Grant and Aiden

[2013] FamCA 154

FAMILY COURT OF AUSTRALIA

GRANT & AIDEN [2013] FamCA 154

FAMILY LAW – ORDERS – CONTRAVENTION APPLICATIONS

APPLICANT: Mr Grant

RESPONDENT: Ms Aiden

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 5094 of 2008

DATE DELIVERED: 1 February 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Dessau J

HEARING DATE: 1 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Marchetti

SOLICITOR FOR THE APPLICANT: Septimus Jones & Lee

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. That charges 1 and 7 of the father’s Contravention Application against the mother filed 1 November 2012 are dismissed.

2. That charges 2 to 6 of the father’s Contravention Application against the mother filed 1 November 2012 are proven.

3. That the mother shall enter a s 70NEC bond for a period of two years to be of good behaviour and to comply with parenting orders made under the Family Law Act.

4. That the mother shall have leave to withdraw her Initiating Application filed on 30 November 2012 and it is hereby withdrawn.

5. That the father shall have leave to withdraw his Contravention Application filed 24 January 2013 and it is hereby withdrawn.

6. That paragraph 5(a) of the orders of 4 February 2011 shall be varied so that for the first three alternate weekend periods due to the father under paragraph 5(a), the child shall instead spend time with the father from 10.00am until 5.00pm on Sunday, to start and finish in the M suburb Police Station, the first such Sunday being 10 February 2013 so that the alternate weekend periods under paragraph 5(a) resume on 22 March 2013.

7. That after paragraph 5(a)(iii), 5(b)(iii) and 5(e)(ic), the following shall be added as paragraph 5(a)(iv), 5(b)(iii)(x) and 5(e)(ic2) respectively:

   “That the child shall attend and remain in the after school care program that day from the end of school until her time with her father commences.”

8. That in paragraph 9 of the orders of 4 February 2011, the words “B Street Contact Centre” (S Street, R suburb) and if the centre is unavailable on a particular occasion changeover shall take place on that occasion at the “R suburb Police station” shall be replaced by “M suburb police station”.

9. That paragraph 8 of the orders of 4 February 2011 shall be amended by adding at the end “and the wife can telephone the child in exactly the same terms during all school holiday time she spends with the father.”

10. That the mother is hereby restrained by herself, her servants or agents from continuing the child’s attendance at the sexual assault clinic at A Hospital.

11. That the mother shall pay the father’s costs of this application fixed at $5500 such payment to be permanently stayed unless a breach of the bond entered this day is proven against the mother.

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

1. In February 2011, I made final parenting orders that included orders for Mr Grant to spend time with the parties’ now six and a half year old daughter, V, (“the child”) on alternate weekends, alternate Wednesday evenings and school holidays.  He has not seen his daughter since August 2012. 

2. He filed a Contravention Application on 1 November 2012, supported by his affidavit filed 1 November 2012, his affidavit filed 26 November 2012, the affidavit of his partner, Ms C, filed 26 November 2012, the affidavit of her mother, Ms D, filed 26 November 2012, and the affidavit of his aunt, Ms E, also filed on 26 November 2012.

3. On 30 November 2012, Ms Aiden filed an Initiating Application seeking the discharge of all the parenting orders, and orders that the child live with her, that she have sole parental responsibility, and that the child spend no time at all with the father.  She also sought various interim orders, but the upshot was that the child was not to spend time with the father in accordance with the existing orders. 

4. On 24 January 2013, Mr Grant filed a further Contravention Application, alleging ongoing contraventions since his first application.  It was served on the mother only a day or so before the first Contravention Application was due to be heard before me yesterday.  It was neither filed nor served in time as per the Family Law Rules. 

5. Mr Marchetti, counsel for Mr Grant, agreed that as Ms Aiden objected to it being heard, it could not go ahead at this stage.  Conscious though of the ongoing issues, it was clear to me that I should hear, at least, the first Contravention Application, and the parties agreed. 

6. In that Contravention Application, Mr Grant alleged seven different contraventions between 24 August and 31 October 2012.  I note that Mr Grant is, as I have said, represented by counsel.  Ms Aiden is representing herself.

7. I carefully followed the rules in accordance with r.21.08 of the Family Law Rules as to the appropriate procedure at a contravention hearing.  Ms Aiden denied each of the seven allegations before me. 

8. During the applicant’s case, the seventh charge was noted to be dismissed.  It alleged that Ms Aiden had failed to attend a post-parenting course in compliance of orders.  It was wrong.  She produced a certificate proving that she had completed the course. 

9. At the end of the applicant’s case, the first charge was also dismissed.  It related to weekend time on 24 August 2012 when the child did not attend.  There were sufficient surrounding circumstances to support the real likelihood of the child’s illness as claimed by the mother and her incapacity to attend on that day. 

10. That left five charges.  Ms Aiden said she had made every reasonable effort to comply in relation to each one of those occasions when the child did not see her father in accordance with the existing orders. 

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. 

12. This case has proceeded on the civil standard of proof, being on the balance of probabilities.  When it comes to the issue of a reasonable excuse it is generally for the respondent then to satisfy the court on the balance of probabilities as to the reasonable excuse that is claimed. 

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. 

15. Let me deal first with 12 September 2012.  Ms Aiden says that the child was delivered home to her place after school, which is directly opposite the school, by another parent at about 3.35 pm.  She says that she believed the child had a temperature and she said she didn’t feel well.  She did not take the child’s temperature but felt her and said she was hot.  She gave her Nurofen and put her to bed.  She says that she had done all that she could do on that occasion, again, by having arranged after-school care, by having exercised her day-to-day care of the child, and by looking after her, putting her to bed and then advising the father by text message.

16. It can be difficult to assess the evidence of a parent as to events taking place outside the other parent’s direct observation.  And I do note that Ms Aiden called no witnesses in support of any of the aspects of what occurred for the child on the alleged days of contravention, although she, of course, has called another witness from a sexual assault clinic and I will refer to her in a moment.  It is important then to assess things by the surrounding circumstances. 

17. The surrounding circumstances in relation to this first alleged contravention of 12 September 2012 include that within about 11 minutes of being told that his daughter was unavailable and that she had a temperature and that “she has popped into bed”, the father responded with a text, “I’m concerned.  Can I call her?”  Ms Aiden did not reply.  The next text that was sent by her was not until 12 days later in relation to a completely separate telephone call. 

18. Ms Aiden’s evidence was that she used one phone specifically for Mr Grant to receive and send calls, and for him to speak to the child.  She said she did not look at that phone again after she had sent the message advising him that the child was unavailable.  That is most unlikely. 

19. Although Ms Aiden has described a situation she asks me to accept, that until the middle of last year or until these incidents the contact had always run smoothly and she had been providing the child for time with her father, it is not realistic to suggest that it had gone without many, many issues and nagging aggravations along the way.

20. This period in September 2012 followed an extensive period of ill-health for the child and her unavailability on many occasions.  The mother knew that the father was concerned.  It was obvious from correspondence and messages between them.  It is most unlikely that she simply would not have looked at her telephone for such an extended period, having advised him that the child would again be unavailable that day.  She could have expected a response.  If it is true that she simply did not look at her phone, it is slack and uncaring, and shows no genuine attempt to be facilitating this relationship.

21. The fact that she simply sent a message 10 minutes before the pick-up time, and then never answered his reasonable query in response, does not support her account that she honestly wanted to respond to the orders but simply could not.  It smacks instead of gamesmanship. 

22. Let me turn then to the 30 September 2012 allegation, and the other allegations that flow from it.  Ms Aiden’s account is that shortly before the child was due to be dropped at M suburb  Police Station to spend a week school holiday time with her father she had hidden under furniture at home, clung to her mother, cried in a distressed way and said, “I don’t want to go to see my father”, or words to that effect.

23. She said the child  said she thought she would vomit, and she noticed the child had gone very pale and “smelt like gastro”.  Ms Aiden says that she called a taxi because by then it was too late to get to the police station by public transport.  She took her teenage boys with her.  They sat either side of the child in the back of the taxi.  She left the child and the boys in the taxi.  She said that the child had told her she would not get out of the car.  She went into the police station and explained to the police officer that the child did not want to see her father.  Mr Grant came to the police station.  He says quite simply he was told that the child was not available to him.

24. Ms Aiden says that the email exchange between her and the father that followed that incident showed her genuine attempts to protect the child and to get to the bottom of what was worrying her and her endeavours to make arrangements that were appropriate to protect her daughter.  She blames the father for not responding to the genuine needs of the child at that stage. 

25. It is clear that Ms Aiden sent him an email on 2 October 2012, saying that she had been trying to make sure that the child saw her father, but that as she got older she was “not as accepting” of the orders.  She referred to a similar incident to the one on 30 September, as that on 31 August, but not quite as serious in nature.

26. I will return to that in a moment.  She again said she was the one responsible for making the day-to-day decisions about the child’s welfare when in her care.  She wrote that day to the father:

    You agree that there is a concern for [the child’s] welfare and any action that knowingly causes apprehension of harmful contact in another person is assault.  You have asked me for an alternative and suggest we try day contact, which may create less apprehension in [the child].  We could try again this Sunday from 10 am to 5 pm.

27. The mother was very critical of the father, that he responded by reminding her of her legal obligations to follow orders rather than, as she perceived it, addressing issues that needed to be addressed for the child. 

28. From my perspective, there was much about this 30 September incident, and the mother’s conduct, that was mysterious and raises immediate concerns and suspicions about her efforts in relation to these orders.

29. First, on 31 August 2012, according to the mother, the child had said that day, before she was being taken just across the road to after-school care to meet her father, that she did not want to go.  According to Ms Aiden, the child got more and more upset before the departure.  She even, whilst standing outside the home, tried to run away from her brother, who Ms Aiden had arranged to take her across the road to school.

30. Ms Aiden directed the brother to pick her up and carry her there.  It was never made clear why Ms Aiden did not simply step in and take her daughter herself, as the adult involved, particularly if she were witnessing the sort of dramatic event that she claimed.  In any event, what is clear from that earlier incident is that, once the child’s brother left the school and the teachers were able to distract her, and her father arrived, she settled down and was happy enough to go with him.

31. In light of that experience, it was never made clear to me as to why the mother did not actually make an attempt to physically remove the child from the taxi on 30 September 2012.  To the contrary, she was passive in her approach to ensuring that the child went with her father whilst outside the police station.

32. It was really not made clear to me as to why she needed the two boys flanking the child in the taxi.  Both of them have a seriously fractured relationship with Mr Grant.  They have or have had intervention orders against him.

33. It was never made clear to me why she did not contact the father in some way that night, but waited until the following morning, even though his precious holiday time had been interrupted, and that she did not send an email until the following day, which then said:

    Just before it was time to leave home yesterday, [the child] hid under a table several times, said she was going to vomit and cried, saying she did not want to go;  she then started to smell like gastro.  I attended changeover with her, but she would not get out of the taxi.  This I relayed to the police officer before you arrived.

34. She also did not adequately explain why she offered for Mr Grant to see his daughter on the following Sunday.  The whole week was his holiday time, under the orders.  If she was as concerned as she said, it is hard to understand why she thought it was appropriate to send her on Sunday.  If she thought it was appropriate to send her on Sunday, it was not properly explained why she could not send her earlier.

35. Mr Grant had complained in an email to the mother that she had not offered the earlier days of the week.  She seemed critical and dismissive of Mr Grant about that.  His query seemed entirely reasonable to me.  I cannot be satisfied that Ms Aiden did all that she could and nor can I be satisfied that she had acted reasonably in failing to have the child attend the school holiday time with her father.

36. Moreover, that Sunday time then did not occur.  I say that, conscious that it was not an alleged contravention.  I refer to it as assisting me in my findings in relation to the 30 September date, and an assessment of the following dates of alleged contraventions.  She blamed the father for it not occurring, saying that she let her know too late in the piece.  Again, I do not accept that as reasonable.  It is clear that there was communication between them leading up to 7 October, that is, the Sunday. 

37. He had told her by email, on Friday, 5 October at 5.35 pm:

    I will be attending [M suburb] Police Station Sunday at 10 am.  This is not an approval of your actions but the only option you have offered for me to see [the child].

38. Ms Aiden says the father’s dates on emails are frequently different from her printout.  She shows her printout of that email, or she says that her printout of that email was in fact on the following day, 6 October 2012.  She criticises the father for not texting her to let her know that an email had been sent.  She pointed to the fact that he had, at least on occasions previously, done just that. 

39. It struck me as absurd to suggest that he was the one who carried that responsibility, and that Ms Aiden would blame him for her not having checked her email to see if the father was going to attend on Sunday, as had been proposed.  Whether or not she chose to regularly check her emails was very much up to her.

40. When it comes though to trying to persuade me that she had made all reasonable efforts for the child to see her father in accordance with orders, this conduct, in the midst of her failure to make the child properly available on 30 September, and then the subsequent failures through October, gives me much insight into what was a half-hearted attempt on her part to ensure that the child went with the father.

41. As to the remaining occasions the subject of this Contravention Application, being 10, 19 and 24 October 2012, the mother relied on more of the same, to the effect that the child did not want to go and that it was her responsibility to act protectively of the child.  She referred numerous times to a “significant change in circumstances” from 30 September 2012, being the time from which she said the child simply refused to attend.  She spoke of genuine concerns for the child’s wellbeing.  She spoke of suggested counselling or a suggestion she made to the father that they attend counselling at a Family Relationship Centre.

42. But I accept the father’s evidence that he had checked with the Centre and found that they would not facilitate such counselling with the intervention orders in place.  She cannot attribute blame on the father’s part that that did not occur. 

43. When pressed as to the concerns for the child’s welfare whilst with the father, throughout her evidence Ms Aiden spoke of his violence during the relationship, I note issues very much at the heart of the case that I had already dealt with in February 2011.  She spoke of his mistreatment of her older sons, also very much already at the heart of that case.  She has referred in her affidavit in support of her Application to discharge the parenting orders, to the fact that Mr Grant has a 19-year-old daughter who also asked not to see her father when she was seven, again something I note that is not new since the orders of February 2011.

44. She claims that the Family Court orders were inconsistent with the previous intervention orders; again, not something that has arisen since the orders were made.  She claimed that Mr Grant was “inflicting more family violence” and that he had continually “behaved abusively towards [the child]”, and I shall return in a moment to the only part of the evidence about that.  It certainly did not exist in the affidavit to which I have referred, and about which she was cross-examined.  She also complained that – in that affidavit that “literally invariably [the child] has returned from visits with her father with some degree of injury” and she referred again in her evidence to bruises and abrasions and sunburn.  Mr Grant has denied any, other than normal, childhood injuries.

1. He called his partner, a very impressive woman, a primary school teacher, her mother, and his aunt, all of whom were impressive witnesses and all of whom gave evidence of a very happy, healthy child, enjoying her father’s company. 

2. Otherwise, the mother claimed that the child has been in better health since not seeing her father. 

3. I do note, and it is of some material importance, that the application made by the mother to stop the father’s time with the child was only made on 30 November 2012, that is, after the father had brought these contravention proceedings.

4. In cross-examination, the mother finally expressed the concern that the child has specifically alleged to her that her father “hurts and hits her”.  This emerged only at the end of cross-examination.  It was not put by the mother to the father, nor to his witnesses, and it became clear in the evidence that his partner has been with him, with only the most minor exception, virtually for every minute of every visit.

5. It was not stated by her in evidence-in-chief despite repeated open-ended questions by me as to what else she would like to add, nor when asked numerous times in the course of her evidence why she did not send the child.  What did become evident was that this child has seen a counsellor at a sexual assault clinic on eight occasions since November 2012.  I cannot criticise the mother for the child going to that counsellor.  In fact, it arose as the result, ironically, of the notification that the father made to DHS expressing a concern about the child perhaps sleeping in the same bed as her older half-brother N.

6. I am critical though, that the mother did not ensure that the father knew of the counselling.  It’s a cute argument on her part that because it was arranged by DHS, my orders of February 2011 that made it very clear that neither party was to take the child for counselling without the other’s consent and that they needed to keep each other informed of medical issues, did not apply.  I do agree entirely that she may not have had the choice as to whether the counselling occurred, but certainly the father should have known.

7. In any event, the evidence of the counsellor, Ms F was interesting from a number of points of view.  Most pertinently, despite every effort on the mother’s part, and every opportunity being given to Ms F, she certainly did not talk of any disclosures from the child of being hurt or hit by her father.  She did speak of the child talking about sadness, about finding it difficult if her father yelled at her, and she told of an incident where she collected some eggs and was yelled at, and of another incident where she opened a gate and was yelled at.

8. Beyond that, the sorts of issues that she disclosed in terms of a general feeling of worry and concern of anxiety surrounding her time with her father, knowing the history as I know it, it makes me understand that there is an enormous amount of complexity that would have to be unravelled before you could form any concluded view as to what was actually going on for this child.  Ms F has not been able to approach this case in that way.  She is a social worker who operates within the constraints of a sexual assault clinic, and could not know and did not know of the complexities of the case.

9. Her evidence in some regards was unimpressive.  It became clear that on 8 January, she had spent a substantial part of the session talking to the mother about these Court proceedings, which was not something that would have been clear from the way she described the child as her client and the child as the major one that she spoke with except on the first consultation when she took a brief history from the mother.  It only came to light because Mr Marchetti for the father looked at her notes.

10. Incomprehensibly, she had also spent a substantial part of that session talking to the child about Court proceedings when the child was not going anywhere near the Court proceedings, and is aged only six-and-a-half.  She did say that the child was not understanding what she was saying.  I am not surprised by that.  I am concerned though, that it would have been bewildering and potentially frightening for the child, and when Ms F told me that it was not about these Court proceedings, it begged the question, what Court proceedings.  There were no others, and that did not seem to sit with her notes which had clearly noted 31 January as the date of Court proceedings. That, of course, was the date of these proceedings.  I was unimpressed with her evidence.

11. I note one other unimpressive aspect of the mother’s evidence.  On 6 July 2012, her daughter’s GP set out a certificate in relation to the child’s ill health.  The mother passed that onto the father, probably because it showed why some times with him had been missed.  However, a referral for the child from the GP to a psychiatrist, dated 24 July 2012, suggesting that the child’s ill health or symptoms were possibly somatic, that is, physical symptoms but with a psychological or emotional foundation, was not disclosed until it was produced yesterday in Court.

12. Ms Aiden’s answers about that were disingenuous.  She said, “Oh, well, the father had access to the child’s files,” but of course he would not know that they needed checking at that time to see that referral.  She said that she had to tell him of various medical issues, but she seemed to suggest that this did not fit within that definition, and she said that she could not take the child for counselling because she was precluded under the orders, so that is why she did not tell him.  But that ignores and overlooks that she could take the child for counselling if the father had been told and consented.  He was not able to consent because he was not told about it. 

13. Overall, for all these reasons, I am not satisfied that Ms Aiden has made reasonable efforts to comply with these orders, nor that she has had any reasonable excuse for the contraventions.  I find the five alleged contraventions in relation to 12 September 2012, 30 September 2012, 10 October 2012, 19 October 2012 and 24 October 2012 proven.  

ORDERS DELIVERED

1. Now, that leaves two questions:  (1) is what do I do now in terms of the punishment or the response to that application, and (2) what do I do in relation to the mother’s application.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 1 February 2013.

Associate: 

Date:  1 February 2013