Greenfield & Conley (No 4)

[2021] FCCA 2152

FEDERAL CIRCUIT COURT OF AUSTRALIA

Greenfield & Conley (No 4) [2021] FCCA 2152

File number:	DNC 314 of 2019
Judgment of:	JUDGE YOUNG
Date of judgment:	5 August 2021
Catchwords:	FAMILY LAW – Contravention application – whether the father contravened the orders made in the United States of America and registered in Australia – where there was insufficient evidence to find that the father contravened the orders – no contravention made out – application dismissed.
Legislation:	Family Law Act 1975 (Cth) s 69ZT
Number of paragraphs:	22
Date of hearing:	5 August 2021
Place:	Darwin
The Applicant:	Appearing on her own behalf
Counsel for the Respondent:	Mr Treviño QC
Solicitor for the Respondent:	Connolly Suthers Lawyers

ORDERS

DNC 314 of 2019

BETWEEN:

MR GREENFIELD

Applicant

AND:

MS CONLEY

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	5 AUGUST 2021

THE COURT ORDERS THAT:

1.Counts 5 to 9 of the Contravention Application filed on 26 August 2020 be struck out as failing to disclose a contravention.

2.The Contravention Application filed on 26 August 2020 be otherwise dismissed.

3.The respondent father may provide written submissions in relation to costs within seven (7) days of the date of this order and the applicant mother may file any responding written submissions within a further seven (7) days.

AND THE COURT NOTES THAT:

A.The parties indicated an intention to give the child privacy during his calls by video, telephone or other electronic means to the other parent;

B.Each party indicated that they would refrain from discussing any matter concerning parenting orders, time spent with each parent, litigation or similar matters in the presence of the child; and

C.The notations at Paragraph A and B do not constitute an undertaking or a “Subdivision C parenting order” pursuant to the definition in the Family Law Act 1975 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Greenfield & Conley (No 4)  is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

Adjournment application

1. This is an application for adjournment of a contravention application at 2:30pm after the bulk of the evidence has been dealt with.  The applicant says that she was taken by surprise by counsel for the respondent’s written submissions as to a no case submission which was provided before the luncheon adjournment.  The submissions, while in writing and running over a number of pages, are entirely conventional and do not raise any matter that could not have been anticipated, certainly be a legally trained person. In my view, the fact that Ms Conley, who is appearing for herself, did not anticipate them says nothing about the reasonableness or otherwise of the submissions. I consider that that is simply one of the matters that arise when an unrepresented party is unfamiliar with process.  In my view, there is no disadvantage to her in being called upon to deal with the matters.  They are simply submissions about whether or not there is evidence to support contravention allegations.  There is no complexity or difficulty in it.  She is an intelligent and well-educated person.  She has represented herself for some years in this litigation, and conducted herself generally with a degree of capacity and intelligence.  I do not accept that she is disadvantaged in any way by the submissions.

2. Secondly, the applicant raises the point that she did not understand that the matter was set down for hearing today.  I reject that claim.  On 5 March 2021, she wrote to my Associate and said:

   I see that the next court date will be on 30 July 2021. Could you please advise on what type of hearing this will be – is this for the trial or a hearing prior to the trial?

3. My Associate wrote back in these words:

   The hearing on 30 July 2021 is to be conducted for the purpose of hearing the contravention application.

4. There was no further inquiry from Ms Conley. I do not accept that a claim raised at 2.30 pm in the afternoon of a hearing that she did not realise the matter was due for hearing is to be accepted as reasonable.  I make no comment about the truth or otherwise of her belief but I do not consider it is reasonable. 

5. Ms Conley also says that she has a two‑month-old child at home and has not made appropriate arrangements for childcare.  That is regrettable and inconvenient.  However, we are very near the end of the hearing and as the matter has substantially been dealt with it would be a great shame if it had to be adjourned.  I will ensure that we try and finish the matter as quickly as possible.  The application is refused.

   Contravention application

6. This is a contravention application brought by the mother.  She originally alleged nine counts in the contravention application. Five of those counts have been struck out because I concluded that there was no evidence to support them.  That leaves four remaining counts. 

7. Both parties were cross-examined and I have reservations about the reliability of each witness.  I consider that the evidence was clear that both parties have been enmeshed in conflict with each other for a long time. Both parties hold the other in relatively low regard and I am satisfied that any conduct by the other party that is in any sense ambivalent or ambiguous is given the worst interpretation by the other. I felt that both parties were inclined to reflect those views in the way they gave evidence and because of the conflict I thought there was evidence in both cases of a reluctance to make reasonable concessions or to answer questions frankly. 

8. Turning to the counts that remain, these counts relate to alleged breaches of the relevant orders, which are orders made by the City A Juvenile and Domestic Court in the state of City A (the US orders) which were subsequently registered in Australia by this Court.

   Count 1

9. The first count alleges that there was a breach of order 9 of the US orders. Order 9 states that:

   Neither parent will consume more than three alcoholic drinks in any eight hour period while the child is with that parent.

   The mother’s allegation was that on returning from time with the father, X said:

   My dad drinks a six-pack of beer in an hour.

   The mother’s affidavit goes on to state that X explained that the father:

   Often drinks six to 10 alcoholic drinks in an afternoon.

   A couple of things can be noted about that. First of all, it is hearsay evidence. That does not, however, exclude it from being used in these proceedings pursuant to section 69ZT of the Family Law Act 1975 (Cth), although, given the evidence is hearsay, it cannot be tested in any satisfactory way. In a case such as this, where it is apparent that the child is keenly aware of the conflict between his parents and the parents are suspicious of one another, the clear possibility arises that even if X did say that it may have been influenced by his view of the parental conflict.

10. I might say that in July 2019, when this was alleged to have been said, X would have six years old. In my view, a comment from a very young child in those circumstances has an inherent degree of unreliability.  Further, I do note that the evidence about what the child said is unusually precise – that is, 6 to 10 alcoholic drinks in an hour.  It surprises me that a six year old child would make such a specific observation.  The very precise nature of the statement allegedly made by X engenders, in my view, a degree of suspicion.  I do not believe that I can safely conclude on the balance of probabilities that the statement, if it was in fact said, reflects the truth. Accordingly, count 1 is not made out. 

    Count 2

11. Count 2 relates to a breach of order 10 of the US orders. Order 10 states, amongst other things, that:

    The parties are not to say or do anything that reasonably would demean the other party in the eyes of the child or in any way diminish the respect the child has for any parent.  Neither party shall directly or by means of a third party belittle, berate, scorn, ridicule, or condemn the other in the presence of the child and each party will actively attempt to generate a feeling of goodwill between the other parent and the child.

    The mother alleged in count 2 that on 5 February 2019, during a video conference call, the father told X that the mother must have installed a tracking device on the child’s phone, or words to that effect. 

12. The evidence about that was somewhat confusing, however, it seems to have arisen out of a visit to the football in City E. X was spending time with his father and they left the football at three-quarter time because, presumably, their team had been beaten by that stage. The mother had also been watching the game on the television in Darwin and stopped watching it at the same time as X and the father left. Without going into the details, the father formed the suspicion that the child’s phone, or perhaps his phone, was being tracked in some way by the mother.  I think he agrees that he had that suspicion, however, he denies saying anything to X about that. Given his denials were made under oath I feel that I am unable to make an adverse finding about that incident. This is particularly the case given my general concerns about the reliability of the father and the mother’s evidence in this case.  While I am satisfied that the father has held some such suspicion, I am not satisfied that he raised it with X.  It is possible, of course, that he did raise it, in which case I would suspect that it was raised in passing. I put it no higher.

13. I am not satisfied that that would constitute an intentional non-compliance with the US orders – that is, intending to demean or belittle the mother to the child.  I acknowledge that if something like that did happen it would be most regrettable and would be a very poor reflection on the father. If he involved the child in his suspicions about the mother that would be a very poor reflection on the father, indeed.  However, I do not believe that I can satisfactorily find on the balance of probabilities that, first, he spoke in that way and secondly, that he intended to demean and belittle the mother by the use of those words.

    Count 3

14. Count 3 relates to a similar circumstance.  It is said that on 14 February 2020 the father demeaned and/or belittled the mother by asserting that the mother had stolen one of his paintings.  In evidence the mother said the father may not have used that word.  She said he may have simply said words to the effect that, “Mum has my painting”.  In cross-examination the father said that he raised with the child during a video call the issue of a painting that was visible to the father in the background of the video. He said to the child that he saw a painting that belonged to him.  I asked the father why he would conceivably raise that claim with a child in a context where it is clear that these parties have been in various forms of dispute for many years, including, it would appear, about their chattels.

15. I consider that the evidence given by the father – that he raised that issue to the child – reflects poorly on him. The father conceded it should not have been said and I agree with him.  Children are often extraordinarily sensitive to the conflicts between their parents.  The material that I have read while this matter has been in my docket for some years suggests that this child is an intelligent boy.  I have no doubt he is keenly aware of the conflict between his mother and father, which is a tragedy for him.  Any comment, however indirect, to the child that is critical or impliedly critical of the other parent is likely to be documented by the child and added to his memory of the experience he has had during the separation and subsequent conflict between his parents.

16. A child should never be burdened with that kind of information if it can possibly be avoided and I am satisfied it could have been avoided.  That being said, as Mr Treviño, senior counsel for the father, submitted, if I were to find the alleged contravention proved in that regard I would need to be satisfied that it constituted an intentional non-compliance with the orders.  In my view, while I have made very critical remarks about the father in respect of those matters and he himself concedes, as he must, that he acted unwisely, I am not satisfied that it constituted an intentional non-compliance with orders. Count 3 is not made out.

    Count 4

17. Count 4 relates to an allegation that on 25 July 2019 there was another discussion between the father and X where the father indicated that he would be travelling to Darwin in order for X to spend time with him in the near future. X told him that that would not be possible because he and his mother were travelling to the United States for, according to the father, “a court case”.  The mother and the father at that time were in the process of resolving proceedings in the United States. 

18. Having commenced proceedings in this Court, at an early stage of these proceedings I encouraged them to resolve the proceedings in the United States. I indicated that this Court would not tolerate parallel proceedings and if they were not resolved an injunction would likely issue. That indication was taken on board, and the father took steps to resolve the proceedings. However, it seems some aspects were unresolved, including costs. The mother said she needed to go to the United States to have that resolved.  Whether or not all of that is particularly relevant to the truth of the allegation and counter-allegations is not necessary for me to determine. 

19. In any event, the mother says that the father said to the child – “that’s a furphy” – in reference to the mother needing to go to the United States to resolve the proceedings.  According to the mother, X said, “what’s a murphy?” and the father replied “a furphy, that’s a lie”.

20. I am unable to find that the conversation took place in exactly that way, in other words, that the father made his view clear that what the mother had said to the child about that was, “…a lie”. However, I must say I have some reservations about the father’s evidence on that issue. Again, as with the Count 3, it strikes me as surprising that it was raised at all.  Very arguably, the father responding in any way constituted a breach of order 10 of the US orders which requires:

    The parents are not to discuss the issues of custody, child support, divorce, or the breakdown and ending of their marital relationship in the presence of the child.

21. A breach of that aspect of the orders is not alleged and I am not going to make a finding, in the circumstances, against something that is not a full allegation in the proceeding.  It seems to me that the father ought to have been very careful and I am not satisfied that he was particularly careful.  That being said, I am not satisfied that his lack of wisdom in alluding to proceedings constituted an intentional non-compliance with the order. Accordingly, the count is not made out.

    Conclusion

22. None of the four remaining counts of the contravention application filed by the mother were made out. Therefore I propose to make an order that the contravention application be dismissed.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       17 September 2021