child] and I departing Victoria and relocating to […] South Australia for the purposes of encouraging her to write to him. Further I distinctly recall she had decorated the said envelope with pictures and had also included notes to the husband together with the said flight schedule.
It would appear from Exhibit H2 in the notes column for the date 6 April 2004 where there is a reference to the child being taken to the airport on the Saturday, that the first date of contact was 10 April 2004. If that is right then pursuant to the order the father should have been advised in writing by 9 March 2004. On the mother’s evidence the father was sent a letter posted on 8 March 2004 at L Post Office, the place of the father’s post office box address and therefore the letter should have been available to him on the day of posting. The father was advised by the mother’s solicitors by letter on 23 March 2004 that such a letter (including the flight schedule) was posted and advised by telephone call from the child on 24 March 2004 of the travel details. Paragraph 4.4 of the mother’s affidavit affirmed 7 September 2005 refers to the recordings in MP3 format of the telephone discussions between the father and the child supplied by the father and refers to the child on 24 March 2004 giving the father all details about her flight to Melbourne on 10 April 2004 and return on 17 April 2004.
The mother said in cross-examination that the envelope she described as having been decorated by the child was done in purple pen with aeroplanes on it and the child had written on the outside “plane details inside” or ‘notes inside” and “I love you daddy see you soon”. The mother was shown an envelope by the father but the mother did not agree that it was the envelope that was posted in L. The envelope was not tendered.
I accept the mother’s evidence that the child posted the schedule at L on 8 March 2004, and whilst the father’s allegation of contravention does not specify the date by which he should have been given notice, the evidence to which I have referred strongly suggests that 8 March was the date. Given that the father’s postal address is a post office box at the same post office at which the envelope was posted, I conclude that it would have been available to him within the time prescribed by the order. Contravention dismissed.
JUNE 2004
Exhibit H4 is an envelope with South Australian postal imprint showing 25 June 2004. The Virgin Blue travel plans inside the envelope show the child was to travel from Adelaide to Melbourne on Saturday 3 July 2004. Therefore pursuant to the orders the father was to be notified of the travel details by 2 June 2004.
In her affidavit sworn 28 May 2005 at paragraph 4.2 the mother states:
As to June 2004 contravention I say that I observed [the child] post a letter in [South Australia] on or around the 22nd May 2004 enclosing the Virgin Blue Flight Schedule in compliance with the said Court orders. The envelope used by [the child] was a preaddressed and prestamped envelope that the husband had supplied to [the child] prior to [the child] and I departing Victoria and relocating to […] South Australia for the purposes of encouraging her to write to him.
In cross-examination by the father the mother agreed that the envelope that she was shown by the father is postmarked 25 June 2004, the travel date was 3 July 2004 and she made the flight bookings on 5 March 2004. She said that she made the bookings for the April and July school holidays at the same time and she may have put both bookings in the envelope to the father (the one posted at L on 8 March 2004). Exhibit H6 confirms that the mother made this booking on 5 March 2004. However the father said he did not receive it and the child told the mother that the father had not received it so she posted it again (on 25 June).
I accept the mother’s evidence about the child posting the information in good time and that the envelope with the postmark of 25 June was a resending of the information when the child told her mother that her father had not received the information.
Contravention dismissed
MARCH 2005
In paragraph 7 of his affidavit sworn 15 April 2005 the father states:
The mother provided the details for the April 2005 school holiday period but not within the time specified in the orders. The South Australian school holiday period commences 16 April 2005. The mother booked and paid for [the child’s] flight on 24 February 2005. A copy of the invoice is attached to this affidavit and marked as “TF-19”. She did not mail the details until 15 March 2005, and the registered letter notice was not place[d] into my mail box until 17 March 2005. A copy of the registered envelope, showing the post office markings is attached to this affidavit and marked as “TF-20”. The mother deliberately postponed the mailing of the required notification so as not to comply with the order.
The order requires the mother to notify the father in writing “not less than one calendar month” and in this instance the mother should have notified the father by 15 March 2005.
The mother answers the father in paragraph 4.3 of her affidavit sworn 28 May 2005. It states:
As to March 2005 contravention I say that I posted a letter by registered mail in [South Australia] on or around the 12th March 2005 enclosing the Virgin Blue Flight Schedule in compliance with the said orders. The envelope which I used was a preaddressed and prestamped envelope that the husband had supplied to [the child] prior to [the child] and I departing Victoria and relocating to […] South Australia for the purposes of encouraging her to write to him. Further whilst my recollection is that I posted the said letter of the 12th March 2005 the husband in an affidavit sworn the 15th April 2005 and filed 26th April 2005 (Court file document number 471) annexed a document marked with the letters “TF-20” which is the said envelope I posted as deposed to in this sub-paragraph save to say the Australia Post markings over the relevant postage stamps do not clearly identify the date of posting and there is an imprint marking on the said envelope which shows the words “PAID SA 15MA” with the rest of the marking illegible but I verily believe the said marking would disclose the date of the 15th March 2005 and such imprint marking would have been made at the relevant Mail Clearance Centre in South Australia which processed the said registered mail envelope. At paragraph 7 of the husband’s said affidavit he acknowledges receipt of my letter.
Other allegations of late notification
During his cross-examination of the mother, the father said he wanted to rely on travel notifications by the mother apart from the three he had alleged in his contravention application to show that the mother deliberately delayed in letting him know the dates the child will be travelling for holiday contact. I permitted the father to put further travel notifications to the mother but on the basis that he could not at a later time allege these were contraventions. I directed him to put each and every date between February 2004 and August 2006. The father agreed. The mother agreed that on about two occasions, the travel notification had been a day or two late. She said that she thought that she was required to give 4 weeks notice, not a calendar month and in any event the child gave him details of the travel arrangements on the telephone. The father alleged that each and every one of the travel notifications have been late. The mother denied this.
In cross-examination the mother denied knowingly and actively delaying sending the travel notification to the father. She thought initially it was 4 weeks notice but stated that she now realises that it is a month. She said that the father sometimes denied getting notification so she was advised to send the notification by registered post and that this decision occurred about the same time as the order was made by me on 2 August 2004 which read as follows:
2.Paragraph 4(b) of the order of Justice Brown made 2 February 2004 is varied to read::
(b)the wife notify the husband in writing (to be sent by registered mail to the husband’s Post Office Box address) of the date and time of travel, the name of the airline and the relevant flight details not less than one calendar month prior to the commencement of each contact period.
Conclusion as to the March 2005 alleged contravention
I accept the mother’s evidence to the effect that she has been a day or two late with the notice provisions on some other occasions that she was asked about, but I am satisfied that generally, four weeks’ notice has been given and that this was what the mother thought was required for quite some time.
In the case of the March 2005 contravention, it appears from the post mark that the mother posted the information on the day that the father should have received it. He received it two days later. Whilst it was clear that the mother had been in possession of the booking details for quite some time and could have sent it earlier, I am not satisfied that her actions on this occasion amounted to an intentional failure to comply or that she did not make a reasonable attempt to comply. Contravention dismissed.
Other matters
In determining these allegations of contravention I have been mindful of a number of matters that arose in the course of the hearing that Mr Wood urged me should be taken into account in my overall determination of the matter. In short, he submitted that the mother’s conduct in encouraging the child to telephone her father and ensuring that face to face contact always took place should be viewed in the light of the father’s attitude to the mother which emerged during his cross examination. He also submitted that I should have regard to the fact that although the mother pays all telephone and travel costs, the father pays her virtually no child support and has no intention of doing so. The following extract from the transcript of the proceedings on 3 October 2005 sets out the evidence to which Mr Wood was referring:
Insofar as my client is concerned do you remember that you had a large number of complaints about my client's care of [the child] when you were before Guest J. Is that right?---Yes, I did have a long - I still do have a long list of complaints, yes.
Have any of the complaints that you had at the time you were before Guest J, have you abandoned any of those or do you say they're all just as relevant today as they were back in 1999 when he heard the matter?---Sorry, say that again?
All of those complaints that you made to Guest J back in 1999, do you say that they're all just as relevant today as it was back in 1999 or as they were?
---In context, yes.
What you say today is this: firstly, you say that my client is a liar. Is that right?---Absolutely.
Is absolutely dishonest. Is that right?---Absolutely.
And would lie about the largest or smallest issue?---Absolutely.
Insofar as my client is concerned, you were alleging that she would physically harm the child. Is that right?---Yes.
Do you still maintain that position today?---That she - sorry?
That she would physically harm the child?---That she would? I'm just trying to clarify the question. Are you asking that she would or she has or she will?
Well, let's start with this: do you say that she has physically harmed the child?---Yes.
Do you say that she will in future physically harm the child?---Well, I can't guarantee anything in the future.
Well, history has got to be some guide. Do you say that she is someone who is liable to physically harm the child in future?---Is she liable to physically harm the child in the future? And you want me to use history as a guide, I'll say yes.
She will not properly nourish the child. Is that right?---Yes.
She will not properly discipline the child. Is that right?---"Properly discipline"? What do you mean by that?
Do you say that she would appropriately discipline the child?---Do I state that she would appropriately discipline the child?
Yes. Why don't I make it even easier for you?---Please do.
Have a good think about this one?---All right.
Think of something that you can say about my client as a mother that would be positive?---That would take some thinking.
Yes. Well, remember before Guest J I gave you 30 seconds as I didn't want to rush you off your feet. Now, you have since 1999 to think about whether there might be something positive to say about my client as a mother. Can you think of anything?---Well, given the fact that we haven't seen each other for how long?
Can you think ‑ ‑ ‑?---We don't interact. We don't talk. We don't write letters. What do you want me to base that on, Mr Wood?
Can you think of anything positive that you could say about my client?
---No.
You take the view, do you not, that [the child] being in the care of my client, every day that that occurs would be a day of misery for [the child]. Is that right?---I haven't said that.
Well, do you say that?---No.
What's your view about [the child] remaining in the care of my client?---I think it's against her best interests.
Yes. And you have always maintained that view. Is that right?---Yes.
You maintain it to this very day. Is that right?---I do, yes.
Do you believe that [the child] is suffering in the care of my client?---Yes.
Have you always maintained that view?---In one form or another, yes.
Now, it's fair to say, is it not, that as far as my client is concerned you couldn't have a dimmer view of her, could you, basically?---I could. I think I could have a dimmer view, yes.
Could you? What else could she do to give you a dimmer view?---Are you asking me to speculate?
Yes. You regard my client as being beneath contempt, don't you?---Yes, I do. Yes, I do.
Absolutely worthless as a mother. Is that right?---They're your words but I won't disagree with t hem. (my emphasis)
Insofar as the support of [the child] is concerned, firstly, do you pay any child support to my client at the moment?---Not directly to her, no.
Is there a child support assessment in ‑ ‑ ‑?---Yes, there is.
Is that for, what, $21 a month?---I think it's $21 and some cents a month, yes.
You don't pay that?---To the mother, no.
The reason that you don't pay my client any child support is that you take the view that she would simply spend that on herself and wouldn't spend it on [the child]. Is that right?---She has proven that time and time again in the past so I maintain that view, yes.
So that your attitude remains now that you will never pay her any child support. Is that so?---I don't think I've said it that way.
Well, is that your position?---No.
What is your position insofar as paying child support to my client. Don't worry about ‑ ‑ ‑?---Directly to your client?
Directly to my client?---I will not pay anything to your client.
And never will?---I will not pay anything directly to your client.
Ever? Is that right?---I've answered your question twice. Do you want me to answer it a third time? I will never pay anything directly to your client.
Mr Wood also submitted that any apparent failure to comply with the court orders should be seen in light of the father’s deliberate flouting of the orders of Brown J.
Father’s attitude to court orders
The father agreed in cross-examination by Mr Wood that where a contact order prescribes certain contact for him to have with his daughter that that is the whole of his daughter’s entitlement to contact unless some agreement is reached to vary it. However when examples were put to him of him having contact outside of the orders he did not make the same concession. When it was put to him that he was not entitled by the court order to attend the child’s school on any day of his choosing, the father referred to paragraph 3(c)(ii) of the orders of 2 February 2004 which provide that in the event the father does not have contact with the child on any of these days [Father’s Day, the father’s birthday and the child’s birthday] then telephone contact is to take place between the hours of 7 and 8pm and replied “first of all I don’t have any order saying I can’t go to the school to visit my daughter or anybody else and that paragraph says in the event we don’t have contact on those days which implies somehow we have to have contact on those days. …In my interpretation I would be allowed to do that [attend school] if I chose to do that ..with or without notice.”
I consider that this was a baseless defence of actions that the father knew to be wildly outside the scope of the order. The order, in paragraph 3(d), allows the parties to agree on other contact periods. Paragraph 3(c)(ii) simply contemplates that the parties may agree to face to face contact on those specified occasions, and provides for telephone contact if no such agreement is reached.
It was then put to the husband that in so far as holiday contact is concerned the commencement and conclusion times of holiday contact were very specifically referred to in the orders. The father agreed. The father agreed he had not complied with that order and quite knowingly has not complied with that order. The father agreed that by his being on the same flights to and from Adelaide with the child he was acting outside the orders and he added, to this admission, “If your client wishes to put in a contravention application against me, well, please let her do so.” These are the commencement and conclusion provisions contained in paragraphs 5 and 6 of the order that he so readily ignores:
(5) That for the purpose of contact pursuant to paragraphs 3(a) and (b) hereof, the time at which contact shall commence on the first day of a contact period shall be at the time at which the flight on which [the child] is booked by the wife from Adelaide to Melbourne, arrives at Melbourne (Tullamarine) airport.
(6) That for the purpose of contact pursuant to paragraphs 3(a) and (b) hereof, the time at which contact shall conclude on the last day of a contact period shall be the time at which passengers are required to board the flight in Melbourne (Tullamarine) airport on which [the child] is booked by the wife from Melbourne to Adelaide.
In re-examination the mother gave evidence that she booked the child an unaccompanied child on the flights to Melbourne to meet the father because this is what the child wanted. She explained that the unaccompanied children are seated next to each other and the child looks forward to this, she wants to be independent and the father treats her like a baby. The transcript of a conversation between the father and the child in annexure KEC 1 to the mother’s affidavit filed 8 September 2005 shows that the child indicated to her father that she was not happy with him being at the airport. The father has been travelling to Adelaide to meet the child at the airport and then returning on the same flight as her and despite the child’s statement to him, the father continues to travel to Adelaide to meet the child and travels back with her at the end of the time with her father.
The real iniquity of the father’s attitude to the court orders, and his breaching of them, is the conflict he creates for the child by his actions and his statements. The passages of Brown J’s order relating to contact that I have set out make it clear that his time with the child commences in Melbourne, when she gets off the plane, and ends when she boards the plane to travel back to Adelaide. By accompanying her on her flights, the father knowingly (as he admitted in cross examination) acts contrary to the order, and these actions are simply an exercise in self help, quite outside the limits of the order. The same can be said of his unannounced attendances at the child’s school on her birthday, in 2004 and 2005.
How the father’s conduct in contravening these orders impacts adversely on the child can be seen from the following extracts from annexure KEC1 to the mother’s affidavit filed 8 September 2005, in which the father falsely asserts to the child that there is no court order that restricts him from coming on her flights, and from coming to her school, and her distress at the father’s assertion that the mother is lying (to the child) when she states that the court orders do not permit him to do these things is quite palpable on reading the transcript:
[Father]: Why are you angry, are you angry, why are you angry?
[Child]: I am angry because you just would not post me my birthday present on my birthday and you came and ruined it and I just spent the whole lunch in the front office
[Father]: Well I am sorry [child’s name]
[Child]: Dad I don’t think you are sorry
[Father]: Well what makes you don’t think I am sorry
[Child]: Because you have done this before. I know it is going to happen again next year
[Father]: [Child’s name]
[Child]: What?
[Father]: I have been to your school before its OK
[Child]: I know you did that last year and you got into trouble
…
[Child]: One – you ruined my birthday
[Father]: No ..No I did not ruin your birthday [child’s name]
[Child]: You did Dad … OK you came to my school …breaking into tears
[Father]: [Child’s name] do you think I would go to .. [child’s name]
[Child]: What
[Father]: Do you think I would go to all the time and effort and trouble and do that if I was not allowed to?
[Child]: Well you are not allowed to [Child] in tears
[Father]: No [child’s name] you did not answer the question. Do you think I would go to all that trouble and time and effort and all that money and go all that way to see you on your birthday if I was not allowed to?
[Child]: No
[Father]: OK so I am telling you the truth I did it because…
[Child]: in tears…I am telling the truth
[Father]: [child’s name] we just agreed that I was allowed to that’s why I did it. Right?
[Child]: in tears I never agreed…I said NO…No…MEANS…No
[Father]: Well put the phone down [child’s name] OK.
…
[Child]: Well I am very angry about the message you sent
[Father]: Which message?
[Child]: crying the message the message that you sent that my mum was lying to me. She …she never lies to me.
[Father]: I am keeping a list [child’s name] and you will be able to read that list when you are a little bit older OK and you can make up your own mind.[Child]: I am ten years old. OK I am old enough
[Father]: Well fine any time you want to see the list you just ask me for it and you can see it OK
[Child]: And why do you keep coming on the plane with me when you know you are not allowed to.[Father]: [Child’s name] there is nothing in any order or any…
[Child]: Yes there is mum has got it in writing
[Father]: [Child’s name] there is nothing that says I cant come over
[Child]: Yes there is
[Father]: No there isn’t [child’s name]
[Child]: Yes there is I even to ask my mum. Still crying
[Father]: You can ask her anything you like
[Child]: Fine I’ll ask her right now
[Father]: Well if you want to waste your time that’s up to you [child’s name] alright.
[Child]: Its not a waste of time
[Father]: If you can show me a piece of paper
[Child]: crying I cant show you we are talking over the phone
[Father]: If you can point me a piece of paper that says I am not allowed to go to the airport and pick you up then that’s fine but you can’t show me that and you cant point me to that because it does not exist OK
[Child]: Yes …it…does. My mum has got it in writing .. the court has got it in writing, my mums lawyer, my lawyer, your lawyer
[Father]: [Child’s name] I have got copies of all the orders. There is nothing that says I cant come over. OK
I will simply repeat that the court orders clearly do set limits on the time that the child is to spend with the father. There is provision for the parties to agree in writing to additional contact, but one of the father’s complaints about the mother is that she has never agreed to this, including the refusal of a specific request to be able to attend at the child’s school on one of the birthdays when he did appear there. As I have stated earlier, the father specifically acknowledged in cross examination that he knew that the orders set the limits of his contact, and that he was acting outside those limits in travelling with the child.
Having regard to the matters that I have set out above, I have to accept Mr Wood’s submission that the mother’s perseverance with contact in the face of the father’s attitude to her, his failure to contribute to the child’s support in any meaningful way, and his distortion of the truth in his discussions with the child about the court order is a matter of enormous credit to her. If I had found that any of the allegations of contravention were made with the necessary intent, and that there was no reasonable excuse put forward by the wife, I would certainly not have recorded any conviction (or finding of contravention) against her in all the circumstances.
All allegations of contraventions will be dismissed. I will list the matter on 12 November 2007 for delivery of judgment in respect of the summary dismissal of paragraphs 4 to 8 of Part D of the father’s application and the hearing of any further applications arising from the final orders that I will make at that time, noting that Mr Wood has foreshadowed an application for costs, and that there are other pending applications to be mentioned.
I certify that the preceding one hundred and thirty five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watt
Associate:
Date: 26 October 2007