Grant and Aiden

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN

[2016] FamCA 197

FAMILY LAW – Contravention – breach proved – outcome adjourned in absence of mother – because of two prior breaches, seriousness but options limited.
FAMILY LAW – Consideration of subdivisions – accept Subdivision E is only appropriate finding – appropriate consideration is compensatory time but evidence lacking to establish best interest of child.

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422
Grant & Aiden (2013) FamCA 154
Morgan & Miles (2007) FamCA 1230
Sampson & Hartnett (No. 10) (2007) FLC 93-350

APPLICANT:

Mr Grant

RESPONDENT:

Ms Aiden

FILE NUMBER:

MLC

5094

2008

DATE DELIVERED:

22 March 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

26 February 2016; 18, 22 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Marchetti

SOLICITOR FOR THE APPLICANT:

Septimus Jones & Lee

THE RESPONDENT:

No appearance

Orders

That all outstanding applications are adjourned for mention at 9.00am on 15 April 2016 and the mother is directed to personally attend on that day.
Pursuant to s 11F of the Family Law Act 1975 (Cth) (“the Act”), the mother produce the child V (the child) to the Reception Desk on Level 5 of the Family Court of Australia, Melbourne Registry on 19 April 2016 at 9.00am for the purposes of the preparation of a child and adolescent assessment with focus on:
(a)      is it in the best interests of the child to resume contact;
(b)      what are the concerns of the child;
(c)what is the future of any prospective contact between the father and the child ;
(d)      what are the views of the parents;
(e)what is the impact on the child of any contact relationship either now or in the future continuing.
That the father have liberty on 15 April 2016 to make an oral application for a recovery order under s 67Q(a)(i) of the Act for the return of the child to the father at the Family Court of Australia at 9.00am on 19 April 2016 if the mother indicates that she will not comply or fails to attend on 15 April 2016.
That otherwise all of the following are adjourned to 10.00am on 22 April 2016:
(a)the contravention application of the father for final determination (noting that judgment as been delivered but outcome is and order is to be determined); and
(b)the substantive and interim applications of both parents that are currently pending.
That the reasons this day be urgently transcribed.
If the mother fails to attend on 15 April 2016 and subject to any order of the court to the contrary, the father has leave that day to seek the order for the issue of a warrant for the arrest of the mother.
UPON THE ORAL APPLICATION OF THE FATHER MADE THIS DAY, IT IS ORDERED, that the child V be returned by the mother to reside in Melbourne and returned to her school that she was attending for Term 1 in 2016.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Grant & Aiden 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 MELBOURNE

FILE NUMBER: MLC 5094 of 2008

Mr Grant

Applicant

And

Ms Aiden

Respondent

REASONS FOR JUDGMENT

ex tempore

A contravention application was filed by Mr Grant, to whom I shall refer in these reasons as “the father”, on 24 December 2015 alleging that Ms Aiden, to whom I shall refer as “the mother”, had breached an order made on 4 February 2011 for the child V, who was born in 2006, to spend time with him. That application was amended by a document filed on 22 February 2016.
There were 11 allegations, the first of which was struck out. The remaining 10 allegations are, more or less, the same. That is, the mother did not provide the child for the designated contact periods. The mother admitted the contact did not occur but maintained she had a reasonable excuse, in that she had done everything to encourage and get the child to go but had been unsuccessful. For the reasons that follow, I reject the mother’s position.
Before dealing with the particular allegations, it is necessary to traverse some background to this particular application. The original December contravention application contained many allegations of breaches of the 2011 order that went back to 2013. That application was listed in the judicial duty list on 2 February 2016. On that day, both parents attended and represented themselves. The mother sought – and was granted – an adjournment. She maintained that there was an application by her in the Children’s Court of Victoria about to commence and she could not deal with both matters at the same time.
Her application for an intervention order, on behalf of the child, was brought before the Children’s Court on 20 November 2015. It was initially dealt with as an ex parte matter, adjourned to 11 December 2015, (where the father was present), and then adjourned part heard to 13 January 2016 where upon it was again adjourned to 4 February 2016. Thus, the mother was conducting her own intervention order application on behalf of the child only two days after the adjourned hearing in this Court.
Although the father opposed the adjournment of his contravention application, I granted it on the basis that it did not seem to prejudice him because, first, the contact with the child had not occurred for several months but, secondly, I was told that the intervention order had an overlap with the contact issue in this Court and, as such, it was possible that the jurisdiction of this Court might be affected because of section 114AB of the Family Law Act 1975 (Cth) (“the Act”). As it ultimately transpired, that did not occur because the mother’s application was refused by the Children’s Court of Victoria.
The contravention application by the father was then amended, as I have indicated, and the hearing came on before me on 26 February 2016. Again, both parents were without legal representation. Legal representation is a privilege, not a right, but its absence requires a Court to ensure that, without giving advice or conducting the proceedings for a particular litigant, there is a metaphorical level playing field. In this case, that was not a difficulty, except that, whilst the father clearly seemed to understand what was required of him, the mother was much more vague and evasive about acknowledging what role she had to fulfil.
I am satisfied that the process, as explained to her, enabled her every opportunity to fully participate. Her participation, such as in the area of cross-examination of the father, indicated a very clear understanding, not only of the litigation process but also the case that she had to meet. No one could know better than the mother why the child had not attended contact with the father.
Unusually, for this type of application, I am satisfied that, contrary to the mother’s assertion, the father had no understanding of why the child was not attending contact until the Children’s Court hearing. Here, the same issues were apparently canvassed in the Children’s Court proceedings, as they were here. It was not until the mother gave evidence in this Court that I had any understanding of what she was asserting about why the child did not attend on the contact visits.
Despite two days of hearing, it was only late on the second day that her argument about reasonable excuse emerged. For the reasons that follow, I reject her argument.
On 26 February 2016, the mother began by seeking on an oral application, an order that the father be declared a vexatious litigant. I declined to determine that because of the impending contravention application indicating that she would have to put her basis and her evidence in writing. Various other formal objections were raised by the mother, including: the format of the application, the amended application should not be allowed because of insufficient time having elapsed for her to consider it; and, the fact that there were some new annexures to that amended application.
All of these objections were rejected principally because the amended application simply reduced the number of allegations but otherwise the details were the same. Additionally, the evidence was the same and, most importantly, as I earlier observed, only the mother knew what occurred and there was no dispute that the child did not go on the contact visits. What these objections – and more to which I shall refer in a moment – indicate, is that the mother carefully contemplates her position, prepares her case and mischievously endeavours to thwart the Court’s process and orders.
That is because she well knew that her argument simply boiled down to the fact that the child had had anxiety problems and had said she did not want to go with her father. If the child was in such a state that contact with the father would have affected her health, the mother would have begun proceedings in this Court to protect that health. She did not do so until she sought to file an application in a case on 18 March 2016. I am well satisfied that she knew exactly what she was doing in every procedural sense.
In respect of her objection as to the form of the father’s application, the provisions relating to the enforcement of parenting orders lies in Division 13A. That says nothing about the formality of the form and process, save as to the ultimate orders that could be made, but it is relevant that Division 13A is in Part VII of the Act. Division 12A in Part VII mandatorily requires a Court in conducting child-related proceedings, to give effect to certain principles. Section 69ZN requires the Court to consider the needs of the child and the impact on her of those proceedings. It would be hard not to infer that the child is anything other than well aware of these proceedings.
V has had four sessions with a psychologist, seen her mother go into the Children’s Court, not seen her father for months and then was ultimately moved to Queensland without even so much as a goodbye to her school friends during the midst of this current school term. It is hard, therefore, to avoid the impact, if it is occurring, and no evidence was led by the mother that it was, of these proceedings.
A second principle is that the Court is required to actively direct, control and manage the conduct of the proceedings. On 26 February 2016, because of the obtuse way the mother was cross-examining the father, I took an active part in the cross-examination of the father so that the Court could ascertain what he knew of his daughter’s absence at contact visits. That became increasingly necessary on 18 March 2016 to obtain evidence as to what happened in the Children’s Court of Victoria.
The third principle is that proceedings are to be conducted in a way that will safeguard the child from family violence but also protect the parties as well from that same violence. The mother alleged that she had been a victim of the father’s violence, a statement repeated by the maternal grandmother on 18 March 2016. But nothing I observed indicated any physical fear or, for that matter, psychological fear in the mother. She referred to her preferred method of communication with the father being by telephone not in writing.
She has been to Court numerous times since 2008 and her reference to the Court forms shows she has seen the published material of the Court. She would therefore be familiar with the Court’s desired protection of parties from family violence. She did not seek any such assistance. She declined to give details of her address and that information was repressed. Nothing therefore indicated that her alleged fear of the father prejudiced or hampered her conduct of her case. Nothing I observed indicated the father was anything other than courteous and placid.
The fourth principle is that the proceedings are to be conducted so as to promote cooperative and child-focused parenting. There is no prospect of that occurring here. In addition to the immediate case, there is the history here that informs that there is little prospect of cooperative parenting in the future.
The fifth principle is that the proceedings are to be conducted without undue delay and without legal technicality. That becomes relevant in relation to the emails that I have read into the transcript this morning about the mother’s complaint about undue haste. Contrary to undue haste, this case has wandered for some weeks. It is also because of the particular requirements of the fifth principle that I rejected the mother’s objections to the form of the father’s application. The substance was what mattered and she well knew it.
Chapter 21 of the Family Law Rules 2004 sets out the process itself. Rule 21.02 provides that the applicant must file an affidavit stating the facts necessary for the Court to make the orders sought and attach a copy of the relevant order. The father did that.
The application must provide details of past findings of the Court as to contravention. Most unusually for the common law world, this is an application where prior breaches of the law are displayed and known to the Court, even before the current breach is established. For the record, I did not take any notice of the past breaches until I became aware of the mother’s own statement that she had been on a bond under the Act. Her past conduct is relevant but, in my view, only in respect of the outcome, not in respect of the findings as to the breaches now under consideration.
Rule 21.08 requires the Court to inform the respondent of the allegation and requires the respondent to admit or deny it. The Court then hears the evidence and asks the respondent to respond and, similarly, hears the respondent’s evidence. All of that happened here, albeit slowly, because of the way the mother conducted her role in the proceedings.
It is significant that in respect of the second day of the hearing in March the mother requested (at the commencement of the hearing) that she have a “McKenzie friend”. When I asked her what a “McKenzie friend” was, she described it as a person to assist her to organise her papers. I indicated I had no objection to that course but wanted to know who the person was and she offered her adult son. That young man attended alongside his mother and, he assisted her throughout these proceedings.
There are 10 allegations, all of which cover the period from 21 August 2015 to 18 November 2015. Albeit different parts of the orders of 2011 are relevant, the allegations all relate to the father not being given time with the child.
To each allegation the mother acknowledged that time did not occur but she maintained she had a reasonable excuse. She required the father to give evidence and to present himself for cross-examination.
Section 70NAC of the Act provides that a person – in this case, the mother – is taken to have contravened an order only if she has intentionally failed to comply or made no reasonable attempt to comply. At this point, it is instructive to ask what the requirements were that fell to the mother.
Final orders were made in this case on 4 February 2011. At that time, the mother was without legal representation. At no stage before me has she said that she did not understand her obligations. Paragraph 5 of the orders provided that the child spend time with her father on each alternate weekend from 5 pm on Friday to 4.30 pm on Sunday. Importantly, the father was to collect the child from after school care and the mother was to arrange the after school care. The mother was ordered not to be present at the time the child was collected by the father. In addition, the father was to collect the child from after school care on alternate Wednesdays for two and a half hours on similar basis.
The orders provided the handovers for school holiday arrangements were of a similar nature to the weekends. Although it is not an allegation here dealt with, nor alleged by the father, paragraph 12 of the orders becomes relevant later and it read:
Neither party shall take the child or permit any other person to take the child to a counsellor and/or psychologist without the expressed consent of the other parent.
Apropos my earlier reference to the mother and her expressed concern about family violence, the 2011 orders contained the following notation, which was brought to the attention of the relevant state authorities by virtue of paragraph 17 of the 2011 orders:
Orders herein are inconsistent with a crimes family violence order made against the husband in favour of the wife and the child by the Magistrates Court of Victoria on 13 May 2010. Division 2 of Part VII of the Family Law Act therefore applies, and those parenting orders prevail on the basis that the parties have agreed to these orders that the father spend time with the child to the extent of any inconsistency.
That notion also draws attention to two other things. First, the contact orders – and the paragraph to which I next refer – were made by consent of the mother. Secondly, the child was then aged four and a half years. She is now nine.
The next and final order of significance in 2011 was in paragraph 18. It read:
Pursuant to section 65DA(2) and section 62B, the particulars of the obligation these orders create are the particulars of the consequences that may follow if a person contravenes these orders – and details of who can assist the parties adjust to and comply with an order – are set out in the fact sheet attached hereto and these particulars.
I interpolate here that the paragraph ended suddenly but should have read “and these are part of these orders”.
Thus, it is not just the times and details I had earlier described that are obligations which the mother had to comply with. Her compliance was required with what was set out in the attachment to the order. That attachment began by providing information because the Court had made a parenting order. As the document then said, it required the mother to take certain steps. Leaving aside matters that are not relevant beyond the contravention application, the following words appear under the heading “Your Legal Obligations”. There are four dot points:
·You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example, where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so. There are agencies in the community that can help you and your family adjust to and comply with the orders.
·The order remains in force until a new parenting order or parenting plan changes it in some way.
·Even if the needs or circumstances of you, the child or the other party change, the Court order applies until it is formally changed by a Court or, in some situations, you enter into a parenting plan with the other party.
·Sometimes people talk to each other about changing arrangements set out in the parenting order. These talks do not change the order.
As will be apparent, the mother’s obligations included positively encouraging the child to go on contact visits and for her to be available for such visits. Importantly, talks as between the mother and the father would not have changed the order. An amendment to the order was required if the existing arrangements were not appropriate. All of that is relevant to the question of whether or not the mother had a reasonable excuse for the child not spending time with her father through her conduct as a parent.

To be abundantly clear, it is not just the attachment that creates the obligation. Section 70NAD relevantly says:
For the purposes of this division
…
(b)a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order.
Section 65N(2) relevantly provides:
A person must not: (a) hinder or prevent a person and the child from spending time together in accordance with the order; and, (b), interfere with a person and the child benefiting from spending time with each other person under the order.
Section 70NAE sets out the circumstances under which, in this case, the mother may be taken to have had a reasonable excuse for contravening the order. The section makes clear that whilst examples are given as a guide, the Court has a discretion to decide whether the circumstances provide that reasonable excuse. Such things as how, in this case, the resistance or reluctance that the child manifested itself; how that manifestation was conveyed or explained to the father; how long the resistance or reluctance continued; what the mother did about seeking professional help; and, what the mother did about seeking to alter the orders if the resistance or reluctance was entrenched, are all examples that affect the exercise of that discretion.
But the discretion must be exercised, also, in the context of two principles. First, the orders were made by consent of the parties in circumstances where all asserted that they were in the best interests of the child. If they were not, the Court would not have made them. Secondly, the annexure to the order and the statutory provisions, all place an emphasis on the obligation of the parent to make the orders work.
The specific examples given by section 70NAE shed light on how the legislature intended the Court to be guided. It is a reasonable excuse if the mother believed, on reasonable grounds, that it was necessary to withhold a child, or not actively promote the contact, if it was necessary to protect the health or safety of a child, (in this case, the child). Whilst there is a strong overtone of protecting the health of the child in this case, the section goes on to restrict that protective role by the following:
The period during which, because of that contravention, a child and the person did not spend time together was not for longer than was necessary to protect the health or safety of the person or child.
It would be farcical to use that provision to say that each time the contact period was about to occur, it was necessary to prevent it happening and then wait until the next period to repeat that statement. That must be so because of the positive obligations upon the parent, in this case the mother, to make the orders work. If, as I understand the mother to say, the orders are no longer appropriate, she has an obligation to seek alternative orders. That she did on 18 March 2016, but without notice to the father until after the hearing had resumed.
The standard of proof in a contravention application is the balance of probabilities, (section 70NAF) save for the circumstances that might give rise to a Court contemplating a community service order, a fine or imprisonment where the Court must be satisfied, beyond reasonable doubt, that the grounds for making the order exist. The onus of proof, in establishing a reasonable excuse, falls on the person who asserts it, in this case the mother.
As I earlier said, there is no dispute that the child did not spend time with her father on and in respect of the alleged periods. It is not asserted by the mother that she did not understand her obligations. I will then turn to the specific incidents.
On or about 21 August 2015, the child was sent home early from school. She was given an early leave pass by the school. She did not go to after school care. In her evidence – and I am satisfied the father knew little about this – the mother telephoned that day. Her records showed that there was a 37 second call. What was said was not mentioned.
In an opening piece of evidence, the mother said that the child never really wanted to go on contact. She said she encouraged the child for the whole time over five years. She said:
I’ve had her hiding under the table. We live on a street bordering the school, so she could come home and we would then take her bag and take her back to the after school care. It is difficult to get her to go back. I would need to coach her to come out and then tell her that she was going. I would give her a hug. We would go over what he –
(meaning the father)
might do. It became difficult to get her out of the gate. I had to push her over and passed the gate. My 15 year old son was with me and [the child] was holding his leg. I think now, as she got older, the same thing continued. She stopped taking her bag and said that when she had taken it her father put it on top of the wardrobe. In the bag were photos, jewellery, a computer and some toys.
The mother said:
I would go with a bag prepared by myself with a soft toy to comfort her. She would get changed. She was dry retching.
The mother then said that the last time the contact occurred was 7 August 2015 and she walked her to the after school care. She conceded she was not good at taking the child off her when the child was clinging to her:
I took her to the playground. She didn’t want me to go. She said she wanted to run away, to jump the fence and go on and she looked scared. I left her and walked away. I turned back and noticed her screaming.
The mother went on to say that after 12 August, which was the Wednesday, the child, again, became ill. She said the child during the day went to the sickbay and she received a call from the school to collect her.
The next contact period was 17 August, which, interestingly enough, was the child’s birthday. The evidence shows that the child went that day and there is no evidence of any anxiety or distress.
The next occasion was 21 August. Again, the mother received a call from the school who had told her that the child had a “tightness in the chest” and it was making her feel sick and they asked her to come and collect her. On 26 August, the child, again, went with her father. Again, there was no evidence of any problems on that occasion.
The following visit was 4 September. Again, the mother said that the school called her because the child said that she had had a headache.
The same applied on Wednesday, 9 September.
Back on 4 September, when collecting the child, the child said to the mother that something had happened to her. She then produced what the mother described as a “worry” doll. This doll had been given to the child by a school teacher. When the doll was given to the child, she apparently told the teacher that her father:
…doesn’t look after me as well as my mother.
That gave rise to the school becoming concerned. the child then went to the sickbay and, as a result of the same things that had previously occurred, the school asked the mother to collect the child. When the mother got the child home, she said that the child was saying she did not want to go with her father, but she noted that there was no temperature and no indication of any virus.
Around this time, the child, apparently, started to prepare what she described as a “book of worries”. She wrote what she was worried about. In that book, two significant things were said. First, the father was the problem because he did not look after her like her mother did. The second was that the father was coming to take her away.
I interpolate here that that is all very odd because there is no indication, at least as I have been able to find, of any such problem over the previous five years.
Since the worry doll was given to the child, it seems now not to be used. Since contact has not occurred, the mother says the anxiety has evaporated. Importantly, the mother said in evidence that she rang the father to let him know of these symptoms. There is no evidence to support that conclusion. The mother had every opportunity to put to the father exactly what she said occurred and that was just not put to him in cross-examination.
The mother said that from August through to September, along with the school holidays in 2015, she rang the father and said that the child was not wanting to go and the child was scared. I reject that those conversations occurred. I have heard the evidence of the father and I accept his evidence that no such conversations occurred. The mother had every opportunity to call evidence along those lines but did not do so.
Another interesting observation that the mother made, again voluntarily in her evidence-in-chief, was that she said that she told the father that they needed to work together on this problem and that the child’s anxiety was making her sick and missing school. That, certainly, was not put to the father in cross-examination and there is no independent evidence to say that that conversation did occur. Even if it did, the mother took no steps to implement such a strategy. As I earlier observed, I am satisfied the father was oblivious to what the problem really was until much later. I do not accept that the mother had that conversation with the father.
The mother then went on to say that, as a result of these telephone conversations, she said that the father was devastated but then he changed his attitude on the telephone and in the emails that he ultimately sent. Those emails are now in evidence. None of the emails indicate that the father understood what was going on.
When this evidence was tested under cross-examination, some things became apparent. The emails that the father sent the mother were sent on 11 September, 15 September, 22 September, 30 September and 12 November. All of those indicate that the father had no understanding of why the contact was not occurring, but he certainly wanted it to occur. He was critical of the mother. He used expressions in those emails such as “supposed health reasons” indicating at least that he knew about the illness. I might conclude from that that something was said to him to indicate that there were problems, but the extent of the problem was certainly not known to the father.
The emails also refer to the fact that the child was “guarded” in telephone conversations. The father did speak to the child at various times on the telephone, but he said that it was clear to him that someone was in the background because the child was very quiet and unresponsive. There was also a reference made to a doctor, but details were never provided to the father.
The mother’s view about the father’s position in all this is that what he said was all a “pack of lies”. She maintained that the father was a manipulative liar and that was why she would only communicate with him by telephone, not by the written word. That, she explained, was the reason why she did not respond to his emails. The difficulty I have with that is the problem of deciphering not only what was said in the telephone conversation, but what it meant. In my view, the mother’s response was disingenuous. Much of all of this led to the evidence of what happened involving the school.
When the father was cross-examined on 26 February (the first day of the two day hearing) by the mother, she asked him about a telephone conversation she said she had. This was one of the few telephone conversations that, I do accept, did occur. He said that in the first week of the third term school holidays he received a call from the mother, who told him that the child had said something to her. He said that his response was that it was not up to the child to decide about the contact.
He was told that the child had told the teacher “something” and that it was his responsibility to contact the school. This became very confusing but I accept what happened was that the father could do nothing at that point in time, because the school was closed for the holiday period.
He then contacted the school teacher, a Mr O, and ultimately a welfare meeting was called. Just exactly what happened is irrelevant now, because I consider that I got a much better picture when I heard evidence about what happened in the Children’s Court where the school staff were, indeed, called as witnesses by the mother.
There was no evidence led by the mother about the Children’s Court proceedings and it was left to me to inquire what had happened. I have already set out the details about the intervention order application brought by the mother. Somehow, Mr O was called to the Children’s Court. He said that the child had said something in what was described as a circle group, that she would not see her father again.
There were three meetings, according to Mr O, there was the circle group, followed by a welfare meeting which involved the father but not the mother and then there was the Children’s Court hearing itself. At the Children’s Court, Mr O was asked about a conversation between he and the child. He said that she told him she was worried about going to her father’s. He said that the statement was made at the welfare meeting. He said that the child was holding the worry doll at the time. Mr O was asked in the Children’s Court about the state of the anxiety in the child and it was described as mild.
Something was happening to the child, but the father was only told by the child that she did not like staying overnight and would not be coming with him again. This is a most disturbing statement for a nine year old child where there is no other evidence, bearing in mind this contact relationship had been going on for a number of years.
It transpired that because of the anxiety manifested at school, the child was referred to a psychologist. The mother endeavoured to distinguish this from some type of counselling or examination, but the inescapable conclusion is that the mother knew the child could not be taken to such a health professional without the father’s consent. That is in the order that I earlier mentioned. The father’s consent was neither sought, nor given.
Notwithstanding there is no allegation of such a breach of the order, what happened is relevant to the question of whether or not the child’s anxiety had anything to do with her non-attendance at contact and whether the mother tried to fix the problem, if it existed, of the child going at all.
In the Children’s Court, the father said that a Mr P gave evidence. Mr P was described as the psychologist. Indeed, the email, which I earlier mentioned received by the Court late yesterday – and which I have read into the transcript this morning – attaches a certificate from Mr P. That document confirms that he is a psychologist. Mr P said that he had four meetings with the child out of a total of five. The fifth one was with another person in the practice, because Mr P was ill with heart problems.
He told the Children’s Court that he had prepared a report but it was incomplete. However, he did go through what he had observed of the child and said that there were signs of anxiety. He confirmed that he had not met the father but, most importantly of all, he said the child and the father needed to have counselling. That seems to fly in the face of the mother’s position entirely. She has not expressed that there should be no contact.
The father told me that when he cross-examined Mr P in the Children’s Court, the psychologist apologised for not having contacted him and said that he did not know of the injunction that was made by this Court, to which I earlier referred,.
The mother’s explanation of how Mr P became involved was only clearer when she gave evidence herself. She said the school gave her a form to attend upon a psychologist. She said Mr O gave her that. She said she completed it and noted that it required two signatures. On 21 September, she sent an email to the school and asked Mr O to seek the consent of the father before proceeding any further with the referral to the psychologist. That, of course, was in the school holiday period. There was a conversation between the mother and father at the start of those holidays; that form or referral was not mentioned.
What she said then occurred was that a welfare officer, whom she named from the school, said that they would seek the services of the Student Services Department of the Education Department and that the Services would therefore not require the signature of the father for reasons that remained obscure.
The mother’s evidence about the order and her view that she was not defying the injunction are all rejected. I accept that Mr P did not know of the father’s involvement. But there is a more important issue: the mother said the involvement of overcoming the requirement to obtain the joint signatures was possible because the counselling was urgent. That was disingenuous. The form was provided to her in the September holidays and assuming that it was received and sent in September as the mother maintained, the first appointment with the psychologist was not until November 2015.
Mr P’s statement to the Children’s Court was that the father and the child needed counselling. He did not say that the contact was detrimental to the child. He did not say that the child needed protection from the father and, even if he had, Magistrate Levine declined to find that the protection order was needed. The mother’s application in that Court was refused.
The mother has appealed against that Magistrate’s decision but her ground, as written, simply says that the father lied to the Children’s Court. The mother, again in an email to the Court this day has made mention of the fact that that appeal is pending in July. It seems to me that the mother will have two problems to overcome. The first is that she did not give evidence herself in the Children’s Court but, secondly, it seems that Mr P did give evidence and it was not suggested that to me Mr P had lied.
All of the mother’s evidence about her compliance with the obligations relates to all of the 10 allegations. In other words, she says that her same excuse applies to all 10 breaches. I reject her evidence for the following reasons. Nothing corroborates her versions of facts about encouraging the child to go with the father. Without some form of corroborative evidence, I would not accept her version of events. Nothing suggests she endeavoured to explain to the father what the solution was as suggested by Mr P or how they could solve the problem through counselling. Her evidence about wanting to sort out a solution is implausible because of her reticence to communicate with the father. I prefer his evidence to hers.
The evidence of the mother about anxiety was limited to the pre-handover point of time. There is no suggestion of what occurred with the child on weekends thereafter and no indication of attempts to get the child to go once the chest tightness, headache, tears or reticence had passed. That would have been the time to speak to the father, at least on the telephone, and try and work out a solution. The mother did not.
It is very clear the mother does not want contact to occur. At its highest, the child’s complaints are that the father does not care for her as well as the mother. Some insight into this came from the maternal grandmother. She said she had spoken to the child during the period of the contraventions and the child had said to her that she was frightened of her father, that he did not look after her, that he did not talk to her, that he pushed her into a pole and then laughed at her, that he takes photos requiring her to pose and that he made her write cards to her stepmother.
When I inquired as to where the fear came from, the maternal grandmother said that the child was frightened that the father would hurt her. There is no evidence, at least for the last five to six years that I can find, to indicate that that has any foundation. It certainly was not the evidence of the mother.

The mother called no other evidence, having been given the opportunity to do so. She had been given permission to subpoena Mr P but she did not attempt to do so until it was too late within the timeframes of the Family Law Rules.
In the emails received by this Court yesterday and read into the transcript this morning, she complains about the fact that the Court rejected her request for the issue of subpoenae. But as I observed at the resumed hearing, she did not send them within sufficient time to enable the witnesses to be called. Even if that had not been a problem, she had not told Mr P that he was needed to be available to give evidence. Mr P seemed content to give evidence in the Children’s Court, but his absence here was remarkable. I have inferred that because of his evidence to the Children’s Court as articulated by the father, he would not have assisted the mother’s case.
In various discussions and in what could only be seen as a submission, as distinct from evidence, the mother asked me to read the affidavit she had filed in respect of the parenting orders variation application she lodged on 18 March 2016. The application seeks four orders, only one of which is relevant to the contravention. The affidavit in support is what the mother wanted me to consider. She said – and some of this has already been covered, but I shall repeat it only from the point of view that it shows just what her evidence is:
[3]The definition of contravention under the Act, section 70NAC, requires either intentional failing or making no reasonable attempt to comply with the order.
[4]Neither is alleged in the application. Therefore, the application is merely observations and contains no allegation of contravention as per Division 13A of the Part.
[5]I have not pleaded to the application with the words taken in their plain and ordinary meanings.
[6]The proper format for an allegation is described and exemplified on the application contravention form.
[7]I have not pleaded to any reasonable interpretation of the application. A reasonable person would be able to follow the description and example for making allegations by his 2nd attempt had he had any allegations to make.
[8]It follows that the application be dismissed, as it contains no allegations of contravention under the Act.
To the extent that the following have any relevance to the contravention – and I doubt they do – the mother said:
[15]That the parenting orders exist to hold parents responsible to the rights of their children, not as a means to control the child or the other parent of the child.
[16]It will be shown herein that the respondent abuses the orders and violates the fundamental principles of the Family Law Act 1975 set out in section 60B and, by extension, the Court established by the Act.
She then said:
[17]S 60CA requires the Court to give paramount consideration to the child’s best interests.
Then she said:
[18]The applicant will show the Court that the application of the rules for determining a child’s best interest as per s 60CC successfully rebuts the presumption of equal shared parental responsibilities under s 61DA.
She then set out sequentially paragraphs making reference to section 60CC. If, as it would appear, the mother drew this document herself, it shows extraordinary detail and understanding – or misunderstanding in some cases – of the law.
Thus, to the extent the mother’s focus was on the child’s welfare, the criticisms show a lack of genuineness when she said that she had always encouraged the child to have a relationship with her father. Actions speak louder than words.
I am satisfied that the mother did nothing to alter the position to enable the child to have a relationship with her father. The orders have stood for years, and it is here that the prior contraventions become relevant. The mother well knew her positive obligations to comply but, more importantly, she had to seek to vary, suspend or discharge the orders if the orders were not in the child’s best interests. She cannot plead ignorance here. She cannot plead that she was only protecting the child for a short period of time. She did nothing. She also did not communicate with the father adequately, in circumstances where, by those very orders, he had equal shared parental responsibility.
Everything points to the fact that her position over the period of the three months was not reasonable. She adopted a negative, rather than a positive, stance. Accordingly, I find each allegation proved.
It is here instructive to look at what previous Courts have said about breaches. It is unnecessary for me to deal with it with great detail, but it is interesting to observe that the first time that a breach was found against the mother was on 15 May 2009 by Monahan FM. The significance of that is that it predates the final orders that were made by the Court on 4 February 2011. His Honour said:
[94]These are serious breaches by the mother. As previously stated, I must decide whether the contraventions fall into the “less serious” or “more serious” categories in Division 13A. Given that this is the first time that the mother has been found to have contravened court orders without reasonable excuse, I believe the matter should be dealt with under the provisions of subdivision E, i.e. the less serious contravention provisions.
[95]This finding accords with a submission made by Mr Marchetti for the father in relation to penalty. That all having been said, I note that the Court may have been more inclined to deal with the contraventions under the more serious provisions had the mother previously been found in breach.[1]
[96]Keeping in mind the focus of the Court in relation to penalty must be to ensure or enforce future compliance with court orders, I am satisfied that the imposition of a bond under section 70NEB is appropriate. Accordingly, I propose making an order today under section 70NEB(1)(d) that the mother enter into a bond pursuant to section 70NEC in the sum of $1500, without surety or security for two years, to be of good behaviour and to abide by the orders of the Court.
i)[1] See for example M v G (No 5) (2004) FMCAfam 387 at [5] (per Ryan FM).
What is interesting about that particular application is that the finding of the Court was that the breaches were serious. That seems to be the first time that a Court had anything to deal with of that nature.
The second matter seems to have arisen on 1 February 2013 before Dessau J. Dessau J, I point out, was the trial judge who made the final orders on 4 February 2011. Her Honour was therefore cognisant of exactly what the problem in this particular case was. Her Honour said, by reference to the final orders that had been made two years before, that the father had not seen the child for a period very similar to the period that I am dealing with here.
Her Honour noted that the mother denied all of the seven allegations before her, and she found each of them proved. Her Honour went on to release the mother on a bond. The interesting thing about that is that it was the second bond, because Monahan FM had released the mother on a bond as well.
The bond by Dessau J was for a period of two years, requiring her to be of good behaviour and to comply with parenting orders made under the Act. It was a condition that she comply. It is not a matter of the evidence before me relating to the contraventions that I have to decide, but it was certainly part of the father’s application filed in December 2015 that those breaches that he wanted initially to proceed with had occurred during the bond period.
An examination of the reasons of Monahan FM lead to a reasonable reader concluding that the mother was doing her best to treat the orders as anything but a priority. Here, the conclusion of his Honour that the breaches were serious and might have been dealt with severely but for the father’s position. In other words, Monahan FM had not only taken the view that they were serious, but he would have taken a more serious approach had it not been the request to the contrary by the father.
In the 2013 breaches before Dessau J, it is not necessary for me to say more than her Honour was troubled about what was occurring. Her Honour said:
[11].The Family Law Act is clear. A court order must be complied with. Section 70NA(c) makes it clear that a contravention occurs if a party to an order intentionally fails to comply or makes no reasonable attempt to comply with an order. The Act goes on to make it clear that there is a reasonable excuse for contravening a parenting order if the party to the order believes on reasonable grounds that their actions were to protect a child’s health or safety and that they should be reasonably excused.
…
[13].There is no dispute that Mr Grant has not seen the child since 12 September last year. Ms Aiden says that on 12 September the child was unwell and, therefore, simply could not attend the Wednesday evening time with her father. Thereafter she says that the child has not wanted to see her father. She says that she has complied by doing all that she could reasonably be required to do, and she has complied with orders as much as she possibly can. She says that she has quite specifically complied with the parts of the February 2011 orders that required, for example, for her to arrange after-school care for the child to be collected there by her father, and that by complying with orders that when the child is in her care she is responsible for the child’s day-to-day care, welfare and development, in that context she has exercised her parental decision to protect her daughter.
[14].I am satisfied that the mother has not made reasonable attempts to comply with these orders.
Her Honour’s reasons can be read in the anonymised decision of Grant & Aiden (2013) FamCA 154. The remarkable thing about her Honour’s reasoning is that it is very similar to what I have found here. It looks like history is repeating itself.
The starting point here is to determine which subdivision the breach fits into. Subdivision C applies where the respondent has been found not to have committed a contravention of the order. That does not apply here. Subdivision D applies where a contravention is established but the respondent proves he or she had a reasonable excuse. The Court is empowered in that case to make a compensatory time order if time is what was lost. Subdivision E applies where there is a contravention of a less serious nature but without reasonable excuse. It applies where there has been no previous finding of contravention or, if there has been action taken on a contravention previously, the Court is satisfied that subdivision E should apply. I have said previously that this legislation is confusing.
Here, I am satisfied that the breach fits into subdivision E. The distinction between subdivisions E and F lies in the standard of proof. Subdivision F refers to the more serious breaches, and the armoury of outcome for the Court is much more serious. I could not be satisfied here beyond reasonable doubt, which is the standard of proof for the purposes of the various aspects of the outcomes in subdivision F, because such a standard requires a proof of a very high and subjective nature, and I have some difficulty here as to whether the mother is deliberately defying the orders or whether she has some form of view that cannot be dislodged but she distinctly believes it.
Absent some psychiatric or psychological evidence, I would be reluctant to make a finding about the fact that her intentions to defy the order are deliberate. It must, however, be said that, having regard to all that I have read, particularly going back to the reasons of Monahan FM, the mother is getting very close to the point where she is exposed to subdivision F.
Having said that, in the meantime I am satisfied on the balance of probabilities that subdivision E should be applied. But therein lies the problem.
Section 70NEB provides a number of opportunities for the Court to make orders. In summary, the orders include directing a party to approach and attend a post-separation parenting program. Logic dictates that after years of what I have been reading about since 2008, there is little prospect that a parenting program would make any difference.
Another possibility is that the Court orders that a person who has lost time be compensated it. I shall return to that.
A third is to adjourn the proceedings to allow parties to file applications under part VII of the Act to vary the extant orders. That has certainly happened, so there is no need for me to adjourn the proceedings for that purpose.
A fourth possibility is that the Court could order that the person enter into a bond. I rhetorically ask what would be the point of asking the mother to enter into a bond in circumstances where she has had two until now. She certainly knows that a bond is meant to require compliance with the Court orders, yet the evidence which the father apparently was going to lead was that the bond covered a period where breaches had occurred. A bond seems to me to be a pointless exercise.
A Court can also impose a fine but, as I observed in discussion in final address, all that would do is take money out of the child’s mouth. The mother complained that the father was not providing child support obligations but she conceded that he had recently been made redundant. There is no evidence that the father has been avoiding his obligations. On that basis, the only person who seems to be supporting the child at the moment is the mother, although she was extremely secretive about her position.
There are other provisions in section 70NEB in relation to costs. Section 70NEB(4) is the difficult hurdle that I now face. It relates to section 70NEB(1)(b), which is the compensation order. Subsection 4 reads:
If the contravention is a contravention of a parenting order in relation to a child and the contravention resulted in a person not spending time with the child, the Court must consider making an order under paragraph 1(b) to compensate the person for the time not spent as a result of the contravention.
Subsection (5) then reads:
The Court must not make an order of that nature if it would not be in the best interests of the child for the Court to do so.
Having regard to all of the provisions in section 70NEB, the only option open is a compensatory time order. The difficulty is how do I determine that it is in the child’s best interests or, rather, contrary to the child’s best interests that the order should be made. The evidence, unfortunately, by virtue of the very nature of the contravention, means that it is difficult to know what is happening in the child’s life.
Today I have the email from the mother attached to which is the certificate by Mr P, who indicates that the child certainly was anxious. But it also does not say that he did not recommend counselling. To determine what is in the child’s best interests, Part VII of the Act requires the Court to turn to section 60CC. But again, in this case, the evidence is lacking as to how that could be determined. The only solution otherwise seems to me to look back over the various litigation and in particular the orders that have been made. This is how I propose to determine what is in the child’s best interests here.
In 2011, when the orders were made, there was very little information upon which I can now determine this outcome. That is because, for reasons that are a little hard to follow, no written reasons were given by Dessau J. However, what her Honour did do was order a transcript of the discussion be obtained and be placed on the Court file. What is remarkable about that transcript is the discussion between her Honour and the mother. Her Honour sequentially dealt with how to work out the disputed issues. There were agreements between the parties about a number of matters.
Dessau J was told that, although the father had not seen the child for about six months, it was amazing to see how the child and the father resumed their relationship as if nothing had happened. Those particular words were not the words of the mother but, indeed, of the father, but the mother commented on those words and said that, obviously, that occurred because she had been the one encouraging the child to see her father. So notwithstanding the fact that there had been a long gap, the child seemed to have no problems having the sort of relationship that the father wanted.
It is significant that in 2011, when the child was only four and a half years of age, there was significant contact periods ordered by agreement between the parties. Only a year later, the parties were having problems.
In 2013, the contravention took place. Dessau J had no difficulty then in making clear that contact was in the child’s best interests. It was not suggested in 2013 that the child should not have been going with her father.
Bearing in mind that the same basis applies in both the 2013 contraventions as it does in the 2016 ones, it is hard for me to conclude anything different than that the relationship between the father and the child has always been in this child’s best interests but, for reasons that remain obscure, the mother thwarts it.
If I was to examine each of the section 60CC factors, the primary considerations are the fact that the child should benefit from having a meaningful relationship with the father, but that must always be subject to preventing any harm of either a physical or psychological nature. There is no evidence here that would mean that I could be satisfied that there is any harm to the child by the existing orders. On that basis, the child is entitled to have a meaningful relationship and benefit from it with her father.
If I turn to each of the factors in section 60CC(3), I am not sure that I could make findings in relation to the question of parental responsibility. The findings that I have just made would tend to suggest that the mother is an irresponsible parent. The mother’s evidence, as I have outlined, indicates that she simply sees the child as resistant to going, but she does nothing further about it. In my view, that could be seen as irresponsible parenting.
There are no practical considerations if the child is living in Melbourne. That gives rise to an unusual problem also in this case. It transpired during the second day of the hearing that the mother has unilaterally taken the child out of school and moved to live somewhere in North Queensland with the maternal grandmother. Having said that, the lease on the property that she had in Melbourne does not expire until later in the year.
V was clearly in school and, apart from the anxiety to which I have referred, seems to have been doing well. There is no reason for the child to be in Queensland at this stage, certainly not on the evidence of the mother.
The mother consistently talks about family violence and family violence orders. It would seem that there was a family violence order. Dessau J was aware of it and indeed, as I have already said, her Honour made a specific parenting order that brought the family violence order at the State level well and truly into focus.
The one question that remains uncertain in my mind is the question of how the child would react to an order that she simply resume the contact with her father. To simply resume the contact with her father would make a farce of the whole of this proceeding, not to mention what has gone on over the last five years.
Section 70NEB refers to compensatory time. Compensatory time in this case is hard to work out. In my view, the section does not preclude the Court from taking into account the period beyond the last allegation. That being the case, this child has missed at least three full weeks of time with her father since August last year. What would have been a very appropriate compensatory outcome, if I could be satisfied it was in the child’s best interest, would have been for the child to leave the Court today with her father and spend the rest of this week and the entire school holidays in her father’s care. During that period of time, a Court could have a more careful examination of what future orders should be made bearing in mind the father’s current application is for a change of residence.

The mother’s application is not only for a discharge of the orders, but a complete cessation of any contact. The positions could not have been more stark.
The dilemma I immediately face, apart from the evidentiary one to which I have referred, is that the mother is not here today. the child has not been produced pursuant to the order that I made that she be produced at 9.30 to the child centre so that a determination could be made as to what should happen.
I formally find that the contraventions are proved. The question of what order should be made is now the subject for discussion.
I have just been handed a medical certificate from the Q Medical Centre in Suburb R which would tend to suggest that the mother has returned from Queensland, which certifies on 20 March, so two days ago, that (the mother) is receiving medical treatment for an acute anxiety and medical condition and she has been medically advised not to attend Court for a minimum of two weeks.

RECORDED : NOT TRANSCRIBED

ORDERS DELIVERED

This is an oral application for an order that the mother return the child to live in Victoria from the State of Queensland. It is difficult to describe exactly how all this has occurred. Suffice to say that today was to have been the delivery of judgment and the making of orders arising out of a contravention application against the mother brought by the father. Pursuant to that judgment, I have found that the mother has contravened the orders.
The mother has sent some emails today indicating that she is ill and, indeed, later in the morning sent in a certificate from a doctor. That is not the appropriate way to deal with that sort of application, particularly when the mother full well knows the way the Court system operates. She is a consistent litigant and, as I have observed in the judgment, she is very well prepared and understands the relevant provisions of the legislation. In her absence, I have delivered a judgment, and I now have an application to have the child returned to Victoria.
How the awareness came about of the child not being in Victoria was that the mother indicated last Friday that the child was in Queensland and, in cross-examination on the contravention application, she conceded that she had taken the child there, where she is currently living with the maternal grandmother and, it would appear, the maternal uncle.
In cross-examination, it also transpired that the school had not been told of the removal of the child midway through the term and also that the lease on the premises where the child was otherwise living (which she told me was close by to the school) is still continuing until later this year.
The mother conducts a business, and she was quite explicit in indicating that she did not want the Court to know the details of that business. Suffice to say that she was troubled about an adjournment until today because she said that Tuesday was a very busy day. There is no logical reason, therefore, why I would not conclude that the business can be conducted from Melbourne as much as it can be from North Queensland.
The power of the Court to order a child to be brought back to a particular place to live has been canvassed in two specific cases. One was the decision of Boland J sitting alone as a single judge of the Full Court in Morgan & Miles (2007) FamCA 1230, where her Honour decided that the power was open for a Court to make the determination that a child could be returned. In the same year, the Full Court considered the same question in Sampson & Hartnett (No. 10) (2007) FLC 93-350.
There were questions of practicability when the mother removed herself from the area and then indicated that there was no power for the Court to order her to return.
The majority, Bryant CJ and Warnick J, said that if the power of the Court was available to prevent someone from moving, the power must be there for the Court to make them return, but their Honours went on to say that the circumstances under which the Court might exercise that power were quite extreme. Kay J doubted, if not disagreed, with the majority, indicating that he did not think the power was there.
On the basis that the Full Court has said that the power is there, albeit that it should be rarely exercised, this is a case where I think it should be exercised to insist that the mother bring the child back. All of the problems that might usually arise about the financial aspects as well as the availability of accommodation are not problems here. All of the other usual factors about concentrating on children’s welfare, such as ensuring there is stability, are not here.
I have no understanding other than the fact that the child is supposedly living with the maternal grandmother. It seems to me that the child has been uprooted without any explanation. It is significant in this case also that there has been extant for a number of years an order for equal shared parental responsibility. It is significant also in this case that the parties were in the Children’s Court in Melbourne only days ago, and the issue there was about an intervention order.
Although – and I am certainly not making this finding – it looks remarkably like this has been self-help on the mother’s part, at a time when there are applications about the residence of the child pending, I think it is in the best interests of the child that she returns.
Section 60CA of the Act says that a Court should not make a parenting order unless it is satisfied that it is in the child’s best interests. Again, I am hampered in knowing exactly what is in the child’s best interests, but it seems to me that the Court on a number of occasions has found that it is in a child’s best interests for there to be contact.
Absent some plausible explanation by the mother why this is all occurring, I think the principles as outlined in Goode & Goode [2006] FamCA 1346; (2006) FLC 93-286; (2007) 36 Fam LR 422 of the need for some sense of stability on an interim basis are the critical determining factors.

I certify that the preceding One Hundred and Thirty Nine (139) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 March 2016.

Associate:

Date: 1 April 2016

[2016] FamCA 197

22 March 2016

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