Geralton and Geralton

[2008] FamCA 628

FAMILY COURT OF AUSTRALIA

GERALTON & GERALTON [2008] FamCA 628

FAMILY LAW – CHILDREN— With whom a child communicates —contraventions—orders provided father was not to use or be affected by illicit drugs when child in his care—positive specimen collected one month after order—father alleges cannabis stays in bloodstream up to six weeks after use—onus of proof —balance of probabilities other tests since negative—no penalty imposed on that contravention—serious contravention—ongoing —mother denied contact with child by father—blatant nature of contravention—community service order offered not accepted—no remorse—s70NFG (5) (a) suspended prison sentence—14 days—strict compliance—Variation to previous orders to make-up contact—Consent Orders made to that effect.

APPLICANT: MS GERALTON

RESPONDENT: MR GERALTON

FILE NUMBER: BRC 5638 Of 2007

DATE DELIVERED: 30 July 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 30 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Ashcroft

SOLICITORS FOR THE APPLICANT: Brisbane North Family Law Services

COUNSEL FOR THE RESPONDENT: Mr Pope

SOLICITORS FOR THE RESPONDENT: Derek & Dwyer Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Awyzio, solicitor as agent

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Grant & Associates Family Lawyers

Orders

Mother’s Contravention Application filed 14 February 2008:

1. The Father is found to have contravened the Orders of this Honourable Court dated 16 November 2007 in three (3) instances as set out in the Mother’s Application filed on 14 February 2008.  On the first and third contraventions no penalty is imposed.  On the second contravention the Father is sentenced to fourteen (14) days imprisonment to be fully suspended for a period of twelve (12) months or the final hearing of this matter whichever is the sooner, upon the Father complying with the Orders of this Honourable Court dated 16 November 2007 as varied by the Orders on today’s date. 

IT IS ORDERED UNTIL FURTHER ORDER THAT:

1. The Orders of this Honourable Court dated 16 November 2007 be varied as follows:

   a.(2)(c) - the Mother to spend time with the child born … January 1997, from 9.00 am Saturday to 5.00 pm Sunday each weekend commencing 3 August 2008.

   b.(8) - the Father will undertake and complete both a Triple P Parenting course or its equivalent (specifically dealing with the parenting of pubescent/teenage children) and an anger management course by

   
   

   12 December 2008 and further the Father to provide to the Independent Children’s Lawyer the certificate of completion issued by each course provider.

   c.Any time the Mother has the child in her care, the Mother is to ensure that no other person occupies the premises where she resides.

   d.        BY CONSENT changeover is to occur at the S Police Station.

IT IS FURTHER ORDERED THAT:

1. Pursuant to s 62B and s 65DA(2), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC5638 of 2007

MS GERALTON

Applicant

And

MR GERALTON

Respondent

REASONS FOR JUDGMENT

1. I will read my reasons for judgment into the record.  There is a widespread perception in the community at large that orders made by this Court can be disregarded with impunity.  For 25 years as a Judge of this Court I have done my best to dispel that perception.  I intend to keep trying. 

2. In this matter orders were made by consent on an interim basis on 16 November 2007.  Those orders are to be found attached to the contravention application which had been filed.  Each party was legally represented at the time those orders were made.  They were orders made by myself.  The orders provided that initially the child was to spend 9.00 am until 5.00 pm each Sunday for a period of three months from the date of the orders and thereafter from 9.00 am Saturday to 11.00 am Sunday and each alternate week and thereafter, and the it was going to build up from 9.00 am Saturday until

   
   

   5.00 pm Sunday on each alternate weekend.  The reality is the mother saw her daughter twice some time in late 2007.

3. On 14 February this year, the mother filed a contravention application.  She alleged three contraventions.  The first was that contrary to an order the parties not partake of illicit drugs when the child is in the party's care, the father had breached that order by a positive drug test on 18 December last year.  The second contravention is an ongoing one that the father, from 9 December 2007, did not bring the child and that such failure was without reasonable excuse.  The third contravention related to Christmas Day last year and there was a specific order about that.

4. The father had not even read the orders so he was not aware that the mother had any entitlement on Christmas Day and he therefore did not contest that contravention.  The first contravention is interesting from a legal perspective.  As I said paragraph 6 of the orders that were made provided the father will not use or be affected by illicit drugs when the said child is in his care.  A specimen was collected on 18 December 2007, just over a month after the orders were made.

5. The father's evidence, given somewhat glibly I might add, was that he was taking valium at the time to cease his cannabis intake.  His evidence was that he had not consumed cannabis since the making of the orders a month earlier, and he volunteered the information that cannabis stays in the bloodstream or in the system for up to six weeks, as if that was a fact which should be known to the whole world.  I do not accept the evidence from the father in relation to a whole range of matters.  It follows that I cannot rely on his sworn testimony that he ceased taking cannabis as of 16 November, the day these orders were made.  He did not comply with any other provision of the orders at all.  I cannot, for the life of me, see why he would stop taking where he had been, one understands, previously consuming it on a regular basis if the mother's evidence is to be believed.

6. The father does not have any expertise as a pathologist or a toxicologist.  The question arises as to who bears the onus of proof in situations such as this.  Section 70 NAF of the legislation provides that the onus of proof shall be on the balance of probabilities.  If a much more serious penalty is to be imposed then the onus of proof is to be beyond reasonable doubt.  This is a matter where I do not consider any breach to be at the higher end of the scale and so the relevant onus of proof is the balance of probabilities.

7. The view that I have taken is that the mother is entitled to assert there has been a prima facie breach of the orders once cannabis is detected in the system after the making of the orders.  That observation is reinforced by the fact that there was no challenge to the finding that there has been a prima facie case established.  The tendering of the drug certificate, again, was not challenged.  The evidence of drug use in late 2007 is something that is peculiarly in the knowledge of the father.  As I said he gave evidence he had not consumed since that magic date.  As I have said I do not find the father a convincing witness on that subject.

8. The view that I take is that the father must do what is in his power to corroborate his claim.  He can produce academic articles.  He can produce - I would take telephone evidence - someone with sufficient expertise and experience who would know of such matters, experts perhaps from the police, toxicologists, and pathologists.  I can observe that in instances in my experience where cannabinoids have been detected, on certificates issued on by certain pathologists, there is a series of plus signs afterwards and in a number of cases, I was led to believe that the number of plus signs was an indication of the quantity of the drug that was detected in the system.  We have people saying, "I was in a room and other people were smoking and so it was passive smoking and so I haven't really taken it."  And other people such as here saying, "Look, I took it so long ago.  I haven't breached the orders because I took it before the orders came into effect."  I have no interpretation of what 50UG/L precisely means in the context of this case, as to whether that indicates a heavy use, a recent usage or whether it indicates a light usage.  The view that I take is once there is shown to be drugs in the system after the date of the order, if the father wanted to convince me, it is his obligation to lead evidence to that effect.  In those circumstances I find the contravention established.  I note that there have been a total of three drug tests over the period of some six months.  The other two tests, I understand, have been negative.  They have been taken in more recent times.  In the whole of the circumstances I will not impose any penalty on that contravention.

9. As I have indicated, the third charge was not contested.  As I have indicated, the father says he was not even aware the mother was entitled to time with the child on Christmas Day.  That alone gives me some indication of his familiarity with the orders that he signed and consented to.  In future, I expect Mr Geralton to be able to recite the orders that were made off by heart.

10. The second charge relates to an on-going breach where the mother was supposed to be having the child on a regular basis, as agreed, and it just did not take place.  It was conceded that a prima facie case was established.  The father got into the witness box, took an oath and gave his evidence and he had to satisfy me he had a reasonable excuse for contravening the orders.  His reasonable excuses included the child got sick on the bus.  Presumably she got sick on the bus pre-dating November 2007.  It was never raised at the time.  Presumably he could have taken her by car or made some other arrangements or simply passed that information to the mother's solicitors so that different arrangements could be made.  Another excuse was that Surfers Paradise is a terribly dangerous place at night and all the world knows that.  The child was not even to go at night-time initially.  It was day-time contact only.  The father could not bring himself to comply with that.  In any event, presumably he was aware of the terrors of Surfers Paradise night life prior to the making of the orders.

11. A further excuse was the mother's relationship with a known paedophile, Mr N.  He asserts Mr N was living with her.  There was no challenge to the mother's evidence and no challenge to the evidence contained in the affidavit of Mr N.  The father said the child did not want to go.  It is not the first time we have heard that excuse being put forward.  The father had consented to these orders.  It is an obligation as a parent to insist that the child go.  If the child said she did not want to go to school, the father would, in no uncertain terms, I expect, make it his business to ensure the child did attend school. 

12. There is an enormous inconsistency in a person such as the father breaching an order on an ongoing basis from November last year and to have the temerity to come into this Court and through his counsel say, "I make an oral application to vary the orders so the mother can have day-time contact for the next three months."  Suddenly the child is willing to go.  The father had to convince me he had a reasonable excuse for breaching the orders.  No such excuse was made out.  Counsel for the father, quite properly, conceded that the only basis for a reasonable excuse would be if the father had a reasonable belief that the mother would not return the child.  That was obliquely raised.  There had been an unfortunate incident in the past about that but no such belief, to my mind, was made out in the father's evidence.

13. I will find contraventions 2 and 3 established.  Clearly the third contravention, whilst Christmas Day is important, is in the whole scheme of things minor and I will adopt the course of not imposing a penalty in relation to the third contravention.  The issue of contraventions and penalties is dealt with in Division 13A of the legislation.  The Federal Parliament has said that this Division deals with powers that a Court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.  It says the Court has the power to vary an order but the other orders that a Court can make depend on whether a contravention is alleged to have occurred but is not established or the Court finds that a contravention has occurred but there is a reasonable excuse, or the Court finds that there was a contravention and there is no reasonable excuse for the contravention.  Subdivision (e) is for less serious contraventions and subdivision (f) for more serious contraventions. 

14. The view that I take, and which I will elaborate later, is that this falls into the category of a more serious contravention.  It is serious because it was ongoing.  The father did not seek to bring the matter back to Court to cure any of the problems that he now claims were besetting him in having the child comply with the orders.  He had a direct warning from myself back in April, as I recall, and as I have said, he has come to Court asserting that suddenly he can fix things.  The father did not even attempt to comply with the terms of paragraph 8 of the orders, and they were that he would undertake, within three months, an anger management course and a Triple P Parenting Plan.  They are not just orders made by the Court for the fun of it.  They are orders that presumably the parties consented to for good reason.  They are orders that have been just totally disregarded, as have most of the other provisions of the orders of 16 November. 

15. This matter is going to be on for hearing within six months.  All of the provisions in the legislation are relevant.  Section 60CC factors deals with the primary considerations and the other factors.  I expect the parties to make themselves familiar with those terms, but there are, on a regular basis, two key issues that a Judge will look at, and one is the ability of a parent to comply with orders.  The person who is able to convince the Judge that compliance will occur has a decisive impact on how the case will progress.  The other key issue is to be able to convince the Judge that that parent would foster a relationship between the child and both parents.  Now, when this matter comes on for trial that will be a key factor.  Let us see what happens between now and then.

16. It is all well and good to have words placed on a piece of paper and then to seek to, by indirect means, undermine the terms of the order by sabotaging it, by denigrating the other parent of the child, ridiculing the other parent, embarrassing the child.  That is the worst possible form of parenting and I see it on a constant basis and when I am satisfied the guillotine comes down normally.  There will often be an order for supervised contact and they blame me.  I simply make observations that the person cannot be relied on. 

17. The other reason I have summarised why I find it is a serious breach is the length of time that has gone on, the blatant nature of it, the unconvincing excuses put forward by the father, the fact that he could come to Court today and make an oral application to suddenly allow contact to take place when the contraventions have been issued against him since February, when they were sent to his firm of solicitors and they were not authorised to accept service.  All of this is aggravating conduct deserving of the appellation of serious.

18. Under section 70NFA I can make an order for costs.  I can look at that issue but it is unlikely at this point in time that I would do so.  Under sub-section (2) of section 70NFB I can impose a community service order providing the state legislation makes provision for that.  Queensland Law does provide for that.  I have regularly imposed such an order for serious breaches in the past and I get a report back from the Probation Service of the State Government whether the person has served whatever sentence was imposed, but I normally impose something in the order of 80 hours.

19. The father is working full time.  I have put to him, through his counsel, two options.  One was a community service order, the other was a suspended prison sentence.  The father needs the money.  He cannot give up work and he elected for the latter option.  In section 70NFG dealing with a sentence of imprisonment, I cannot impose a term of imprisonment of more than 12 months, nor would I be minded to in this case, but I have to be satisfied, in effect, that the sentence of imprisonment is a sentence of last resort.  I am satisfied, from what I know of this matter, that to impose a fine, and it would need to be a substantial fine, is probably only going to penalise the child, and I am not satisfied the father has any assets of any significance that could be sold to pay the fine.  A bond I would find to be totally useless in circumstances where a person has shown such blatant ongoing disregard for Court orders, not one ounce of respect shown. 

20. In the whole of the circumstances, as I have said, I offered a community service order and that was not accepted.  I take into account there has been no remorse whatsoever by the father for his conduct.  He has shown not the slightest indication of insight into the consequences of his behaviour.  It comes like a bolt out of the blue to read in Dr W’s report that the child is terrified of telling her father that she in fact would not mind seeing her mother. 

21. Under the terms of section 70NFG (5)(a) I have the power to suspend a prison sentence.  Stand up, Mr Geralton.  I am sentencing you to 14 days imprisonment for the breaches in contravention (2) of the contravention filed on 14 February 2008.

    RECORDED  :  NOT TRANSCRIBED  

22. I can suspend a sentence of imprisonment on conditions.  There is going to be one condition and one condition only and that is if you comply with the orders as varied by me today, the orders of 16 November 2007.  Breach them at your peril, Mr Geralton.  I can guarantee you you will be doing the 14 days and you will be sentenced by me for the further breaches.

    RECORDED  :  NOT TRANSCRIBED

23. I am now going to consider a variation to the orders.  The variation I have in mind is some form of make-up contact such that the mother should have been having from Saturday morning until Sunday evening.  I propose to make inquiry and hear submissions but subject to those submissions and the view that I take is the mother can spend from Friday afternoon with the child until Sunday afternoon.  The mother can collect the child from after school on Friday.  It saves any meeting with the father.  Apart from that the parties can hand the child over at the S Workers Club at 5.00 pm on a Sunday. 

    RECORDED  :  NOT TRANSCRIBED

24. The orders were made by consent.  The view that I take is not only vary those.  I was minded to vary it to make up contact but at this stage I will do it this way, that paragraph 2C provided that the mother was, by this stage, to be having contact from 9.00 am Saturday until 5.00 pm Sunday each alternate weekend.  The view that I take is that the mother can have from 9.00 am Saturday until 5.00 pm Sunday each weekend.  The collection of the child and changeover of the child is to occur outside the S Police Station. 

    RECORDED  :  NOT TRANSCRIBED

    ORDERS DELIVERED

1. What I propose to do is adjourn this matter for approximately nine weeks.  It will be adjourned to 8 October 2008.  At that time I will review compliance with these orders including attendance at courses, issuing certificates, strict compliance all around, but I will also be issuing directions for a trial in January.  Parties should be mindful, both sides, of what I have said about complying with Court orders and respecting the child's right to be able to know and love both parents.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  30 July 2008