Fulton and Packer (No 2)

[2015] FamCA 846

FAMILY COURT OF AUSTRALIA

FULTON & PACKER (NO 2) [2015] FamCA 846

FAMILY LAW – ORDERS – Contravention – Parenting – Best Interests – Where the mother was found to have contravened final parenting Orders made in July 2013 without reasonable excuse – Where the parties make submissions in relation to penalty and outcome – Order that the mother complete a post-separation parenting orders program – Variation of final Orders.  

Family Law Act 1975 (Cth)

Dobbs & Brayson [2007] FamCA 1261
Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655

APPLICANT: Mr Fulton

RESPONDENT: Ms Packer

FILE NUMBER: LEC 575 of 2007

DATE DELIVERED: 12 October 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 7 July 2015

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Ehlers

SOLICITOR FOR THE RESPONDENT: Armstrong Kutz Lawyers

Orders

1. That pursuant to the provisions of s 70NEB(1)(a)(i) of the Family Law Act 1975 (Cth) (“the Act”) the mother shall attend and complete a post-separation parenting orders program conducted by a s 65LB provider of such programs.

2. That the mother shall be personally responsible to access details of such programs through a Family Relationship Centre in her residential proximity and for making contact with a provider of such programs, enrolling in, attending and completing such a program.

3. That the mother shall complete such a post-separation parenting orders program within six (6) months of the date of these Orders and provide evidence in writing of the completion of such a program to the Court and the father as soon as she has completed the program.

4. That pursuant to s 70NBA of the Act the parenting Order of Justice Kent of 29 July 2013 relating to the child, B born … 2003, is varied by deleting paragraphs 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 and by replacing those paragraphs with the following paragraphs:

   (i)That in accordance with the child’s views, the child shall spend time with the father and communicate with him as and when the child determines.

   (ii)That the mother shall facilitate the child spending time with the father and communicating with him as the child requests from time to time.

   (iii)That the father may communicate with the child by sending him a written letter, card and/or present to the postal address provided by the mother, for the child’s birthday and for Easter and/or Christmas each year.

   (iv)That the mother shall keep the father informed of a postal address to which he can send letters, cards and/or presents in accordance with the previous paragraph.

   (v)That the mother shall write to the father at six monthly intervals advising him of the child’s development, progress and educational performance and she shall keep the father informed as to the school the child is attending at any time with the father to be entitled to obtain from any such school, at his own cost, if any, copies of reports and other information that the school usually supplies to parents of its students.

   (vi)That approval is given, pursuant to s 121(9)(g) of the Act, for the father to show a copy of this Order to any school the child attends.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fulton & Packer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC 575 of 2007

Mr Fulton

Applicant

And

Ms Packer

Respondent

REASONS FOR JUDGMENT

1. On 23 April 2015, I delivered my written judgment having heard contravention proceedings brought against the mother by the father alleging a number of counts of contravention of a parenting Order of Kent J of 29 July 2013.

1. I determined that the mother had contravened the Order without reasonable excuse on five out of the six counts of alleged contraventions.

1. After I announced that determination, both the mother and the father submitted that I should make substantial variations to Kent J’s 2013 Order pursuant to s 70NBA of the Family Law Act 1975 (Cth) (“the Act”) having regard to the evidence and the best interests of the child.

1. In evidence before me at the time was a family report prepared by Family Consultant Ms SB pursuant to a previous order of Stevenson J, made when the contravention application had come before her Honour last year. That report concluded with the recommendation that the child continue to live with his mother and for there to be no order for the child to spend time with his father other than in accordance with the child’s wishes, when he feels able and ready for it to occur.

1. Given that expert opinion, I then adjourned the matter for a further hearing to determine the Orders that would be made and on 7 July 2015 that hearing took place with the Family Consultant Ms SB being cross-examined by counsel for the mother and also by the father, who was unrepresented.

1. At the conclusion of that further hearing, I heard submissions from the parties and reserved my decision.

1. For determination are the questions of what, if any, consequence should be visited upon the mother for her contraventions of Kent J’s Order and what, if any, variation should there be to Kent J’s primary parenting Order pursuant to s 70NBA of the Act.

Should there be consequences for the mother resulting from her contraventions?

1. The father, who was unrepresented, sensitively submitted that whilst it would be appropriate for the mother to be “penalised” for her contraventions, any “penalty” would likely impact upon the child and he did not want that. He did submit though that ordering the mother to attend a parenting course might be appropriate.

1. Principally however, the father submitted that the Court should order the child to be removed from the mother’s care and to be placed in the care of a third party for a short time pending a timely placement in the father’s care, thereafter to not spend time with the mother for a lengthy period of time. I formed the impression that the father’s position was that if the child was to be ordered to transition to his care and not spend time with the mother that he was not too concerned that any other consequences be imposed upon the mother following her contraventions.

1. The scheme included in Part VII Division 13A of the Act for dealing with contraventions that are proven to have been without reasonable excuse provides for different consideration depending on the circumstances. Pursuant to Subdivision F, s 70NFA(2), where no court has previously made an order imposing a sanction in respect of a contravention of the primary order by the respondent and the court is satisfied that the respondent has behaved in a way that showed a serious disregard of his or her obligations under the primary order, the balance of the provisions of Subdivision F apply. Pursuant to Subdivision E, s 70NEA(3), where no court has previously made an order imposing a sanction in respect of a contravention of the primary order by the respondent and the court is satisfied that it is more appropriate for the contravention to be dealt with under Subdivision E then the balance of the Subdivision applies, including s 70NEB which sets out the powers available to the Court to deal with the contravention. Further, pursuant to s 70NFA(4), the provisions of Subdivision F do not apply if the Court is satisfied that it is more appropriate for the contravention to be dealt with under Subdivision E.

1. In this case, the submissions of the father are, in my view, of some relevance in determining which Subdivision of Division 13A is to be applied. The father submitted the mother should not be subjected to a “penalty” that would impact upon the child and that she should be ordered to do a parenting orders course. The only power to order a parent to attend a parenting program is contained in s 70NEB(1) of Subdivision E. Consequences that could be regarded as more “penal” in nature rather than in any way remedial, such as ordering the parent who has contravened to undertake community service, pay a fine or serve a term of imprisonment, are only available under s 70NFB (1) of Subdivision F. The use of those powers requires a finding that the parent who has contravened has behaved in a way that showed serious disregard of her obligations under the primary order, a lack of satisfaction that it is more appropriate to deal with the contravention under Subdivision E and satisfaction, beyond a reasonable doubt that all of the grounds for making such an order exist.[1]

[1]        See s 70NFA(1), (2), (4); s 70NFB(2)(a),(d),(e); s 70NAF(3) and Dobbs & Brayson [2007] FamCA 1261

1. In Elspeth & Peter; Mark & Peter; and John & Peter [2007] FamCA 655 the Full Court discussed what might be seen as constituting a serious disregard of obligations under an order. In that decision the Full Court discussed a number of first instance decisions in which the question had been considered and, at paragraph 66, said:

What seems to be the common thread is that the more serious sanctions should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order. Mere passivity on a first breach does not appear to be sufficient to attract the more stringent sanctions set out under subdivision F.

1. I am satisfied in this case that the mother’s contraventions of Kent J’s primary Order were pursuant to a refusal on her part to comply with the obligations imposed upon her by the Order in circumstances where she simply disagreed with the determination of the trial judge and did not approve of the parenting Order that he made. The mother did not appeal the Order. She did not seek to stay the Order pending an appeal. She did not seek to vary the Order by any further application filed. She just did not comply with it for her own reasons and I have already determined that those reasons did not constitute a reasonable excuse for the contravention.

2. Generally, that satisfaction might be considered enough to also be satisfied that the mother’s behaviour showed a serious disregard for her obligations under the primary Order. However, having heard the father’s submissions, having considered all of the evidence that was before me, having considered the powers available to the Court under the various Subdivisions of Division 13A and the standard of proof required in order to use the more “penal” sanctions, and having considered the parties’ competing submissions in respect of orders that should be made pursuant to s 70NBA, I consider it more appropriate for the mother’s contravention to be dealt with pursuant to Subdivision E of Division 13A.

3. Having regard to all of those matters mentioned in the previous paragraph, and most particularly, in light of the orders I intend to make pursuant to s 70NBA, I consider it appropriate to make an order that the mother attend a post-separation parenting program. I will make an order that obliges the mother to seek out such a course through her nearest Family Relationships Centre and to enrol in and complete such a course within six months and to provide evidence in writing of the completion of such a course to the Court and the father as soon as she has completed it.

4. I am conscious of the fact that s 11E of the Act requires me to consider seeking the advice of a Family Consultant as to the services appropriate to the needs of the mother and the most appropriate provider of the services before making such an order. I did not seek such advice, already quite satisfied in this case that having the mother do a post-separation parenting orders course that she is directed to through her nearest Family Relationships Centre is an appropriate course. I doubt that participation in such a course will change the mother’s views, but as well as giving the father the comfort that the mother will be doing such a course, it is to be hoped that she may just develop some valuable insight into the role she has played in the family’s current circumstances.

Should there be a variation to the 2013 primary Order?

1. The burdens of the office held by a Judge of this Court could scarcely be more readily understood than on an appreciation of the circumstances presenting in this case.

2. This is a case where in 2013, after a long trial, in a carefully considered judgment, a Judge of this Court determined that the child would not be at an unacceptable risk of sexual abuse in his father’s unsupervised company, despite the mother’s case that he would be. Notwithstanding that determination, that Judge made parenting Orders providing for the child to spend time with his father, albeit under professional supervision. The child has spent virtually no time with his father since then despite those Orders and now, two years later, there has been a determination that the mother contravened those Orders without reasonable excuse.

3. Notwithstanding those facts, the child, who is now 12 years old, told a Family Consultant in this registry in January of this year in absolute and resolute terms that he did not want to see his father anymore because his father had sexually and physically abused him as a younger child. The Family Consultant reported that the child expressed “a strong and adamant desire to never spend time with his father” and that he holds a firm belief that his father has abused him sexually and physically. The child told the Family Consultant that he hoped that professionals involved with the Court would listen to him this time so he would not have to be interviewed for Family Court related matters again. He told the Family Consultant that if he was ordered to continue seeing his father, he would run away or just walk out of the room. The child was persuaded by the Family Consultant to meet with his father in her presence and when he did, the child confronted his father, accused his father of having sexually abused him and demanded the father take responsibility for his actions.

4. The Family Consultant also reported having spoken to a clinical psychologist who has been seeing the child on referral from his GP. That psychologist is reported to have told the Family Consultant that the child has made “very clear and consistent disclosures” to her and that she was in no doubt that he had been sexually abused.

5. In what I consider to be a very careful and well balanced consideration of the matter, the Family Consultant expressed the opinion that the child’s “complete and adamant refusal to see his father” is concerning, especially in the context of an apparent good and positive relationship and attachment prior to the child’s development of his current views. She went on to observe that regardless of any determination about the abuse or the nature of the relationship dynamics that the child has with his parents, that his “reality” is that he has been abused by his father and now his “development, views and thoughts are centred on what appears to be an ingrained belief”. The Family Consultant concludes:

   Regardless of the ‘truth’, [the child’s] truth is that his father has abused him and on this basis he refused to have a relationship and spend time with him.

6. The Family Consultant observed that the nature and complexity of the presenting issues and her opinion that each parent had a limited capacity to facilitate the child having a meaningful relationship with the other parent, means that:

   [T]he only viable and workable parenting arrangement is one where [the child] lives with one parent who has sole parental responsibility and where his relationship with the other parent is effectively non-existent.

7. The Family Consultant expresses the opinion that a change of residence for the child, in accord with the father’s submissions, would necessitate a complete re-working of the child’s beliefs, his values, his personality structure and framework and a complete breakdown and re-working of his relationship with his mother.  She goes on to observe that this would be a very significant emotional task, fraught with considerable risk to the boy’s emotional stability and overall psychological well-being. She observes that the boy is now at a sensitive age and developmental stage – pre-adolescence – where he requires “solid and predictable emotional support and structure from trusted adults with whom [he has] a secure and strong relationship.”

8. The Family Consultant says that she doubts and has strong reservations about whether the child could now successfully transition from his mother’s care to his father’s care and at the same time undergo “a complete reworking in his emotional reality” and the narrative of what he has been exposed to that has significantly formed and influenced his beliefs.

9. The Family Consultant pointed out that the child remaining with the mother is also fraught with difficulties and dilemmas. She said that it will mean that his negative perception of his father will continue to grow and his belief that his father has abused him will be enhanced. She said that this will cause “perhaps irreparable damage” to the child-father relationship but she hastened to point out that such damage has already occurred in any event.  She pointed out that the child appears to be thriving in key areas such as school and friendships, which supports a view that his emotional needs are being addressed and met.

10. The Family Consultant considered a continuation of supervised time for the child with his father, but she expressed views that this was unlikely to provide any meaningful solution. She then went on to discuss the option of ceasing time between the father and the child completely. She acknowledged that would be in accord with the child’s own views. She acknowledged that would “certainly cement the destruction of the child-father relationship, at least on a short to medium term basis”. However, she expressed the view that forcing the child to spend time with his father is likely to result in further emotional anguish and that by giving the child the space and the freedom to grow and develop without the burden of the conflict and the competing allegations, the child might be actually placed in a better position where he can enjoy a “relatively calm and stress-free period of time before he enters adolescence. The Family Consultant said in her report and also in her oral evidence that this might indeed result in the child feeling comfortable enough to seek his father out later in his life.

11. The father, clearly unhappy with the opinions of the Family Consultant, cross-examined her for some time at the hearing before me. His questioning of the report writer was respectful and polite. It was probing and challenging. However, the report writer, clearly mindful of the difficulties her opinions and recommendations present for the father, nevertheless maintained her expressed position.

12. I have no reason not to accept the opinions of the Family Consultant. I was quite satisfied that she observed and properly considered the nature of the relationship between the child and the mother and the way in which the mother deals with the child. Whilst the Family Consultant raised a few issues that gave her a little cause for concern about the mother’s dealings with the child, overall she assessed their relationship as appropriate, with the mother being a caring, sensitive parent. Her ultimate recommendations were made against this backdrop.

13. At this stage in the dynamics of this family and their interaction with this Court and its processes, notwithstanding having determined that the mother contravened the Court’s primary parenting Order, I remind myself that the s 60CA mandatory requirement to regard the best interests of the child as the paramount consideration applies to determining the issue of a variation to that order. In doing so, I do not consider that I should now be revisiting the factual issue of whether or not the child was sexually and physically abused by his father. It is rather now a case of determining whether the existing ordered arrangements for this 12 year old boy’s parenting are in his best interests.

1. I consider that the views of the 12 year old boy, clearly and resolutely expressed to the Family Consultant, should, in all of the circumstances, be given much weight in the process of determining this matter. Also accepting the opinions of the Family Consultant as I do, I consider that the child, at this important stage of his development, needs respite from the parental dispute and a secure and stable environment in which to grow into adolescence. I am satisfied, despite some concerns I hold about the mother’s position in the whole dispute, that living with her provides him with that security and stability and that the respite he needs is able to be provided by a discharge of Orders requiring him to spend time with and to communicate with his father.  I also accept the other recommendations of the Family Consultant as being consistent with the child’s best interests and my Orders will reflect that acceptance.

2. I  am also satisfied that it is in the child’s best interests for the father to know where he attends school and for the father to be able to obtain from the school information that parents of students at that school are usually provided with by the school. My Orders will oblige the mother to keep the father informed as to a postal address to which he can send letters, cards and presents to the boy and as to the school the child attends.

3. I make the Orders set out at the commencement of these reasons.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 12 October 2015.

Associate:

Date:  12 October 2015