Francis and Sabin - [2008] FMCAfam 1410

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FRANCIS & SABIN

[2008] FMCAfam 1410

FAMILY LAW – Contravention of children’s order – high level of dispute between parties – mother alleges children assaulted and fearful to go and spend time with father – reasonable excuse – make up time – best interests of children.

Family Law Act 1975, ss.70NAC, 70NAE

Applicant:

MR FRANCIS

Respondent:

MS SABIN

File number:

ADC 515 of 2008

Judgment of:

Brown FM

Hearing date:

16 July 2008

Date of last submission:

16 July 2008

Delivered at:

Adelaide

Delivered on:

16 July 2008

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

In person

ORDERS

That the matter be listed for mention on 25 August 2008 at 9.30am.
That each party is directed to file any applications they wish to bring regarding the appropriate orders for the children [D] born in 1995 and [K] born in 1997.
That during the period of adjournment Mr Richard Trevaskis, Family Dispute Co-ordinator of the Federal Magistrates Court prepare a Family Report to address the wishes of the children regarding spending time with their father and particularly whether there should be an order for make up time or whether it is likely to be in the best interest of the children concerned that the orders of 16 September 2005 be re-instated.
The court is satisfied that count 1 and 2 of the contravention application filed 11 February 2008 are made out and that the mother did not have a reasonable excuse for such contravention.
By way of penalty pursuant to section 70NEC of the Family Law Act it is ordered that the mother enter a bond in the sum of $500.00 in his own recognizance to be of good behaviour for a period of 6 months and obey all orders of this Court and the Family Court of Australia

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 515 of 2008

MR FRANCIS

Applicant

And

MS SABIN

Respondent

REASONS FOR JUDGMENT

This afternoon, I am dealing with a contravention application, which is brought by Mr Francis. The respondent to the application is Ms Sabin. The contravention relates to some orders made in respect of the parties' two children, who are [D], born in 1995, and [K], who was born in 1997.
There is no dispute between the parties concerned that orders were made by the Federal Magistrates Court at Adelaide on 16 September 2005. Pursuant to those orders the two children were to live with their mother and spend time, or have contact, as it was then known, with their father regularly, particularly on alternate weekends from 6 pm on Friday until 6 pm the following Sunday; in the other week, from after school on Wednesday until school started the following Thursday; and for half of each school holiday period.
The contravention application relates to what happened between the parties from 14 January 2008 onwards. There is no dispute between the parties that, pursuant to the orders of 2005, Mr Francis was entitled to spend time with the two children, but he did not spend as much time with the children, pursuant to the orders, as he was entitled to. That situation remained the case until 23 April and I will come to what happened on 23 April in a moment.
It is Ms Sabin's position that although the children did not spend time with their father or have contact with him, she had a reasonable excuse for not providing the children to their father. Obviously, Mr Francis has a different view about that.
Mr Francis started these proceedings on 11 February 2008. They were given a return date on 3 March and on that occasion the parties both appeared, and I referred them to a family consultant, Dr Savage, who saw the parties and particularly the two children.
As a result of that meeting, I was advised that the parties had reached part-agreement in respect to a number of issues and that there should be a further child dispute conference in about three months' time.

Dr Savage recommended that the parties should exchange the children at a children's contact centre.
On 23 April 2008, as a result of what I was told by the parties and after reading Dr Savage's notes, I reduced the time that the children were to spend with their father, and the matter was adjourned until today. I was hopeful that in the intervening two or three months things would settle down between all concerned, particularly the children, and that their relationship with their father could get back on an even keel. Unfortunately that has not happened.
I have heard the evidence, from both parties' point of view, about what happened between about November of last year and now. The parties act on their own behalf. I do not know very much about their personal relationship with one another, other than that it seems obvious they have been separated for a very long time now.
I think I was told, by one of the parties, that they have been involved with litigation with one another since 1998, which obviously was at a stage when the parties' younger child, [K], was very young indeed.
I had the opportunity of seeing both parties in the witness box and I suppose, as a result of that, I am in a position to make some sort of assessment of their credit or truthfulness. This is not a case that depends on the honesty or otherwise of the parties because there really are very few disputes of fact between the two of them. I do not think either of them is anything other than a truthful and honest person. However, by way of personal temperament I suspect the parties are very different indeed. It is not an uncommon phenomenon that witness can view the same set of circumstances and because of their different dispositions have an entirely different take on what happened but remain honest.
One thing is clear to me above all other things; that is, that the parties have a very difficult parenting relationship with one another and have had such a relationship for a very, very long time indeed. That is a dangerous thing for children, and it is against that background that I have to determine this case.
There was, it seems, an incident - that is how it has been described, I think, by Mr Francis - between him and [D] at some time in November of last year. [K], it seems, was playing on the road when she was visiting Mr Francis's home.
For obvious reasons that is not a good thing for [K] to be doing. From Mr Francis’ point of view it raised issues to do with the discipline of [K] for her own good. Ms Sabin, I think, does not disagree that

Mr Francis was entitled to discipline [K] on that occasion.
It is Mr Francis's position that [D] involved herself in that process of discipline, which, from his point of view, was not part of her business and in turn raised its own disciplinary issues to do with her. I am told by Mr Francis that [D] - and I think this is his expression - threw up the middle finger at him, which means, I take it, that she made a rude gesture at her father and, perhaps more seriously, told her father, when there was some interchange between them, to "Get fucked".
I do not think that is appropriate behaviour for a child of 13 and I do not think many people would disagree with me about that. I think

Mr Francis was entitled to discipline [D] in respect of what she had done and said. It is his evidence that after that happened he directed [D] to her bedroom, and, in his words, “nudged her in the bum” with his foot, and also barred her from using the computer. It is Mr Francis's point of view that that behaviour was fully justifiable in the circumstances.
Due to the nature of the parties' relationship with one another, they are not in a position to discuss these issues of discipline and parental authority with one another, and perhaps adopt a common approach to these issues. In any event, Mr Francis certainly, it seems, did not tell Ms Sabin what had happened. Gradually, news of this incident percolated to Ms Sabin through the two children concerned, particularly [K].
I pause to point out what is perhaps self-apparent, that it is very often unsafe to rely on what children tell their parents, particularly in the context of their parents not being able to have a common front in regard to issues to do with their children. I think Ms Sabin, to her credit, acknowledges that there is a possibility that the children may have been playing their parents off against each other, or manipulating their parents, to gain some advantage.
In any event, the Christmas period intervened and the children were, it seems, content to go to their father's home, to spend time with him at Christmas and receive Christmas presents and Christmas cheer from him. It was only in January of 2008 that the mother discovered what had occurred, from the children themselves, and it caused her some concern.
From what she was told by the children she does not accept that what happened to [D] was just a “nudge up the bum”, or in the bum. From her point of view, from what she has been told by the children, it was a more serious issue, which she characterises as a kick. She says that [K] in particular was very fearful, and [D] felt humiliated by what had happened.
It is the mother's position that this discipline, although initially appropriate, was far too harsh and oversteps the bounds of being reasonable and becomes, either actually or potentially, emotionally abusive for the children concerned.
Ms Sabin deposed that she contacted Mr Francis about the incident. She says that initially Mr Francis denied that there had been any incident and then later downplayed it. Thereafter, it seems that the parties were inevitably set on a conflict or confrontation with one another and such a confrontation occurred on 14 January 2008, which, on recollection, was a Monday, and was a Monday when the father was due to have some holiday time with the children.
Again on 8 February 2008, which was when Mr Francis was due to have some weekend time with the children, the contact did not occur. It is Mr Francis's position that on at least one occasion there was an unpleasant contretemps between him and Ms Sabin. He, anticipating difficulty with Ms Sabin, arranged to have a tape-recorder with him and he tape-recorded the interchange between the parties.
How sad is that? That two parents who profess to love their children have to gather potential evidence against the other for use in the court. Anyway, I heard a micro-cassette recording and I have read a transcript. Ms Sabin says it may not have been her. I think it almost certainly was. I could not hear the tape-recording very clearly, but somebody was saying, and it was a woman - and I think it was

Ms Sabin - in a very loud voice, "Get the fuck off my property." On the balance of probabilities, words of that kind were probably said, and

Ms Sabin says she probably said them.
As I say, I suspect that the confrontation between the parties, after what happened in November, was inevitable. The reality is that the parties themselves had no facility to deal with the incident that happened in November. They had no facility to raise it, to discuss their options, and it is, as I said at the outset, dangerous to rely on children to present either impartial or accurate accounts of what happened. I suspect, and I mean Mr Francis no disrespect, that he probably downplays the seriousness of the incident. Obviously, from her point of view,

Ms Sabin says it was a very significant incident, from what the children have told her.
As I say, I was hopeful that perhaps, with some time, things would settle down and the two children concerned could make their peace, if peace had to be made, with their father and the incident could be consigned to the past. That has not proven to be possible.
As I say, I felt, because of Mr Francis’s insistence, that I had to deal with the contravention application and I have heard evidence from both parties. One of the benefits of that is that I now have an impression of each of the parties and I suppose I am better placed to deal with the management of the case.
It is essentially the mother's position, I think, that the two children concerned, particularly the older child, are worn down by the conflict between their parents, are worn out by the sense that their lives are divided.
It is her position that they are, at the present time, exercising their independent judgment about their father and are not keen to spend time with him. From the father's point of view, I think he sees this as the manipulation of the mother and that she is, either actually or passively, brainwashing the two girls against him to secure her own emotional ends.
The thing about cases like this is that they are very infrequently black and white, and there are probably rights and wrongs on both sides. But, as I said a moment ago, one thing I can have no doubt about is that there is a very high level of conflict between the two parties and the two children concerned must be very well aware of that conflict as, sadly, it has been the reality of their lives for as long as they can each remember.
The mother, after the incident in January, did not come to court and formally make an application to change or suspend the orders. She says that she thought about that, called the family helpline, was told that she could not bring an application without there being some mediation first, looked at the Internet and could not find a form to vary the orders. She says she talked to the AFP, was told that she should not make the children available, and I suppose she just waited to see what would happen.
I think she must have known it would be inevitable that Mr Francis would bring a contravention application or some sort of application to enforce the orders. If she did not think that, I think she is naive not to think that it would occur. For his part, Mr Francis no doubt felt there was nothing else he could do. He felt that he was being dictated to by the mother, and, as I say, there is no capacity that the parties have to work things out, so I can understand why he brought a contravention application because he thought there was nothing else he could do.
After the parties had seen Dr Savage and after I had received her brief notes, it seemed there was some truth to what the mother said about the two children concerned being reluctant to see their father. For that reason I modified the order and I told Ms Sabin that she should tell the children that it was not up to them and it was not up to her, that I had made the order, and the children were to go. It seems that the order has been followed.
The thing about Family Court orders and orders of this court, about children, is this. Parents are frequently in dispute about arrangements for their children. Frequently. They come to court and they ask for orders to be made and orders are made. That occurs because we live in a society that is ruled by legal rules and principles. If we did not have legal rules and principles, strong people would take advantage of weak people, and there would be chaos. The weakest people in society are children and they have the potential to suffer most.
I acknowledge that orders about children are not the best way to manage the affairs of children because they are inflexible. But the fact remains that the parties came into court because there was a dispute between them about arrangements for their children. As a result there was a hearing and then an adjudication was made.
I am not entitled to look behind that adjudication and rehear the case. The orders were made and the parties were and are bound by them. It is important to remember that the parties, as I say, were not forced or frog-marched into court; they came because there was a dispute and somebody had to sort it out because the parties themselves could not do so.
Once orders have been made, obviously there has to be a mechanism for them to be enforced, otherwise they become meaningless; they mean nothing. That is the background to this contravention application. I have to make a ruling and I have to apply the law as it is contained in Division 13A of Part VII of the Family Law Act.
Pursuant to section 70NAC, a person is taken to have contravened an order dealing with 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.”
However, pursuant to section 70NAE, a person is taken to have had a reasonable excuse for contravening an order if he or she contravenes the order because, or substantially because, he or she believed on reasonable grounds that it was necessary to protect the health or safety of a person, including the child affected by a child order, and he or she did so for no longer than was necessary to protect the health or safety of the person or child concerned.
There is no doubt that Ms Sabin did intentionally fail to comply with the order. She did not make the children available, and she understood the order and she knew what the order meant. The question is whether she should be taken to have had a reasonable excuse for doing what she did.
I think "reasonable excuse" means what the words say. They are not complicated words, they are ordinary English words. "Reasonable" obviously connotes an objective standard. It is not what Ms Sabin thought, it is what a reasonable person would have thought in the same circumstances as Ms Sabin.
The other thing about having a reasonable excuse is that it is not an open‑ended concept. People can take things into their own hands, regarding a children's order, for only so long as is necessary to protect the children concerned. They are not entitled to ignore orders indefinitely but only so long as is necessary to safeguard the children concerned. After that they have an obligation to do something proactive.
In this regard I think there are two significant factors. Firstly, the incident which Ms Sabin is concerned about occurred in November. The children concerned spent time with their father over Christmas time, and, as I say, it was only in January that the inevitable confrontation occurred.
Secondly, Ms Sabin did nothing about the order for a considerable period of time, or she did nothing at all about it whatsoever, apart from not allowing the children to go with their father. To some extent she formed an alliance with the two children.
What the law says is that if there is an order it is the duty of the parent to reason with the child concerned about the order, perhaps to plead with the child sometimes, but, at the end of the day, also to direct the child to go. It is also implicit on a parent, if he or she thinks that the order concerned that was made is not the right order and is not in the best interests of the child concerned, to make an application to change that order, rather than sitting back passively waiting to see what will happen.
Having said that, I can understand why Ms Sabin would be in no hurry to come back to court. It is her case that Mr Francis has a forceful and domineering personality. I have seen Mr Francis and I have seen the parties. Mr Francis is not the sort of person who is going to sleep on what he believes are his entitlements and he is not the sort of person who will do anything other than vociferously demand them.
So I can understand why Ms Sabin did not want to come back to court and I can also understand how difficult it was for her to cut through the maze of competing authorities and information and know what to do and to do what was right, particularly when she did not have a solicitor.
On balance, I have come to the conclusion that the contravention is established, that in all the circumstances the reasonable excuse is not made out and that Ms Sabin's excuse is not a reasonable one. She should have done something more active, particularly given what she knew of Mr Francis, other than the children would not go and see their father.

The question is what should occur now? Ms Sabin says that since I made the orders of 23 April 2008 she has stuck with them, and that is so. She says that [D] and [K] have gone to see their father, and that is a good thing. She says that if I revert to the orders that were previously made the children will be stressed and there will be more difficulty.
For his part, Mr Francis wishes me to underline to the mother the consequences of her behaviour and he also wants me to make an order for make-up time. He seeks 60 days to replace the time he has lost with the children.
In terms of a make-up time order, I am not to make such an order unless I consider it to be in the best interests of the children concerned. At this juncture I am not persuaded that it would be in the best interests of the children concerned, nor am I persuaded that to change the orders back to how they were in September 2005 is likely to be in the best interests of the children concerned. Rather, I think at this stage, particularly given [D]’s age, I ought to investigate what her views are and what is the nature of the relationship the children have with their father.
What I propose doing is, finding the contravention established and in order to underlie to Ms Sabin the importance of court orders, place her on a recognisance or good behaviour bond for a period of six months. At this point I can see no use to be served by directing either party to a post-separation parenting course.
I am going to list the matter on 25 August at 9.30 and in the meantime direct each of the parties to file any applications they may wish to bring regarding what they say are the appropriate orders for the two children.
I am going to order that a family report be prepared in the period of the adjournment, to address the wishes of the two children, [D] and [K], regarding spending time with their father, and particularly whether there should be an order for make-up time or whether it is likely to be in the best interests of the two children concerned that the orders of

16 September 2005 be reinstated.
For those reasons, at this stage I do not propose changing the orders that were made on 23 April 2008.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Brown FM

Associate: Jo Williams

Date: 16 July 2008