George & George (No 4)
[2024] FedCFamC1F 539
•13 August 2024
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)George & George (No 4) [2024] FedCFamC1F 539
File number(s): BRC 4444 of 2020 Judgment of: HOGAN J Date of judgment: 13 August 2024 Catchwords: FAMILY LAW – CONTRAVENTION – Where the Applicant seeks to prosecute a number of alleged contraventions – Where three of those alleged contraventions were abandoned at the hearing – Where six counts of alleged contravention remain – Where the Applicant has not discharged the onus of establishing that the Respondent intentionally failed to comply with the Order or made no reasonable attempt to comply with the Order – Where both Applications are dismissed Legislation: Family Law Act 1975 (Cth) Division: First Instance Number of paragraphs: 52 Date of hearing: 8 August 2024 Place: Brisbane Counsel for the Applicant: R. Micairan Solicitor for the Applicant: Hofstee Lawyers Counsel for the Respondent: P. Trout Solicitor for the Respondent: Browns Lawyers ORDERS
BRC 4444 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GEORGE
Applicant
AND: MS GEORGE
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
13 AUGUST 2024
THE COURT ORDERS THAT:
1.The Application – Contravention sealed 24 April 2024 is dismissed.
2.The Application – Contravention sealed 21 May 2024 is dismissed.
IT IS NOTED THAT:
1.At the commencement of the hearing on 8 August 2024, the Applicant withdrew Counts 6, 7 and 8 of the Application – Contravention sealed 21 May 2024.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym George & George has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J:
On 11 August 2023, following a seven day trial, Howard J made final parenting orders (the August 2023 orders).
By way of broad overview, the August 2023 orders:
(a)accorded the mother sole parental responsibility for the parties’ two children: X, born 2012, and Y, born 2015; and
(b)required the children to move from living with the father to living with the mother; and
(c)provided that, for six months thereafter, the children spend no time and have no communication with the father, following which they spend supervised time with him on a weekly basis for 12 months and then, spend unsupervised time with him – initially during the day each Saturday and, after three months, from after school Friday until before school Monday each alternate weekend and during school holidays at times to be agreed in writing between the parents.
By applications filed on 24 April 2024 and 21 May 2024, the father alleged that the mother contravened particularised aspects of the August 2023 orders.
When the hearing commenced, Counsel for the father advised that Counts 6-8 inclusive of the application filed 21 May 2024 were withdrawn.
Consequently, the allegations of contravention which remained for determination were that:
(a)in breach of Order 13: at 9.00 am on 14 August 2023, the mother, without reasonable excuse, failed to engage with and attend upon a psychologist or mental health social worker experience in complex family law disputes;[1] and
(b)in breach of Order 9(a): at 8.30 am on each of 13 April 2024, 20 April 2024, 27 April 2024, 4 May 2024 and 11 May 2024, the mother, without reasonable excuse, refused to allow the children to spend time with the father.[2]
[1] Application – Contravention sealed 24 April 2024.
[2] Application – Contravention sealed 21 May 2024, Counts 1 to 5 inclusive.
The alleged contravention of order 13 of the August 2023 orders
Order 13 of the August 2023 orders is as follows:
13. The mother shall commence to attend on a psychologist or mental health social worker experienced in complex family law disputes, as soon as possible, for child guided parent therapeutic support with respect to the implementation of these orders and the children’s coming into the mother’s care, and the mother is requested to engaged the said practitioner in the week commencing 14 August 2023 and at any time thereafter pursuant to the child guided therapy work, which is NOTED permits the practitioner to conduct consultation with the children.
The evidence in the father’s case to support the sought findings that the mother intentionally failed to comply with order 13 of the August 2023 Orders or made no reasonable attempt to comply with the same[3] is that:
(a)between 11 August 2023 and 4 April 2024, the mother did not advise him as to whether she had engaged and/or attended upon a psychologist or mental health social worker;[4] and
(b)on 4 April 2024, the father contacted the mother’s legal representatives to request the name of the psychologist or mental health social worker and asked if she had complied with the order, and received no response to that query;[5] and
(c)on 10 April 2024, the father asked that the mother advise him whether she had complied with the order and received no response to such request.[6]
[3] Family Law Act 1975 (Cth), s 70NAC(1).
[4]Affidavit of the father filed 24 April 2024, paragraph 10.
[5]Affidavit of the father filed 24 April 2024, paragraph 11.
[6]Affidavit of the father filed 24 April 2024, paragraph 12.
Whilst it was accepted on behalf of the father that nothing in the August 2023 order requires the mother to advise him of the name of the practitioner upon whom she has attended, it was submitted that the Court would infer, from her failure to respond to these requests for information, that she had intentionally failed to comply with the requirement that she commence to attend on a psychologist or mental health social worker experienced in complex family law disputes, as soon as possible.
I am not persuaded that I can safely infer from the mother’s failure to answer the father’s requests that she has failed to comply with the requirement that she attend upon a person falling within the category of persons described in the August 2023 order: the findings expressed in the Reasons for Judgment delivered by Howard J provide, to my mind, reasonable bases for the mother’s clear desire to limit the information provided to the father and it is within such a context that the assessment of the evidentiary significance of the mother’s failure to respond to the father’s requests must take place – it is within this context that the Court is required to assess whether the failure to respond can safely be used as the basis for inferring that the mother intentionally failed to comply with the requirements imposed upon her by Order 13 or made no reasonable attempt to comply with the same.
Given the findings expressed in the Reasons for Judgment delivered by Howard J, I am not persuaded that the inference sought by the father is the only rational inference for the mother’s decision not to respond to his request for information and I consider that the evidence reasonably admits of a different conclusion; I decline to draw the inference sought.
Given this, I am not persuaded that the father has discharged the evidentiary onus of establishing that the mother intentionally failed or made no reasonable attempt “to commence to attend on a psychologist or mental health social worker experienced in complex family law disputes, as soon as possible, for child guided parent therapeutic support with respect to the implementation of these orders and the children’s coming into the mother’s care”.
The alleged contraventions of order 9(a) of the August 2023 order
Order 9(a) of the August 2023 order is as follows:
9. Following the completion of the six (6) month period referred to in order 6 herein, the children shall commence to spend time and communicate with the father as agreed between the parties and otherwise as follows:
(a) Supervised time facilitated by either [U Contact Centre] or [V Contact Centre] or such other professional service (but not [W Contact Centre]) to be nominated by the mother to the father in writing no less than five (5) months subsequent to the date of these orders, on each Saturday for up two (2) hours, for a period of twelve (12) months, and
The father’s evidence included that, at 8.30 am on each of 13 April 2024, 20 April 2024, 27 April 2024, 4 May 2024 and 11 May 2024, he was at the address of U Contact Centre (the Centre) but the mother did not attend with the children at that time – consequently, it was submitted, the Court would be persuaded that, on each of these occasions, the mother failed to comply with order 9(a) of the August 2023 Orders or made no reasonable attempt to comply with the same.[7]
[7] Family Law Act 1975 (Cth), s 70NAC(1).
The father’s evidence
The father’s evidence when cross-examined included, in essence, that:
(a)he accepted it was clear from the Centre correspondence dated 23 March 2024 that it would not facilitate his supervised time with the children on 30 March 2024 or any Saturday thereafter and that, instead, they had offered to provide supervision over his time with the children each Tuesday afternoon; and
(b)he had received a copy of correspondence dated 28 March 2024 from the Centre in which it advised, amongst other things, that it was no longer able to supervise time on Saturday, 30 March 2024 or on any Saturday thereafter; and
(c)the Centre had told him that it wanted to suspend his supervised time with the children; and
(d)while the Centre correspondence took issue with aspects of his conduct at the Centre, this was the consequence of information provided to it by the mother and/or her solicitor – although he accepted that: he had taken gifts for the children (although he disputed the characterisation of the same as “abundant”); he had Facetimed his parents individually during his supervised time with the children; his father had made a comment before he stopped him from saying more; he had provided letters to the children (although he disputed that he had done so in a secretive manner and said that he had given the letters to the children in front of the supervisor); and
(e)on the morning of 13 April 2024, he knew that there was no contact between him and the children scheduled by the Centre (as this had been communicated to him by the Centre) and that no time had been booked with the Centre and that it was not going to facilitate his time with the children on that day but, despite that knowledge, he attended at the Centre in any event – he also said that, on that day, the Centre would not allow him to enter the premises and that, after he had attended at the Centre, he had gone to police to make a complaint on the basis that he was feeling coercively controlled; and
(f)the Centre had not organised to supervise time between him and the children on 20 April 2024, 27 April 2024, 4 May 2024 or 11 May 2024 and there were no scheduled appointments on any of those occasions; and
(g)as soon as he entered into a new agreement with the Centre in terms acceptable to the Centre, his supervised time with the children had resumed and was currently occurring on Saturdays as provided for in the August 2023 order – this had been the case since 30 May 2024.
The documentary evidence
I accept that the various documents, including email and other written communications, in evidence, relevantly establish that which is summarised below.
On 11 January 2024,[8] the father signed a supervised visit agreement with the Centre.[9] On 15 February 2024, the mother signed a supervised visit agreement with the Centre.[10]
[8]Although the date is “11 January 2023”, I accept that this is a typographical error and that the date was in fact 11 January 2024.
[9] Exhibit 1, pages 11-14.
[10] Exhibit 1, pages 7-10.
On 22 February 2024,[11] the mother’s solicitor emailed correspondence to the Centre, albeit that the correspondence is not included with the email in evidence.[12]
[11] At 10.09 am.
[12] Exhibit 1, page 3.
On 23 February 2024:
(a)a Centre employee forwarded this correspondence to Ms NN (the Centre’s Director)[13] and confirmed that:
[13] At 9.35 am.
(i)during a previous supervised visit, the father had Facetimed the paternal family without asking for permission to do so and the paternal grandfather had made a comment about the proceedings during the call, at which time the father had redirected the conversation; and
(ii)when she spoke with the father during his intake session, he had agreed that he was planning on attending alone (or with his carer); and
(iii)when another staff member spoke with him that morning, the father had advised that, having thought it through, he would not bring paternal family members to the next visit.[14]
[14] Exhibit 1, pages 2-3.
(b)Ms NN forwarded the above email to the mother’s solicitor[15] and confirmed that the father had been encouraged by staff to focus on spending time with the children without others: she stated, in essence, that whilst the Centre would continue to encourage him to spend time with the children alone, it did not have the authority to preclude him from speaking to people or bringing others to the Centre unless this was agreed by the parents or stated in a Court order; she confirmed that close supervision of the children was provided and they were never alone with the father.[16]
[15] At 10.09 am.
[16] Exhibit 1, pages 2.
(c)the mother’s solicitor emailed Ms NN[17] to advise, in essence, that:
[17] At 1.44 pm.
(i)they considered the supervisors had no control over and could not properly supervise discussions between third parties and the children during supervised visits; and
(ii)the Court orders provided that the paternal family have no contact whatsoever with the children for six months – no order provided that, after this time, the children spend time with them or communicate with them by video-chat; further, the Court orders provided that the paternal family not attend the children’s school so, effectively, there was to be no contact between the paternal family and the children for 18 months; and
(iii)the mother had, in the previous few days, complained to police about the paternal grandfather visiting her work and harassing her there and the police had warned him to stay away; and
(iv)the Court had expressed significant, serious concerns and criticisms about the father in its Judgment, which had resulted in it making specific and restrictive orders against him and his family; and
(v)the supervisors had a duty of care to the children and, in the circumstances, communications between the paternal family and the children should not be permitted; and
(vi)they disagreed with the assertion that the Contact Centre could not preclude the father from bringing others to the supervised visit.[18]
[18] Exhibit 1, pages 1-2.
(d)the Independent Children’s Lawyer emailed the mother’s solicitor and Ms NN[19] to advise that:
(i)she had been appointed as the Independent Children’s Lawyer in the matter; and
(ii)the orders provided for the children to spend supervised time with the father at the Centre and did not permit him to vary or interfere with that by facilitating communication or time during the visits with any other persons, particularly where the mother had not consented; and
(iii)the orders provided for the children’s time with the father and not third parties; and
(iv)the supervision in this matter should be vigilant so as to guard against the significant risk to the children of emotional harm resulting from the father and paternal family seeking to undermine the children’s relationships with their mother; and
(v)the father and paternal family had been found at trial to lack insight into the need of the children to have a relationship with their mother – which had caused significant harm to the children – which is why orders were made which required the father to engage in counselling to support the children’s relationship with their mother.[20]
(e)Ms NN emailed the mother’s solicitors[21] to advise that, whilst it was not her view that it was appropriate for the father to engage others in his visits with the children, she considered the difficulty to be that the orders did not state that others could or could not have contact with the children; she advised, amongst other things, that she had asked the Independent Children’s Lawyer for direction and would implement any rules directed by the Independent Children's Lawyer, and that the Centre did not have any view about the appropriateness of orders and their role was limited to complying with Court orders; she also advised that, if the parties and/or the Independent Children's Lawyer agreed that the intention of the orders was that the children not have any contact with members of the paternal family during the father’s supervised time, the Centre would implement such a condition.[22]
(f)one of the Centre’s employees emailed the father[23] to advise that Ms NN had advised that all future supervised visits between the father and the children would be subject to the following additional conditions – the father was not permitted to: bring any other persons to the visit; discuss the paternal family and needed to promptly redirect any conversations initiated by the children; pass on any messages, letters, cards or gifts from the paternal family; and engage the children in any telephone or video calls with a third party.[24]
[19] At 2.16 pm.
[20] Affidavit of the father filed 21 May 2024, annexure MRG-16 at pages 52-53.
[21] At 2.22 pm.
[22] Exhibit 1, page 1.
[23] At 3.15 pm.
[24] Affidavit of the father filed 24 April 2024, annexure MRG-3 at page 15.
On 11 March 2024, the mother emailed the Centre to advise that, for the previous two weeks, the children had returned from their supervised time with the father with letters from him: she said that, on 2 March 2024, they returned with a letter, a notebook and a pack of envelopes each and that, on 9 March 2024 (whilst they had told her that they were not allowed to bring anything home with them from the visit and had spoken about a t-shirt and snacks the father had given them which they were not allowed to bring home), she had noticed that each of them had brought a letter home with them; she expressed concern that the children had lied to her and said she did not see the necessity for the father to send letters home with them, particularly in secret – she asked for the Centre’s thoughts and suggestions about how this issue could be resolved.[25]
[25] Exhibit 1, page 6.
On 13 March 2024, a solicitor engaged by the father emailed the Centre[26] on his behalf.[27]
[26] Affidavit of the father filed 24 April 2024, annexure MRG-6 at page 23.
[27]I note that, whilst the email referred to attached correspondence, this was not attached to the father’s affidavit.
On 14 March 2024, one of the Centre’s employees advised the mother in writing that, in essence, she had confirmed that, during the children’s 9 March 2024 visit with the father, he had been told that the Centre would not facilitate him giving further items to the children; the employee also confirmed that staff had not seen the children receive any letters during the two previous visits with the father, so any correspondence provided to the children had happened without their knowledge – the mother was also advised, amongst other things, that the Centre had decided not to allow items to be given to the children for them to take home and that the father would be advised of this.[28]
[28] Exhibit 1, pages 5-6.
On 15 March 2024, Ms NN emailed the father’s solicitor and, having referred to the 13 March 2024 correspondence, outlined a number of matters, including (in essence) that:
(a)she had made the decision that the supervised visits between the father and the children were only for them – she noted that, during the father’s intake session, he had informed the Centre that no other persons would be in attendance (unless he required his carer); and
(b)she had been made aware that the father had hidden items on the children or in their belongings and had therefore directed her staff to inform him that they would not facilitate the passing of items between the parents in the future; and
(c)she requested the father attend to his toileting needs in the bathroom, which would remove the necessity for the supervisor to remove the children from the room and eliminate any allegations being made that he had placed items in the children’s bags; and
(d)if the parents agreed and members of the paternal family wished to use its services, the Centre could facilitate the children attending separate supervised visits with the paternal family members; and
(e)she would not allow the service to be used by any party to leverage their position and would consider any information she believed relevant when making decisions for the children to attend the Centre.[29]
[29] Affidavit of the father filed 24 April 2024, annexure MRG-6 at pages 22-23.
On 16 March 2024, the mother’s solicitor advised the father’s solicitor, amongst other things, that his instructions were that the mother would not, under any circumstances, consent to the paternal grandparents attending any supervised visit between the children and the father and, if they attended with him, she would immediately suspend the visits. It was also contended that the father had already seriously breached the Centre’s rules.[30]
[30] Affidavit of the father filed 24 April 2024, annexure MRG-13 at page 41.
On 19 March 2024:
(a)the mother emailed the Centre to advise that, having reflected on a telephone conversation which had occurred on Thursday, she wanted to change the children’s supervised visits to a week day afternoon because she liked the idea of having more supervision; she asked the Centre if it could accommodate Tuesday afternoons and advised that the children’s school was happy for them to leave school earlier that day so they could attend a 3.30 pm session;[31] and
(b)the father’s solicitor wrote to the Centre to ask for copies of all supervision notes in respect of the father’s visits with the children.[32]
[31] Exhibit 1, page 5.
[32] Affidavit of the father filed 24 April 2024, annexure MRG-7 at page 25.
On 25 March 2024:
(a)the mother emailed the Centre[33] to follow up her email of 19 March 2024 about the potential to change the children’s supervised visits with the father to Tuesday afternoon: she added that doing so would allow X to play sport and give her the ability to work on Saturdays if required;[34] and
(b)a Centre employee emailed the mother[35] to advise that Ms NN would provide correspondence to the parent’s legal representatives the next day about changing the supervised visits to Tuesday afternoon – she also advised that she had changed the Centre’s schedule to accommodate such a change in the future so that X could participate in sport.[36]
[33] At 11.41 am.
[34] Exhibit 1, page 5.
[35] At 5.12 pm.
[36] Exhibit 1, page 4.
On 26 March 2024, the father’s solicitor wrote to the Centre to reiterate the request for the notes relating to the father’s supervised time with the children; she also asked that arrangements be made for the father to spend supervised time with the children outside of the Centre during the upcoming Easter weekend visit and noted that the Agreement (dated 11 January 2023)[37] provided that that parents and children may leave the Centre, accompanied by a supervisor, to access nearby shops.[38]
[37] As noted earlier, clearly misdated.
[38] Affidavit of the father filed 24 April 2024, annexure MRG-8 at pages 27-28.
On 27 March 2024, the mother’s solicitor wrote to Ms NN to confirm that the father had not sought the mother’s consent to his proposal for the children to spend supervised time away from the Centre on Easter Saturday; he also conveyed that the mother did not consent to any variation of the orders and did not agree to the father taking the children out of the Centre for any purpose.[39]
[39] Affidavit of the father filed 24 April 2024, annexure MRG-9 at page 30.
On 28 March 2024:
(a)the father’s solicitor emailed Ms NN[40] to ask for an update about his proposal that the children spend time with him away from the Centre; she also noted that, notwithstanding the correspondence from the mother’s solicitors, given that nothing in the orders prevented supervised time occurring away from the Centre and, save for changeovers, nothing in the orders expressly required the supervised time to occur in the Centre, it was a matter for the Centre’s discretion – she also asked whether a supervised visit to the park or shopping centre would be permitted for the coming Saturday;[41] and
[40] At 12.48 pm.
[41] Affidavit of the father filed 24 April 2024, annexure MRG-10 at p 32.
(b)Ms NN advised the father’s solicitor[42], amongst other things, that:
[42] Affidavit of the father filed 24 April 2024, annexure MRG-11 at p 34-36.
(i)the Centre was no longer able to facilitate the visit on Saturday, 30 March 2024 and was no longer able to provide the father with supervised visitations on a Saturday in the future – but could offer each Tuesday afternoon from 3.30 pm to 5.30 pm; and
(ii)given the ongoing issues related to the father’s visits with the children, the new time offered allowed the Centre to have more oversight during the visits, with the intention of mitigating further concerns; and
(iii)it was clear that the father disregarded Centre policies and conditions in his visits with the children and, whilst it was not usual to impose conditions on all of their clients, the father continued to behave in a deceitful manner which impacted the Centre staff, its reputation and his children – if he had behaved in an honest and respectful manner that focused on spending quality time with the children, it was likely that none of the further restrictions would have been imposed by the Centre; and
(iv)whilst the Centre hoped to continue to provide a familiar environment to the children, she would have to reconsider its ability to provide supervision if the father could not abide by its rules; and
(v)the service had documented the following concerns about the father’s time with the children on the following occasions:
(A)on 17 February 2024 – he brought an abundance of gifts for the children, Facetimed the paternal family (who made inappropriate statements to the children about the Court process), told the children he was living with the paternal grandfather and that he had bedrooms set up for the children, and referred to the mother by her first name; and
(B)on 24 February 2024 (and despite an email having been sent to the parents on 23 February 2024 imposing imposed restrictions about, amongst other things, not passing on letters, cards or gifts) – he provided letters to the children without the supervisor’s knowledge and brought gifts along and became frustrated in front of the children when told they could not take them home; and
(C)on 2 March 2024 – he tried to have a discussion with the children about the paternal grandparents and became argumentative and challenging when told to redirect the conversation; and
(D)on 16 March 2024 – he brought gifts for the children and, at the end of the visit, gave each one an envelope and said there was a card inside, which then had to be retrieved from the children in a manner that upset them; and
(vi)if the father wanted to meet to discuss the contents of the letter or have her explain her decision making and expectations further, he should contact her office and arrange a time.
On 1 April 2024:
(a)the father emailed the Centre[43] to advise that he would not attend the visit at 3.30 pm the next day and that his lawyers would contact them tomorrow to advise of this as well;[44] and
(b)an employee of the Centre emailed the mother[45] to advise that the father had told the Centre that he would not attend the visit scheduled for 3.30 pm on Tuesday afternoon and that the Centre would receive correspondence from his legal representatives tomorrow – she also advised the mother that she would tell her if the Centre was scheduling any further visits once it received some clarification.[46]
[43] At 1.09 pm.
[44] Exhibit 1, page 4.
[45] At 3.44 pm.
[46] Exhibit 1, page 4.
On 2 April 2024:
(a)the father emailed Ms NN[47] to advise that:
[47] At 1.37 pm.
(i)he did not agree to his supervised time with the children happening on Tuesdays because this deviated from the orders, which stipulated that he see the children every Saturday for two hours – and he thought it was in the children’s best interests not to deviate from the orders; and
(ii)he understood, from the Centre’s 28 March 2024 correspondence, that it could not facilitate the children spending time with him on Saturdays, noting that the Centre had cancelled his time on Easter Saturday and the subsequent Saturdays; and
(iii)he was making arrangements with the mother to attend a contact centre that could facilitate the children spending time with him on Saturdays;[48] and
(b)Ms NN emailed the father[49] to advise, amongst other things, that:
(i)it was not the case that the Centre could not facilitate supervised visits on Saturday – rather, it was his inability to adhere to their requirements (as set out in the 28 March 2024 correspondence) which had resulted in it offering an alternate day and time for his supervised time with the children; and
(ii)the Tuesday time allowed the service to have additional line supervisors available if the need arose, which was not the case on weekends; and
(iii)although the Centre was prepared to continue to supervise more positive interactions and outcomes, he was within his rights to cease using its services.[50]
[48] Exhibit 4.
[49] At 6.23 pm.
[50] Exhibit 4.
On 3 April 2024:
(a)the mother’s solicitor emailed Ms NN[51] to confirm, amongst other things, that the mother would be in contact with the Centre in relation to arrangements for the following Tuesday’s visit; the solicitor also asked the Centre not to act on the father’s unilateral representations about alleged agreements with the mother;[52] and
(b)Ms NN emailed the mother’s solicitor[53] to confirm that the Centre would wait to hear back from the parents to confirm the visit for Tuesday, 9 April 2024;[54] and
(c)the father emailed the mother’s solicitor and Ms NN[55] to advise that he did not agree to changing the supervised visits to Tuesdays or to deviating from the orders;[56] and
(d)Ms NN emailed the father[57] to advise that she would leave it to the parents to discuss and inform the Centre about any future arrangements.[58]
[51] At 8.50 am.
[52] Exhibit 2, page 17.
[53] At 9.00 am.
[54] Exhibit 2, page 17.
[55] At 9.14 am.
[56] Exhibit 2, page 15.
[57] At 9.26 am.
[58] Exhibit 2, page 15.
On 5 April 2024:
(a)a Centre employee emailed the father and the mother’s solicitor[59] seeking confirmation about whether the parents were progressing with supervised visits each Tuesday (from 3.30 pm to 5.30 pm) – the email noted that:
[59] At 11.14 am.
(i)the father had telephoned the Centre on 4 April 2024 asking for a visit between 8.30 am and 10.30 am on Saturday; and
(ii)the slot the Centre had to facilitate the father’s supervised time with the children was each Tuesday, from 3.30 pm to 5.30 pm; and
(iii)the Centre knew the father preferred Saturday morning and did not agree to changing the day on which his supervised time with the children would occur; and
(iv)the Centre knew that the mother had said she wanted to maintain weekly visits and was able to do so in accordance with the Centre’s availability; and
(v)Ms NN had decided that the Centre had availability to facilitate a visit on Tuesday afternoons (for the reasons expressed in previous correspondence) but she would reconsider the visits returning to Saturday (if time then was available) if the father could demonstrate, over a number of visits, that he would comply with the Centre’s policies and staff directions and that he did not require oversight by senior staff during visits.[60]
[60] Exhibit 2, page 15.
(b)the mother’s solicitor emailed the Centre employee:[61]
(i)to advise that the mother preferred that the children’s supervised visits with the father remain on Saturday (rather than Tuesday as suggested); and
(ii)asked if the Centre could advise if this could be accommodated; and
(iii)noted that it was understood that the father did not agree to supervised visits happening on Tuesdays and had proposed that the visits occur on a Saturday at a different contact centre; and
(iv)advised that the mother would prefer to remain with the Centre, which she had chosen in accordance with the orders.[62]
(c)the Centre employee emailed the mother’s solicitor[63] to advise that she had discussed the matter with Ms NN, who had said she would consider re-establishing visits on a Saturday but did not agree to this occurring until she had an opportunity to meet with the father (which would not be able to occur before the next day) – it was also conveyed that Ms NN had proposed that the father meet with her the following week and that, pending the outcome of their meeting, she would consider reinstating the Saturday visits starting on 13 April 2024.[64]
(d)the father emailed the Centre employee[65] to advise that he did not want to miss seeing the children on this Saturday (regardless of a meeting) – he said, amongst other things, that: he had already missed the previous Saturday for unexplainable reasons; whilst he appreciated the concerns that the allegations made against him had caused, such allegations were highly disputed; the children were being made available by the mother the following day and the Centre should advise whether there would be a session then; the orders did not permit the Centre to change the orders or to impose restrictive conditions about his time with the children but, even so, he had abided the same and would continue to do so;[66] and
(e)the Centre employee emailed the father[67] to reiterate that, for the reasons expressed in previous correspondence, Ms NN had asked to meet with him before she reconsidered the Centre providing supervised visits on Saturdays – she asked that he confirm his attendance for a meeting at 3.00 pm on Tuesday 9 April 2024, advised that there was an option for him to have a supervised visit with the children after this meeting and noted that, if he did not respond by the close-of-business on Monday 8 April 2024, the parties could assume that no visit would be scheduled for Tuesday, 9 April 2024.[68]
[61] At 11.34 am.
[62] Exhibit 2, page 14.
[63] At 12.56 pm.
[64] Exhibit 2, page 14.
[65] At 12.56 pm.
[66] Exhibit 2, pages 13-14.
[67] At 2.07 pm.
[68] Exhibit 2, page 13.
On 7 April 2024, the father emailed the Centre to advise, amongst other things and in essence, that:
(a)he had sought legal advice about the contents of the Centre’s 5 April 2024 email and would no longer be attending the meeting on Tuesday, although he would attend the next available Saturday session with the children on 13 April 2024; and
(b)he had been respectful to supervisors during all of the supervised visits and had followed the Centre’s guidelines, had actively and positively engaged with the children, was not under the influence of illicit substances and had not been rude or conflictual – he noted his first session on 17 February had been positive (despite him referring to the mother by her first name once and despite the comment made by the paternal grandfather, which she had said he acknowledged and rectified at the time) and asserted that the strict conditions imposed after the 22 February 2024 visit did not reflect the session notes but were, instead, the consequence of the mother’s undue influence on the Centre (either directly or via her lawyers) and the undue influence of the Independent Children’s Lawyer; he said the orders did not permit the appointed supervision centre to change the same or impose special, restrictive conditions over his time with the children; and
(c)he had paid for a supervised visit for Saturday 13 April 2024 and would make himself available to attend; and
(d)if the Centre could not facilitate him spending supervised time with the children absent conditions, he would seek a variation of the order and to change the Centre in his upcoming contravention application; and
(e)that they obtain immediate independent legal advice about the contents of this email.[69]
[69] Exhibit 2, pages 12-13.
On 9 April 2024, Ms NN emailed the father to advise, amongst other things and in essence, that:
(a)she was unable to take his requests any further than she already had; and
(b)the Centre had availability on Saturday, but his actions had required her to implement restrictions, given the Centre’s worker’s reputation, the Centre’s business reputation and to avoid any negative impact on the children; and
(c)she was prepared to change the visit day to allow him an opportunity to demonstrate adherence to the Centre rules; and
(d)it was intended that his supervised visits return to a Saturday timeslot; and
(e)if he wanted the supervised visit to return to Saturdays, they needed to meet (and that he was welcome to bring his legal representation to such a meeting); and
(f)he liaise with the mother or her legal representatives about his visits; and
(g)if he wanted to attend a supervised visit on a Tuesday afternoon, the Centre could be advised of this; and
(h)at that stage, no further visits were booked with the Centre.[70]
[70] Exhibit 2, page 12.
On 10 April 2024, the father emailed Ms NN to ask if she had any availability to meet with him on Friday so the Saturday supervised visits with the children could resume – he also undertook to abide by the Centre rules.[71]
[71] Exhibit 2, page 12.
On 11 April 2024:
(a)the father emailed Ms NN[72] and advised, amongst other things, that he would be at the Centre at 8.30 am on Saturday for his supervised visit with the children – he said that, as the Centre had required, he had made himself available to discuss the Centre’s rules before his next supervised visit and had undertaken to comply with the same; he asked that the Centre acknowledge his email and confirm the Saturday 13 April 2024 supervised visit;[73] and
(b)Ms NN emailed the father[74] to outline, amongst other things, that she was confused by his emails and what he was seeking – she said she thought she had been clear in her correspondence with him and said that:
(i)the Centre could supervise his visits with the children each Tuesday (from 3.30 pm to 5.30 pm) but, if he wanted the visits to return to Saturday, she needed to meet with him to discuss how and when that would happen; and
(ii)she would not revisit Saturday visits occurring until he met with her and attended supervised visits on Tuesday for a time to be determined – because, in essence, she was not prepared to continue having the issues they had encountered, and she would not have the Centre’s reputation called into question because of the behaviour of others; and
(iii)she accepted that the father had said he would adhere to the Centre rules, but she required him to demonstrate that before the visits reverted to Saturdays and, unless he was prepared to have visits occur on Tuesday afternoons and meet with her, she was unable to assist further.[75]
[72] At 4.38 pm.
[73] Exhibit 2, page 11.
[74] At 7.32 pm.
[75] Exhibit 2, page 22.
On 21 April 2024, the mother emailed Ms NN and:
(a)asked her whether the father had met with her at the Centre the day before because he had said in a parenting app message that he was at the Centre on Saturday; and
(b)advised that the father had made a report to the police station on Saturday that she had breached Court orders by not exchanging the children – she informed that a police officer had spoken with her and had said it was not a police issue, there was no substance to the apparent breach and that it would not be dealt with any further; and
(c)asked for Ms NN’s thoughts moving forward – she commented that she found it interesting that, when the second visit was moved to a Sunday, the father was fine with that; she also said she wanted the children to see their father as it had been four weeks; and
(d)asked if there was anything Ms NN could suggest or if it was possible to have extra supervision on a Saturday.[76]
[76] Exhibit 2, page 10.
On 22 April 2024:
(a)Ms NN emailed the mother[77] to advise that:
[77] At 9.30 am.
(i)the father had not attended a meeting with her as at that time (but had telephoned the Centre on Friday) and she intended to contact him that day; and
(ii)she was not aware if the father had attended the Centre on Saturday but, if he had, he did not interact with her or the staff; and
(iii)she understood that the mother wanted to facilitate visits between the father and the children but, as she (the mother) was aware, she (Ms NN) had offered the father supervised visits on Tuesday afternoons and she was not prepared to facilitate time on Saturdays until he could demonstrate adherence to Centre rules; and
(iv)given that there were no line supervisors on site on the weekend and to minimise further issues occurring, she had decided that a weekday afternoon (where senior staff were available) was more appropriate; and
(v)it was her intention that, all going well, the visits would revert to Saturday – whilst she had considered the option of having two supervisors present on a Saturday, she had decided against this given the size of the room and the message it may send to the children; and
(vi)she would let her know if the father agreed to attend visits on a Tuesday afternoon.[78]
(b)Ms NN emailed the father[79] to:
(i)apologise that she had not been available to speak with him on the previous Friday; and
(ii)advise that, if he been calling to arrange supervised visits for Tuesday afternoon, he should respond to her email and she would have the staff organise the same; and
(iii)advise that, if he had been calling to arrange to meet with her, he should provide her with some times that suited him and she would try to find a time that was suitable to them both; and
(iv)advise that she was unable to change the visit time to a Saturday until he attended a visit on a Tuesday and could demonstrate that he could adhere to the Centre rules.[80]
[78] Exhibit 2, page 9.
[79] At 9.30 am.
[80] Exhibit 2, page 8.
On 24 April 2024, the father emailed Ms NN to ask if she had any availability to meet with him the following day.[81] On 29 April 2024, Ms NN emailed the father to tell him that she could meet with him that afternoon.[82]
[81] Exhibit 2, page 8.
[82] Exhibit 2, page 7.
On 4 May 2024:
(a)Ms NN emailed a staff member and the father,[83] asking the father to confirm the accuracy of the balance of the contents of the email which were, in essence, that:
(i)she had spoken with him the day before and he wanted to resume spending supervised time with the children at the Centre and he had agreed to weekly afternoon visits, with a view to returning to Saturday visits; and
(ii)he preferred that the children not be removed from school early for afternoon visits and preferred to have visits on Monday and Wednesday afternoons, although he could make himself available on other days for a short time if visits on those days could not be accommodated; and
(iii)he would like to have two two-hour visits the following week because he had not seen the children for several weeks; and
(iv)he would like to refer to his family members in general conversations with the children (but agreed this would not include suggesting when the children would be able to see or talk to the same or discussing how much his family missed them) and would also like the visits to progress to occur outside the Centre and include visits to a coffee shop and/or the movies.[84]
(b)the father emailed Ms NN[85] to confirm that the contents of her email were correct – he also said he had realised that he and the mother had Court on the following Wednesday and Thursday so Monday, Tuesday or Friday would work best for the two weekday sessions.[86]
[83] At 11.11 am.
[84] Exhibit 2, page 6.
[85] At 12.05 pm.
[86] Exhibit 2, pages 5-6.
On 6 May 2024:
(a)the Centre employee emailed the father[87] to advise that:
[87] At 12.40 pm.
(i)she had spoken to the mother and she had agreed to bring the children to the Centre on Tuesday 7 May 2024 for a 3.30 pm visit, but she was unable to bring them for two one hour visits this week; and
(ii)when told about the father’s concerns about the children being removed early from school, the mother said she had already spoken with the school in case supervised time would happen on a weekday and the school would ensure there was minimal disruption to the children’s education – noting the arrangement was expected to be temporary; and
(iii)she would provide an updated Supervised Agreement to both parents to ensure all parties had the same understanding about what had been agreed.[88]
(b)the father emailed Ms NN[89] to advise he was happy for a two hour session on 7 May 2024 and he also:
(i)asked if, after this visit, the supervised time would occur on Saturdays; and
(ii)said that if the mother could not facilitate two visits, he would not agree to another session the following week and would like the Centre to facilitate time on Saturday regardless; and
(iii)queried how many weeks it would be before he would be able to leave the Centre with the children for park visits and asked whether there were any restrictions moving forward and, if so, the details of and bases for the same.[90]
[88] Exhibit 2, page 5.
[89] At 12.58 pm.
[90] Exhibit 2, page 4
On 7 May 2024, the mother signed a Supervised visit Agreement with the Centre in terms which specifically included a number of conditions with which the father was required to comply. These conditions included, in essence:
(a)only bringing gifts from himself (and not other family members) for the children on special occasions; and
(b)showing any cards brought for the children on special occasions to the supervisor to read before the children arrived; and
(c)understanding that there was no agreement in place for the paternal family to attend supervised visits and that the Centre could not facilitate this; and
(d)understanding that, unless agreement had first been reached between the parents, he was not to: telephone call, Facetime or initiate any communications with members of the paternal family during a visit, initiate discussions about paternal family members, make statements to the children about the paternal family missing them or wanting to see them, or give the children any cards, letters or written correspondence; and
(e)not making any comments to the children such as “we are not allowed to talk about that” during visits and using child-focused positive strategies or redirection if needed; and
(f)that he would refer to the mother as “Mum” or “Mummy” and not by her first name; and
(g)that he would not give the children any item without the supervisor’s knowledge or approval and would ensure that all interactions with the children were able to be fully observed by the supervisor; and
(h)understanding that staff do not give permission to be audio or video recorded on any occasion and that the Centre reserved the right to cease facilitating supervised visits at its discretion and that he would be informed of this in writing if it happened; and
(i)understanding that the visits would occur inside the Centre until the parents agreed otherwise; and
(j)that both parents acknowledged that the Centre reserved the right to amend the agreement at any time and that they would be required to sign any updated agreement before the next scheduled visit.[91]
[91] Exhibit 1, pages 25-29.
On 8 May 2024:
(a)the father emailed Ms NN[92] in terms which, amongst other things:
(i)sought clarification about whether the following week’s visit would be similar to that which had happened the day before; and
(ii)sought clarification about when he could leave the Centre with the children, given that everything there remained the same and Ms NN had earlier told him that no more than a few weeks supervision in a centre was good for children of the children’s ages; and
(iii)said he had taken advice about the condition the Centre had sought to impose over his supervised time with the children and advised that he would not sign a further agreement with such conditions, but would continue with the current agreement; and
(iv)sought that he be provided with copies of correspondence between the mother’s solicitor, the Independent Children’s Lawyer and the Centre into which he had not been copied between 17-23 February 2024.[93]
(b)Ms NN emailed the father[94] to advise him that he was required to sign a new Supervised Agreement in order to use the Centre’s services and that, whilst the Centre appreciated that he disagreed with these conditions, they were the bases on which the mother would make the children available to spend time with him at the Centre.[95]
(c)Ms NN forwarded the father an email[96] sent to her by the Independent Children’s Lawyer on 23 February 2024 and advised that this was the email from which she had taken direction when imposing restrictions on his visits with the children. [97]
[92] At 2.43 pm.
[93] Exhibit 2, pages 4-5.
[94] At 4.38 pm.
[95] Exhibit 2, page 3.
[96] At 4.46 pm.
[97] Affidavit of the father filed 21 May 2024, annexure MRG-16 at page 52.
On 17 May 2024:
(a)the father emailed Ms NN[98] to ask whether the mother had arranged any further visits as he had not heard from her or her solicitor;[99] and
[98] At 11.58 am.
[99] Exhibit 2, page 3.
(b)Ms NN emailed the father[100] in terms which advised that there were then no visits booked at the Centre for his time with the children and which also:
[100] At 2.38 pm.
(i)advised that she could return his call tomorrow if needed, but:
(A)if he was calling to arrange a supervised visit on a Tuesday afternoon, then he could reply to the earlier email and she would have one of the Centre’s staff organise it to commence from tomorrow (if possible); and
(B)if he was calling to arrange a time to meet with her, she would try to find a suitable time for them both; and
(ii)noted that she was unable to change his supervised visits with the children to a Saturday until he attended a visit on a Tuesday (or any other weekday after school) and demonstrated that he could adhere to the Centre’s rules.[101]
(c)the father emailed Ms NN[102] to advise, in essence, that whilst he understood that the mother would not bring the children to the Centre until a new Agreement was signed, he queried why the existing Agreement (said to have been dated and signed on 11 January 2024) was not sufficient – he also contended that he understood that, absent reasonable explanation, Court orders or a direction from the Independent Children’s Lawyer, the conditions proposed by the Centre could not be imposed.[103]
[101] Exhibit 2, pages 21-22.
[102] At 2.48 pm.
[103] Exhibit 2, page 1.
On 18 May 2024, Ms NN emailed the father to say that they had discussed the updated agreement and the reasons for it on numerous occasions, which would likely be clear to him if he referred to the recording he had made of their meeting and to the emails and other correspondence. She also said the Centre held no view about the appropriateness of orders and suggested he contact the mother or her legal representatives to discuss further.[104]
[104] Exhibit 2, page 1.
On 24 May 2024, the father struck through certain of the conditions contained in the Supervised Visit Agreement signed by the mother on 7 May 2024 and signed the amended version of the same. The deleted conditions were that, unless agreement was reached between the parents, he was not to telephone call, Facetime or initiate any communications with members of the paternal family during a visit and was not to initiate discussions about paternal family members. He also struck through the conditions that required him to redirect the conversation if the children brought up the paternal family and, in essence, that the supervised time would happen inside the Centre until such time as the parents agreed otherwise.[105]
[105] Exhibit 1, pages 15-19
On 30 May 2024, the father signed a Supervised visit Agreement with U Contact Centre in terms which mirrored the conditions set out in the mother’s 7 May 2024 Agreement.[106]
[106] Exhibit 1, pages 20-24.
Further discussion and conclusions
I consider that the exchanges set out in detail above establish that:
(a)on 19 March 2024, the mother asked the Centre to move the children’s supervised visits with the father to Tuesdays and followed-up this request on 25 March 2024; and
(b)on 28 March 2024, the Centre advised that future visits between the father and the children would have to occur on weekdays (Tuesdays) and not Saturdays as this would allow the Centre to have greater oversight of the same given the father’s behaviours during previous sessions; and
(c)on 2 April 2024, the father conveyed that he did not agree to the Centre changing the day on which the supervised visits would occur and noted its inability to facilitate his time with the children on Saturdays; and
(d)on 2 April 2024, the Centre informed that it was not that it could not facilitate the children spending time with the father on Saturdays, but it was his asserted inability to follow its requirements that had resulted in it offering to supervise their time together on a day other that Saturday; and
(e)on 5 April 2024:
(i)the Centre conveyed that the mother’s position was that she wanted to maintain the children having weekly visits with the father and was able to do so in accordance with the Centre’s availability; and
(ii)the Centre advised that its availability to supervise the children’s time with the father was on Tuesdays but it would reconsider facilitating the time on Saturdays if the father could show over a number of weekday visits that he could follow its rules; and
(iii)the mother’s solicitors advised that the mother preferred for the children’s visits with the father to remain on Saturdays and asked the Centre to advise if it could accommodate this; and
(iv)the Centre advised that, if the father met with Ms NN during that week, she would reconsider resuming Saturday time on 13 April 2024.
(f)on 9 April 2024, the Centre advised the father that no further visits were then booked; and
(g)on 10 April 2024, the father sought a meeting with Ms NN before Saturday 13 April 2024; and
(h)on 11 April 2024, the father advised the Centre that he would attend it on 13 April 2024, which communication resulted in the Centre conveying confusion and reiterating its position that it would not facilitate the children spending time with him on Saturdays until he met with Ms NN and attended visits on Tuesdays in order to demonstrate that he would do what he had said that he would – namely, follow the Centre’s rules and requirements; and
(i)on 4 May 2024, in a meeting with Ms NN, the father advised that he wanted to resume spend time with the children at the Centre and agreed to weekday afternoon visits with a view to resuming Saturday visits; and
(j)despite his position on 4 May 2024, the father did not sign a new supervision agreement with the Centre until 30 May 2024.
I consider it clear that, from no later than 5 April 2024, the mother’s position was that she wanted the children to spend weekly supervised time with the father on Saturdays and that, if the father had taken up the opportunity to meet with Ms NN before 13 April 2024, the supervised time may well have occurred on that day. Instead, the father chose not to attend the proffered meeting and, instead, attended at the Centre on 13 April 2024, 20 April 2024 and 27 April 2024 knowing that there was no appointment for supervised time with the children there on those days.
Given the mother’s position as at 5 April 2024, I consider that, had the father attended the suggested meeting with Ms NN before 13 April 2024 and had Ms NN indicated that the Centre would facilitate the children spending supervised time with him from Saturday 13 April 2024 onwards, the mother would have ensured that the children attended such visits. The contents of the correspondence set out above is such that I am not persuaded that the mother intentionally failed to comply with order 9(a) of the August 2023 orders on 13 April 2024, 20 April 2024 and 27 April 2024 or that she made no reasonable attempt to comply with the same on those occasions.
Given the father’s agreement on 4 May 2024 that he would spend time with the children at the Centre on weekdays with a view to returning to spend time with them there on Saturdays, I am not persuaded that the mother intentionally failed to comply with order 9(a) of the August 2023 orders on Saturday 4 May 2024 or Saturday 11 May 2024.
Consequently, the father’s applications for contravention will be dismissed and the relief sought by him in the same will not now be the subject of any further consideration.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 13 August 2024
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