Hale & Hale
[2011] FMCAfam 1107
•27 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HALE & HALE | [2011] FMCAfam 1107 |
| FAMILY LAW – Contravention of children’s orders – order for equal shared parental responsibility – father alleges mother has failed to provide information in respect of the children and has breached such order – other contraventions relating to failure of children to be delivered to spend holiday time with father – reasonable excuse – standard of proof. |
| Family Law Act 1975 (Cth), ss.4, 60CC, 65DAC, 65DAE, 70NAA, 70NAC, 70NAE, 70NAF, 70NBA, 70NCB Evidence Act 1995 (Cth), s.97 Ligertwood & Edmond Australian Evidence: A Principled Approach to the Common Law and the Uniform Acts 5th Edition 2010 |
| Hale & Hale (No.2) [2009] FMCAfam 873 Oxley & Inglis [2007] FamCA 1606 |
| Applicant: | MR HALE |
| Respondent: | MS HALE |
| File Number: | ADC 3419 of 2007 |
| Judgment of: | Brown FM |
| Hearing dates: | 31 May & 12 September 2011 |
| Date of Last Submission: | 12 September 2011 |
| Delivered at: | Adelaide |
| Delivered on: | 27 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Lewis |
| Solicitors for the Applicant: | Lessli Strong & Associates |
| Counsel for the Respondent: | Mr Kane |
| Solicitors for the Respondent: | Elringtons |
ORDERS
The contravention applications filed on 12 November 2010 and 20 May 2011 be dismissed.
In the event that the mother wishes to make an application for costs in respect of the dismissal of the contraventions applications herein she is directed to do so and file an affidavit in support setting out the quantum of the costs which she seeks together with any other relevant matters within twenty eight days of today’s date.
In the event either party wishes to make an application to change aspects of the final orders made on 21 August 2009 dealing specifically with mechanisms to ensure the subject children attend at [D] to spend time with the father as previously ordered and as to how information concerning the subject children’s education and health requirements may be efficiently disseminated between the parties they are directed to so within twenty eight days of the date of these orders together with an affidavit setting out all matters relevant to such application.
Paragraphs 8, 9, 10, 11, 12 and 13 of the orders made on 21 August 2009 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hale & Hale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 3419 of 2007
| MR HALE |
Applicant
And
| MS HALE |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these contravention proceedings are Mr Hale “the father” and Ms Hale “the mother”. They are the parents of three children, [X] born [in] 1996 and twins, [Y] and [Z] born [in] 1999.[1]
[1] The parties married in November of 1989. They have been separated since March of 2002 and are long divorced. In these circumstances the convention of referring to them as husband and wife in these reasons for judgment seems inappropriate.
On 21 August 2009, following a seven day hearing, I made final orders in respect of parenting arrangements for the three children. The father alleges that the mother has contravened those parenting orders on five occasions.
The father lives in [D], near Canberra on his [omitted] property. Prior to the parties’ separation in early 2002 the children and the mother also lived on this property. The mother and children now live in suburban Adelaide following a bitterly contested “relocation” case, adjudicated by Faulks J, in the Family Court in Canberra, in September of 2004.
Faulks J made orders authorising the children’s move to Adelaide. In addition, His Honour made orders which foresaw the children spending regular parts of each school holiday with their father, in [D].
In 2009, it was common ground that [X] was no longer seeing her father and was estranged from him. The causes of this estrangement were controversial between the parties. The mother contended that [X] had elected herself not to visit her father. On the other hand, the father contended that the mother had actively influenced [Z] to have a pejorative view of him.
However, the main focus of the 2009 proceedings was on the twins, [Y] and [Z]. It was the father’s position that the mother was in the process of alienating [Z] from him, as she had earlier done in respect of [X], and as such, once she (the mother) had succeeded with [Z], it was inevitable that she would turn to [Y], with the same results.
In these circumstances, it was Mr Hale’s position that the court needed to take urgent action to ensure that all three children, but particularly [Y] and [Z], had the benefit of having a meaningful level of relationship with him. Given what he categorised as the mother’s compromised attitude to the responsibilities of parenting and given what he believed was her axiomatic antipathy for him, Mr Hale argued that the only means by which this outcome could be achieved was if the children were ordered to live predominantly with him and spend time with their mother, during school holidays.
Ultimately, for reasons provided at some length,[2] I determined that it would not be in the children’s best interests to move to live with their father in [D]. I wrote as follows:
“… I do not think an outcome which saw the children, particularly [Y] and [Z], living with their father in [D] would be one in accordance with their wishes. The children are close to their mother, who is their major source of emotional succour and has been for the vast majority of their lives to date. As a result, I consider that the children would suffer a significant level of emotional discomfort and quite possibly resentment at living separately and apart from her.
In my view, the children are not of an age when they could easily be transplanted from one parent’s home environment to another. I acknowledge that all three of the children know the father’s household in [D] well. However, the day to day bedrock of their lives is in Adelaide, where they attend school; have friends; and engage in a variety of extra mural activities.
In my view, it would represent too high a price for the children to pay, in order that they have the most meaningful relationship possible with their father, that they are removed from an environment in which they are essentially happy and doing well, particularly if there exist other, as yet untested mechanisms, by which their paternal relationships may be maintained.”[3]
[2] See Hale & Hale (No2) [2009] FMCAfam 873
[3] Ibid at paragraphs 584, 585 and 592
The mother and father were not the only parties to the proceedings before me in 2009. Due to the complexity of the issues arising in the case, at an earlier stage, I had ordered that [X], [Z] and [Y] be independently represented. The independent children’s lawyer, Mrs Reed played an active role in the proceedings.
The “untested” mechanisms to which I alluded in the reference set out above, came as a result of Mrs Reed’s instigation. Those mechanisms included a recommendation that the mother and the children undergo a course of counselling. In addition, Mrs Reed proposed that her appointment remain in force for a period of one year, following the publication of the final orders in this matter, so that she could perform a function of oversight of the orders through which it was anticipated Mr Hale would both spend time with the children concerned and remain an active presence in their lives.
During the course of the proceedings, Mr Boehm of counsel, who had been instructed by Mrs Reed to appear on her behalf proposed that amongst other orders, the following orders be made:
“4. That the mother undertake counselling with an approved counselling agency such as Anglicare, Centrecare or Relationships Australia or with a registered Psychologist or Psychiatrist with an aim to address and fully understand the impact of her behaviour, her negative attitude and her negative influence upon the children and directed towards their father and his partner Mrs H and her attempts to undermine and sabotage the children continuing any meaningful and ongoing relationship with their father and for the mother to be provided with alternate strategies to better support and promote the children’s continuing relationship with their father and further for the mother to be provided with alternate strategies to assist and redirect the child [X] with respect to her negative attitude towards and her limited relationship with her father.
5. That the mother undertake such counselling forthwith and provide written notification to the father and the ICL as to the name of the person with whom she is undertaking counselling.
6. That the mother attend such appointments with the counsellor as may be recommended by the counsellor from time to time.
7. That the said children [Y] and [Z] undertake confidential and individual counselling to provide support for the children with respect to maintaining a long distance relationship with their father and to provide the children with strategies to deal with any difficulties they may experience in both parents’ households, the high level of conflict between their parent and specifically their mother and their sister [X]’s negative attitude and influence over them with respect to their father and their father’s household and with an aim to promote the children’s ongoing and meaningful relationship with their father.
8. That the costs of the individual and confidential counselling for the said children [Y] and [Z] be shared equally between the parties.
10. That the appointment of the Independent Children's Lawyer be discharged following the expiration of one year from the date of judgment in this matter.
11. That the ICL be at liberty to consult with the counsellor regarding progress with the mother’s counselling.
12. That the ICL provide to the mother’s counsellor a copy of the Court’s judgment in this matter and associated orders.”
The mother was not legally represented at the commencement of the 2009 hearing. She represented herself. Whilst so doing, she was trenchant in her criticisms of the father’s parenting capabilities and maintained that his deficit in this regard represented a significant threat to the well being of the children concerned.
As such, it was her position that she had been paying heed to the legitimate concerns of firstly [X] and then more recently [Z] in giving effect to their legitimate wish not to visit their father in [D] during school holiday periods.
However, during an adjournment of the proceedings, Ms Hale
re-engaged her longstanding solicitor and sought legal advice in respect of the proceedings. This resulted in her being represented by Mr Kane of counsel, who, on her instructions, significantly reframed his client’s position in the case. In the earlier judgment, I summarised the mother’s position in respect of the second portion of the trial as follows:
“The trial resumed on 28 May 2009. On this occasion, Ms Hale was represented by Mr Kane of counsel. He prefaced his involvement in the proceedings with the announcement that he had been instructed by his client not to raise any specific criticisms of the father’s household with either Mr Hale or Mrs H [the father’s current wife] and his client did not intend to take any further action in respect of any of the previous allegations she had raised in this regard.”[4]
[4] Ibid at paragraph 254
The mother’s professed intention, arising from this change of stance, was that she wished to demonstrate to both the court and Mr Hale that the first portion of the trial had had “a sobering effect on her and she [had] now, with the assistance of her lawyers, seen the error of her ways.”[5]
[5] Ibid at paragraph 35
As such, it was said that Ms Hale was capable of changing her attitude towards the father and more importantly would be capable of encouraging and supporting the children, particularly the twins, to spend time with their father during school holidays. Up to this stage, it had been the mother’s position that she was powerless to get the children to embark upon an aircraft leaving for Canberra, in the face of the children’s steadfast refusal to go.
As a consequence, of this change of attitude on her part, Mr Kane submitted that the mother would be willing to abide by the orders recommended by the independent children’s lawyer. At an earlier stage, Ms Hale had proposed that the children themselves undergo a process of therapeutic counselling with Ms R.
The father, throughout the course of the hearing maintained his position that the children should live with him and spend time with their mother during New South Wales school holidays. He had no formal proposals in respect of the allocation of parental responsibility for the children.
I expressed some scepticism regarding the mother’s self professed change of attitude. I wrote as follows:
“I am somewhat sceptical about the mother’s self professed “road to Damascus” realisation, which has the flavour of a tactical change of tack. However, I must remain focused on achieving what I consider will be the best outcome for all three children, rather than on punishing Ms Hale for her past omissions.”[6]
[6] Ibid at paragraph 469
At a later stage in the judgment, I indicated that there was little evidence to indicate that Ms Hale’s change of attitude was likely to be both genuine and long lasting. In this context, I wrote as follows:
“The mother is right to think that the court has closely considered changing [Y] and [Z]’s principal residence to their father’s household in [D], not withstanding the likely disruption such an outcome would constitute to the children. During the initial portion of the case, this seemed to be the only realistic option to ensure that [Y] and [Z], at least, had a meaningful relationship with their father given Ms Hale’s intransigence and the passive and active antipathy she demonstrated towards Mr Hale.
In my view, there are now other options available, which it is incumbent upon the court to explore to ensure that the children have an appropriate level of relationship with their father. These options have the endorsement of the independent children’s lawyer, Ms Reed and she advocates her continuing involvement with the family to oversee their implementation and hopefully success.
In addition, after his significant involvement with the family and being well aware of the difficulties arising for [Z] and particularly [Y], Dr B[7], whose evidence I accept, is not in favour of a change of living arrangements for the children. Given his significant involvement with the family and level of experience, I believe that I would be imprudent to disregard Dr B’s opinion.
Ms Hale is an intelligent person, who, in my assessment, remains capable of a change of attitude, notwithstanding her blinkered attitudes in the past. She has indicated a willingness to undergo counselling to assist her in shifting her attitude towards the children spending time with their father and to avoid them being contaminated by her powerful feelings. I acknowledge such counselling has being both recommended and ordered in the past, without success.
However, in my view, such an intervention is the most likely means of changing Ms Hale’s view. In addition, unlike in the past, Mrs Reed will remain engaged and will oversee any process of such counselling.
Given my view about Ms Hale’s personality, which is steely and determined, I have grave reservations that a change in residence for the children, at this stage, will lead to an escalation in the level of conflict between the parties and, as a consequence, a greater enmeshment of all three children in this conflict. In my view, the overwhelming probability is that such an outcome will mean that [X] will never reach any level of rapprochement with her father, certainly not before she becomes an adult.”[8]
[7] Dr B was the writer of a number of family assessment reports, which were before the court in the proceedings which concluded in August of 2009. In addition, Dr B gave extensive oral evidence at the trial.
[8] Ibid at paragraphs 595-600
Mr Hale was not in favour of the approach advocated by the independent children’s lawyer. He remained dubious about the mother’s self professed change of heart and sceptical about her capacity to support any of the children having a proper level of relationship with him. As I recall, he had no alternative proposals to the children living predominantly living with him and had no suggestions as to how he could remain active in the children’s lives if his position was not adopted by the court.
Ultimately, notwithstanding the highly conflicted circumstances of the parties and their long history of poor communication and mistrust, I determined, not without reservations, that the parties should have equal shared parental responsibility for the three children concerned. This decision was predicated on the basis that I accepted Mr Hale felt excluded from involvement with issues to do with the children’s care, particularly so far as their education and health was concerned. I wrote as follows:
“It is Mr Hale’s position that he feels excluded from being involved in significant issues to do with the children’s care, particularly so far as issues to do with health and education are concerned. The most concrete examples of this arise in respect of [Y]’s ongoing medical treatment and Mr Hale’s lack of knowledge regarding the children’s musical education and activities.
Before making any parenting order, I am required to presume that it is in the best interests of the child affected by such an order for his or her parents to have equal shared parental responsibility for that child. This is the legislatively mandated optimal outcome for any child.
It is my apprehension that none of the parties involved in this case have closely considered the application of the presumption in this case. Necessarily they have each concentrated on where and with whom [X], [Y] and [Z] should live and how they should spend time with the other parent concerned.
An order which provides for shared parental responsibility requires that the parties to it to consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned [Family Law Act section 65DAC].
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Given the parties conflicted history with one another, it would be naïve for me to believe that Mr Hale and Ms Hale could easily consult one another and reach a state of consensus about major issues to do with their children. Indeed, Mr Hale would say that his experience of Ms Hale to date is that he is not consulted whatsoever about issues to do with the children’s education and health.”[9]
[9] Ibid at paragraphs 569-574
This was the background to me making the following final orders on 21 August 2009:
“1. The parties have equal shared parental responsibility for the children [X] born [in] 1996, [Y] and [Z] both born [in] 1999 (hereinafter referred to as “the children”).
2. The parties are to consult with one another about major long term issues pertaining to the children and are required to make a genuine effort to come to a joint decision about such matters, which include but are not limited to educational and medical issues pertaining to the children; cultural and religious issues pertaining to the children; the changing of the children’s names; changing the school enrolments of any of the children; and the relocation of the residence of the children so as to impinge upon the existing parenting arrangements for the children.
3. The children live with the mother.
4. The father spend time with the children as follows:
(a) So far as [Z] and [Y] are concerned for the whole of the three shorter South Australian school holiday in each year term holidays and for one half of the long end of year South Australian school holiday being the first half in each even ending year and the second half in each odd ending year (unless the parents agree otherwise);
(b) So far as [Z] and [Y] are concerned at any reasonable time when the father visits Adelaide subject to him giving two weeks notice of his visit to the mother;
(c) So far as [X] is concerned at any of the times during which [Z] and [Y] are spending time with their father subject to her wishes and upon completion of New South Wales Police investigations regarding allegations raised by her in respect of conduct occurring in her father’s household; and
(d) At any other times and on any other conditions as agreed between the parties from time to time.”
…
8. That the mother undertake counselling with an approved counselling agency such as Anglicare, Centrecare or Relationships Australia or with a registered Psychologist or Psychiatrist with an aim to address and fully understand the impact of her behaviour, her negative attitude and her negative influence upon the children and directed towards their father and his partner Mrs H and her attempts to undermine and sabotage the children continuing any meaningful and ongoing relationship with their father and for the mother to be provided with alternate strategies to better support and promote the children’s continuing relationship with their father and further for the mother to be provided with alternate strategies to assist and redirect the child [X] with respect to her negative attitude towards and her limited relationship with her father.
9. That the mother undertake such counselling forthwith and provide written notification to the father and the ICL as to the name of the person with whom she is undertaking counselling.
10. That the mother attend such appointments with the counsellor as may be recommended by the counsellor from time to time.
11. That the said children [Y] and [Z] undertake confidential and individual counselling to provide support for the children with respect to maintaining a long distance relationship with their father and to provide the children with strategies to deal with any difficulties they may experience in both parents’ households, the high level of conflict between their parent and specifically their mother and their sister [X]’s negative attitude and influence over them with respect to their father and their father’s household and with an aim to promote the children’s ongoing and meaningful relationship with their father.
…
13. That each parent shall be at liberty to and encourage to keep in regular contact with any counsellor appointed to assist the children and to provide wherever possible information in relation to living arrangements for the said children without compromising the confidential and individual nature of the said counselling sessions.
…
15. That the ICL be at liberty to consult with the counsellor regarding progress with the mother’s counselling.
16. That the ICL provide to the mother’s counsellor a copy of the Court’s judgment in this matter and associated orders.”
Order 11 of the orders made on 21 August 2009 did not specify with whom [Y] and [Z] were to undertake counselling. This omission led to controversy between the parties, as they were unable to agree on a counsellor to undertake the role and how the counselling was to be paid for. This lead to the mater relisted before me on 14 December 2009, on which occasion I made the following order:
“11. The said children [Y] and [Z] undertake confidential and individual counselling with Ms R to provide support for the children with respect to maintaining a long distance relationship with their father and to provide the children with strategies to deal with any difficulties they may experience in both parents’ households, the high level of conflict between their parent and specifically their mother and their sister [X]’s negative attitude and influence over them with respect to their father and their father’s household and with an aim to promote the children’s ongoing and meaningful relationship with their father NOTING the cost of the counselling is to be at the joint expense of the parties.”
It is these orders, which the father alleges the mother has contravened, without reasonable excuse, in contravention of the applicable provisions of the Family Law Act 1975.
It is common ground between the parties that between mid-2009 and the mid-year school holiday of 2010, [Z] and [Y] attended in [D] to spend school holidays with their father. It is also common ground that the children did not board a commercial airline leaving Adelaide for Canberra on 25 September 2010 to spend time with their father.
It is Mr Hale’s position that it can come as no surprise that this visit is the one which immediately followed the discharge of Mrs Reed’s appointment as the independent children’s lawyer and so the end of her role of oversight in respect of the orders of 21 August 2009. Accordingly he contends that the mother has returned to her old ways of working towards alienating the twins from him.
It was the children’s failure to attend at [D] in September of 2010 which, ostensibly at least, led to Mr Hale instituting the current contravention proceedings on 12 November 2010. He lodged a further contravention application on 20 May 2011.
For a variety of reasons, it has taken some time for these contravention proceedings to be finalised. In the meantime, there have been three distinct school holiday periods which have fallen since the instigation of the father’s contravention proceedings. Again, it is common ground that [Z] and [Y] have attended in [D] for each of these school holiday periods as required by the orders of 21 August 2009.
Again, it is Mr Hale’s submission that the only logical explanation for the mother’s compliance with the applicable “contact” order is the fact that the contravention proceedings have been a “Sword of Damocles” hanging over her head.
The contravention applications
By way of his contravention application filed 12 November 2010, the father lays the following four counts of contravention against the mother. Each count includes the date of the alleged contravention and the specific paragraph of the orders of 21 August 2009 alleged to have been contravened. Each count is as follows:
a) 8 January 2010 – orders 1 & 2
The mother had the child [X] fitted with dental braces without informing or consulting the father.
b) 25 September 2010 – order 4(a)
The mother did not enable (and accordingly prevented) the children [Z] and [Y] from spending time with the father from 25 September 2010 to 2 October 2010.
c) No time specified – orders 11 and 13 as amended 14 December 2009
The mother failed to arrange for the children to attend individual counselling within an appropriate time frame. The mother failed to inform the father of the children’s appointment with the counsellor. The mother engaged the children in counselling at [U] without the father’s consent or consultation with the independent children’s lawyer. The mother continued the children’s counselling at [U] after the court ordered that the children undertake counselling with Ms R.
d) No time specified – orders 8, 9, 10, 15 & 16
The mother has failed to undertake personal counselling, has failed to provide written notification to the father and the independent children’s lawyer as to the name of the person with whom she is undertaking counselling and has failed to attend such appointments with the counsellor as may be recommended by the counsellor from time to time. Further, by failing to attend counselling and provide the details of her counsellor to the independent children’s lawyer the mother has prevented the independent children’s lawyer from complying with orders relating to the provision of information to and communication with the counsellor.”
It should be noted that the independent children’s lawyer has not been involved in the current contravention proceedings. As such, Mrs Reed has not sought to agitate any of the alleged contraventions which potentially impinge upon any of the mother’s obligations which concern her.
After the commencement of the contravention proceedings filed on 12 November 2010, Mr Hale has filed a further contravention application on 20 May 2011. The details of this contravention are as follows:
“e) April 2011 – orders 1 & 2
On 4 April 2011 the father sent an email to the mother requesting information regarding the current health and education of the child [X]. The mother has failed to provide any such information to the father to date.”
Ms Hale has formally denied that she has intentionally breached the orders in the manner alleged by Mr Hale. In the alternative, it is her position that she has attempted to comply with the applicable orders in terms which are objectively reasonable. She seeks the dismissal of the father’s applications.
Mr Hale, as is required by the applicable rules of court, has filed an affidavit setting out the evidence which he claims supports his allegation of contravention by Ms Hale. In addition, he was cross examined by Mr Kane, counsel for Ms Hale, as to the matters arising from his affidavit and generally.
Ms Hale has filed an affidavit in rebuttal of the matters alleged against her by Mr Hale. In addition, she relies on the testimony of Ms M, a person who was present at the Adelaide Airport on 25 September 2010, when the twins allegedly refused to board the aircraft which was scheduled to take them to Adelaide.
Each of the charges set out above were formally put to Ms Hale and she denied them. After the court had heard the evidence of Mr Hale, Mr Kane did not seek to argue that his client had no case to answer in respect of the various charges concerned. Accordingly the case turned to its second phase and evidence was taken from Ms Hale and Ms M as to whether Ms Hale was able to provide a reasonable excuse as to her failure to comply with the applicable orders.
As is sometimes the case in contravention applications, there is some factual overlap as to whether the circumstances prevailing indicate that there the contravention is not made out or whether a reasonable excuse exists in respect of some omission.
The legal framework applicable
Division 13A is the part of the Family Law Act 1975 which deals with the consequences of a failure to comply with orders, and other obligations, that affect children. Pursuant to section 70NAA(1), the division empowers the court to make orders “to enforce compliance with orders [made] under this act affecting children.” This power includes the authority to vary any order earlier made. These powers are contained in Subdivision B of Division 13A.
The expression “order under this Act affecting children” is defined in section 4. It includes a parenting order. There is no controversy, in this case, that the orders of 21 August 2009 and the amending order of 14 December 2009 are parenting orders.
Pursuant to section 70NAC, a person is taken to have contravened such an order “if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise—he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.”
The expression “reasonable excuse for contravening” an order affecting children is defined in section 70NAE but are not limited to the circumstances delineated in that section. They include the following:
·The person bound by the order in question did not understand the obligations imposed and the court is satisfied that he or she ought to be excused in respect of the contravention [section 70NAE(2)];
·A person contravening an order with whom a child is to spend time with another parent believed on reasonable grounds that not allowing the child in question to spend time with the other person was necessary to protect the health or safety of some other person concerned, including the child affected by the order; and
·The period during which the contravention occurred was not longer than was necessary to so protect the health or safety of such person [section 70NAE(5)].
The prerequisite standard of proof to be applied in determining matters arising under Division 13A, other than matters involving incidents which are characterised as being more serious contraventions is proof on the balance of probabilities [section 70NAF].
Accordingly, the onus is on Mr Hale to establish on the balance of probabilities that Ms Hale has breached the parenting orders in question. If he is successful in discharging this onus, the onus then shifts to Ms Hale to establish on the balance of probabilities that she has a reasonable excuse for not complying with the applicable orders.
In Jets & Maker[10] O’Ryan J said as follows in respect of the standard of proof:
[10] Jets & Maker [2010] FamCAFC 55 at [83]-[85]
“The onus of proof rests on the applicant to prove that the respondent contravened an order affecting children. The standard of proof is on the balance of probabilities having regard to the gravity of the allegation. The breach must be shown to be intentional but it does not require proof of contumacious behaviour.
…
The respondent must prove that he or she had a reasonable excuse for the contravention. Again, the onus is on the respondent and the standard of proof is on the balance of probabilities. The Act provides a definition of what amounts to reasonable excuse, however, the definition is not exhaustive.”
The expression “reasonable excuse” is not defined within the Family Law Act 1975 other than in section 70NAE. It is important to note that the definition provided in the section is not confined to the specific incidents which exculpate a contravention of children’s order set out in subsections (2), (4), (5), (6) and (7) of the section.
The words “reasonable excuse” must therefore be given their ordinary English meaning. By use of the word “reasonable”, the legislation requires that the explanation given by a person, for contravening an order affecting children, must be reasonable when judged by reference to an objective standard. In Kelly & Kobelnek[11] Hannon J expressed the test as follows:
“In my opinion the respondent, in order to exculpate herself from the contravention must establish that she has or had a reasonable excuse according to an objective test namely, whether a reasonable person in the position of the mother would consider on reasonable grounds that she had a reasonable excuse for the contravention.”
[11] Kelly & Kobelnek [1998] FamCA 296 at page 3-4
In Taikato & R[12] the High Court discussed a criminal statute, which contained the phrase “reasonable excuse”. The statute concerned rendered it an offence for a person to possess, in a public place, any instrument capable of discharging an irritating substance. It was a defence, under the statute, if the person concerned had a “reasonable excuse” for possessing the item in question.
[12] Taikato & R (1996) 186 CLR 454
The appellant in the case was charged and convicted of possessing an aerosol canister of formaldehyde. It was her defence that her possession of the canister was excused because she carried it for self defence. In this context the majority of the High Court[13] considered the expression “reasonable excuse”. They said as follows:
“The term "reasonable excuse" has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of "reasonable excuse" is an exception.”[14]
[13] Brennan CJ, Toohey, McHugh and Gummow JJ
[14] Ibid at page 464 (footnotes excluded)
The High Court pointed out the desirability of the criminal law being uniform in its application to circumstances which are not materially different. In this context, defences founded upon a reasonable excuse pose some difficulty because they may depend upon a court making a value judgment rather than applying a uniform rule. This difficulty arises in the present case given the non-exhaustive definition of “reasonable excuse” in section 70NAE(1).
In this context, the High Court said as follows:
“… the reality is that when legislatures enact defences such as "reasonable excuse" they effectively give, and intend to give, to the courts the power to determine the content of such defences. Defences in this form are categories of indeterminate reference that have no content until a court makes its decision. They effectively require the courts to prescribe the relevant rule of conduct after the fact of its occurrence.”[15]
[15] Ibid at page 466
Contravention proceedings have been described as quasi criminal in nature.[16] They are not an inquiry into the best interests of any child or children affected by the order alleged to have been contravened. Before contravention proceedings are started, the court has previously determined the outcome which will best enable a particular child or children to be parented.
[16] See Davis & Davis (1976) FLC 90-050 at 75,207 per Asche J
In addition, serious consequences may follow for a person if a contravention is found to have occurred, without reasonable excuse or otherwise. Such a person may be required to enter into a bond. Given these circumstances, the procedural requirements pertaining to a contravention proceeding should be strictly complied with.[17]
[17] See Sahari & Sahari (1976) FLC 90-086
The procedural requirements attaching to contravention applications are set out in rule 25B.04 of the Federal Magistrates Court Rules. At the hearing of any such application, the court must:
(a)inform the respondent of the allegation; and
(b)ask the respondent whether the respondent wishes to admit or deny the allegation; and
(c)hear any evidence supporting the allegation; and
(d)ask the respondent to state the response to the allegation; and
(e)hear any evidence for the respondent; and
(f)determine the proceeding.
In Jets & Maker, which concerned an appeal from a decision of a Federal Magistrate arising from contravention proceedings, O’Ryan J reiterated the need for strict compliance with these requirements and revisited earlier authorities of the Full Court which stipulated that contravention proceedings were analogous to a summary criminal trial.[18]
[18] See Jets & Maker (supra) at [89]
In particular, O’Ryan J made reference to Attreed & Attreed[19] in which it was said as follows:
“Contempt proceedings must be conducted in a formal manner as in the case of a person charged summarily with an offence and with due observance to all the procedures and safeguards applicable to such charges. The concept of the Family Court as a “helping court” is admirable but it cannot in any way impinge on the court’s duty to require that the applicant make a specific charge of non-compliance upon which the case must stand or fall ...”
[19] See Attreed & Attreed (1980) FLC 90-907 at 75,732
One such safeguard is, if there is any ambiguity arising from the order or orders, which give rise to the contravention application in question, such ambiguity should be resolved in favour of the person facing the contravention. It being fundamental that he or she can only be found responsible for an act or omission if he or she knows precisely what is required of him or her pursuant to the applicable order.
The eschewal by the Full Court of its role as a “helping court” does not sit comfortably with more recent authority, particularly what was said by the Full Court in Stevenson v Hughes.[20] In that case, Fogarty J indicated that it might be necessary to reappraise the “strict criminal approach” for contravention proceedings, given changing community attitudes, some of which were reflected in changes to the applicable legislation.
[20] Stevenson v Hughes (1993) FLC 92,393
Stevenson v Hughes was a “contact” case, in which it was alleged that a parent had been passively resistant to a child spending time with the other parent concerned. In the case, Fogarty J endorsed the following comments which had been made at the initial hearing of the contravention application in question.
“It is not a sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go’ and thereafter to figuratively fold their arms as if that were an end of the matter.
Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.''
In this context, Fogarty J alluded to the situation prevailing in many parenting cases, which have been on foot for lengthy periods of time and which involve significant levels of conflict. His Honour said that it was important that custodial parents “appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance.”[21]
[21] Ibid at 79,815 – 816
These comments are apposite, in the present case, because counsel for the father, Ms Lewis prefaced her closing submissions by saying that her client had come to this court “for help”. In particular, Ms Lewis drew my attention to comments made by me, in the reasons for judgment, which lead to the orders of 21 August 2009. I said as follows:
“A more logical solution to the problem is that Ms Hale should direct the children to get on the plane and brook no opposition from them. Although Ms Hale may believe my attitude is harsh, I expect her to be able to win any battle of wills with a ten year old child. That she should direct the children to spend time with their father is an integral part of her responsibilities as a parent.”[22]
[22] See Hale & Hale (No2) [2009] FMCAfam 873 at paragraph 535
No doubt Mr Hale also took notice of other comments, which I had made, critical of the mother for not involving him in the process of decision making concerning the children’s education and health. In this context, he again seeks the help of the court to obtain information about the children, from whose lives he feels excluded.
The current Division 13A was inserted into the Family Law Act 1975 as part of the package of reforms contained in the Family Law Amendment Bill (Shared Parental Responsibility) Act 2006. The explanatory memorandum to the Bill indicated that the Act was being amended:
To strengthen the existing enforcement regime in the Act. Breaches of court orders are a major source of conflict and distress to all parties involved. The amendments provide the courts with a greater range of options to better enforce parenting orders. This is necessary to ensure that one of the main objects of Part VII of the Act is fulfilled and that children are able to have a meaningful relationship with both parents. In addition, the amendments repeal the existing Division 13A of Part VII of the Act and replace that Division with clearer and more accessible provisions that will make the whole Division easier to understand.
The greater range of options, available to the court in respect of contravention applications, are fourfold:
· Contravention alleged but not established – Stage 1
Ø Vary the order concerned [section 70NBA(1)(b)(i)];
Ø Award costs against the unsuccessful applicant concerned [section 70NCB];
Ø This latter power is presumably to deter unmeritorious would be enforcers. However, the court is specifically conferred with the power to vary a children’s order (subject to best interest considerations) in recognition of its role as a “helping” court.
·Contravention established but reasonable excuse made out – Stage 2
Ø The court again may vary the order concerned;
Ø Make an order for compensatory time;
Ø Award costs against the applicant concerned.
·Contravention established without reasonable excuse – less serious contraventions – Stage 3
In these circumstances, the court may:
Ø Order the defaulting parent to attend a post-separation parenting program;
Ø Make a compensatory parenting order compensating a parent for time lost with any child concerned;
Ø Adjourn the proceedings to allow either party to apply to the court to vary the orders contravened;
Ø Order the defaulting parent to enter a bond;
Ø Make an order for costs against the defaulting parent;
Ø Make an order compensating the contravened parent for any expenses incurred as a result of the contravention in question – e.g. lost fares etc;
Ø An order for costs.
·Contravention without reasonable excuse – more serious contraventions.[23] – Stage 4
·In these circumstances the court may:
Ø Impose a community service order or bond;
Ø Make an order for compensatory time;
Ø Make an order for compensation;
Ø Award costs;
Ø Fine or imprison the contravening parent;
Ø It should be noted however that when the court is considering either a fine or imprisonment, the burden of proof required shifts to beyond reasonable doubt.
[23] Contravention applications are deemed to be more serious if the party concerned has previously been found to have contravened a parenting order.
It should be noted that pursuant to section 70NBA the court is empowered, when dealing with any contravention proceedings, to vary the existing parenting order concerned. This power exists even if the contravention is unproven or it is proven but reasonable excuse is found to exist.
The concept of “equal shared parental responsibility” is one which is also created by the shared parenting amendments. The rationale of these amendments was said to be in recognition of the need for separated parents to have a “cooperative approach to parenting”. The relevant amendments were said to be intended to:
“Promote the object of ensuring that children have a right to have a meaningful relationship with both their parents and that parents continue to share responsibility for their children after they separate.”[24]
[24] See Explanatory Memorandum at Schedule 1
In both the earlier reasons for judgment and these current reasons, I have set out the provisions of the Family Law Act 1975 dealing with equal shared parental responsibility. The relevant sections are section 65DAC; section 65DAE and the definition of major long term issue in section 4. The applicable explanatory memorandum says as follows about these provisions:
“These sections provide that, where parents are exercising shared parental responsibility in accordance with the terms of a parenting order that involves making a decision about a major long-term issue in relation to a child, both parents are required to discuss any proposed decision with each other and reach agreement about the decision. However, where a child is spending time with a person pursuant to the terms of a parenting order, that person is not required to consult on decisions about issues that arise during that time that are not major long- term issues. Of course, parents may choose to consult on these issues. The clarification of what issues are major long-term issues is intended to reduce disputes about what falls into this category and to make it clear that day to day decisions can be made by the parent who has care of the child, thus reducing litigation about those issues.”[25]
[25] Ibid at paragraph 27
So far as the terms “child’s education” and “child’s health” are concerned, the explanatory memorandum indicates that the former is intended to capture issues “such as which school a child attends” and the latter was intended “not [to] capture a child’s short term illnesses, such as a cold, but may capture issues such as immunisation, which may affect the child’s long term health or when the child has ongoing medical needs.”[26]
[26] Ibid at paragraph 24
In regards to issues pertaining to [X]’s education, there is evidence of the parties consulting in respect of the issue, as delineated in the Explanatory Memorandum with the consultation concerned being initiated by Ms Hale. On 12 October 2010, she emailed Mr Hale and indicated that [X] was considering going to another school in the next year “in order to achieve her academic goal”.[27]
[27] See exhibit 1
A few weeks later, Ms Hale again emailed Mr Hale to indicate that [X] had been accepted into a private school from the commencement of the academic year in 2011. Ms Hale directed to the school’s internet site and invited him to contact the college concerned. She asked if he had any objections to [X] attending the school in question.[28]
[28] See exhibit 2
The Full Court has indicated that it is possible for a parent to be found to have breached an order which provides for joint parental responsibility for issues pertaining to the long term care, welfare and development of a child.[29] However the Full Court did not provide definitive guidance in respect of the issue.
[29] See Vlug v Poulos (1997) FLC 92-778 at 85,596 - 597
It found that a joint long term responsibility order could be contravened in circumstances where a person in whose favour such an order had been made was “hindered or prevented from carrying out his or her joint responsibility under the order” by any other person, including the other parent upon whom parental responsibility had been conferred.
Section 65DAC requires two parents who share parental responsibility to make decisions pertaining to major long term issues in relation to their child or children jointly. Any such order is taken to require the parents concerned to consult with one another and make a genuine effort to come to a joint decision about the issue concerned.
The Explanatory Memorandum says this about the provision:
“New section 65DAC provides a rule that where parental responsibility is to be shared in relation to a major long-term issue under a parenting order, this means that decisions should be made jointly. This clarifies for parents or others who may have parental responsibility, what exercising shared parental responsibility actually involves. This will ensure that both parents have a meaningful involvement in the child's life. This does not only apply in situations where parents are sharing exactly equal responsibility. In all cases where there is some sharing of responsibility then consultation, then discussion about major long-term issues is required for those parts of responsibility that are shared.
…
New subsection 65DAC(3) specifies that in the context of making decisions jointly, consultation between those persons and making a genuine effort to come to a decision is required. This will allow a party to seek to enforce a parenting order in circumstances where there has been no genuine attempt to consult.”[30]
[30] Ibid at paragraphs 196 and 198
The intention of 65DAE, which stipulates that parents sharing parental responsibility are not obliged to consult in respect of issues that are not major long-term ones, is to make it clear that, while a child is with a parent, that parent takes responsibility for the management and care of the child concerned. It being hoped that this provision will reduce “litigation about minor details”.
Controversy may potentially arise between parents as to whether consultations between them are genuine and whether the issue at the heart of any dispute is indeed a major long-term one. However, the rationale of the provisions is to give meaning to the sharing of decisions about long-term issues and encourage a cooperative approach to parenting.[31]
[31] Ibid at paragraph 200
Given Mr Hale’s obvious interest and concern about the lives and personal development of [X], [Z] and [Y] and the fact that he has hitherto discharged his financial responsibility towards the children [section 60CC(3)(i) & section 60CC(4)], it does not seem unreasonable that there be an order for shared parental responsibility in this case. In these circumstances, it would appear contrary to the rationale of the shared parenting legislation that one parent should be excluded from major decision making in respect of children whom he both loved and maintained.
However, the reality of the parties’ situation is that their relationship with one another, as parents, is fraught with all manner of difficulties, which stem from the difficult circumstances of their separation, which in turn precipitated the mother’s application to relocate the children to Adelaide.
For all these reasons, the case is a difficult and complex one. The legislative provisions, designed to facilitate cooperative parenting, are complex. There is some tension between the applicable jurisprudential considerations which pertain to the hearing of contravention applications.
The case encapsulates some of the tensions arising from cases such as Attreed and Jets & Maker on the one hand and Stevenson & Hughes on the other. Ms Hale is entitled to be dealt with in a manner which is procedurally fair, given the possibility that an outcome of the proceedings, adverse to her, may lead to her being criticised and possibly sanctioned. As such, the court should not act upon uncertain charges or imprecise proofs. The benefit of any doubt or uncertainty in respect of any of the charges or allegations arising should be accorded to her.
On the other hand, the contravention application has not arisen in a vacuum. It comes following a long history between the parties of parental dysfunction and unhappiness. There is an obvious lack of tolerance between them and impaired levels of communication.
Against such a background, one parent makes a plea for help to the court and urges it to do what it can to get the other parent to abide by both the spirit of the orders in question and the ethos of the applicable legislation, which promotes an ideal of cooperative parenting. The steel in the plea for help arises from the fact that it comes in the form of a contravention application.
That is not the end of the complexity. As with many contravention applications, some of the actions of the respondent, alleged to constitute contravention, seem of little moment and not to be harmful to the best interests of the children concerned – lack of consultation about [X]’s braces; the unanswered email of 4 April 2011; and the question of the mother’s counselling, given the fact that the father did not advocate in the first place and thought it would be useless – by way of example.
Such situations may lead to the conclusion that there is some pettiness in the complaints made and “a perception from the evidence that the interests of the court in obedience to its orders is being invoked in support of a power struggle between the parents [which leads to] the frustrating prospect of lending the support of the law to a poor motive …”[32]
[32] See Oxley & Inglis [2007] FamCA 1606 per Warnick J at [2]
However, as Warnick J pointed out such a matrix can throw up diverse consequences. One being that:
“… insufficient understanding is given to the dilemma for a party with the benefit of an order which has been breached, especially repeatedly, and even if only in a way that does not harm the child’s interests. If the court has made an order, whether by consent or not, one rightly assumes it had purpose and gravity. “Small” but repeated breaches can constitute a real detriment to the beneficiary of an order. Yet a contravention application can seem pernickety.”[33]
[33] Ibid at [3]
The defence of reasonable excuse, which Ms Hale invokes, requires the court to prescribe “the relevant rule of conduct after the fact of its occurrence”. Necessarily, this will lead the court to having to examine individually the circumstances of each alleged contravention. This process does not lend itself to a holistic examination of the conduct of each of the parties over the very many years of their unhappy and largely dysfunctional relationship.
As previously indicated, these proceedings have taken some time to reach finalisation. Initially I had hoped that, if arrangements for the twins to go on holiday to [D] were put back on track Mr Hale might reconsider the utility of the contravention application. Between the initial hearing of the matter and the date allocated for final hearing, two school holidays fell, during each of which the twins attended in [D].
In addition, regrettably the time initially allocated for the hearing of the contravention application proved to be inadequate. In these circumstances, the matter proceeded part-heard. Again, during the period of the adjournment, the twins went to [D] for the mid-year school holiday. Notwithstanding these circumstances, Mr Hale has continued with the contravention application, as he is entitled to do.
Relations between Mr Hale and [X] broke down in 2007. After the hearing of 2009, notwithstanding some earlier difficulties, the twins regularly visited their father. As I remarked in the earlier reasons, it may be simplistic to approach a case involving a child of comparatively mature years, who ostensibly refuses to go on “contact” as being one concerned with a bad or alienating parent and a good and innocent parent, given that a third person, namely the child concerned, might also have motivations and reasons of his/her own in respect of the issue.
In this context, regardless of the ultimate outcome of the contravention proceedings, I am concerned that their prolongation must inevitably have implications for the nature of the relationship Mr Hale has with all three children. These consequences have the potential to reverberate for all concerned with possibly deleterious consequences.
My function is to deal with the specific incidents of contravention which have been alleged by Mr Hale and what are said to be the exonerating circumstances surrounding those propounded by Ms Hale. It is not my role to allocate fault or blame for the current disastrous relationship between the parties or to determine what factors have been at play with the children.
The evidence and findings
I have no reason to discount my earlier assessment of the credibility of the parties. Mr Hale sees matters in black and white terms. He views Ms Hale as manipulative and disingenuous. He believes that he must be ever vigilant to prevent Ms Hale acting to alienate the twins from him.
As such he is not likely to give her the benefit of any doubt which may potentially arise from the uncertainty surrounding any situation, particularly if the uncertainty comes about as a result of deficits relating to the parties’ communication skills. Mr Hale will always think the worst of Ms Hale.
Ms Hale has a very close relationship with the children concerned. She is not likely to closely question any thing they say to her. She is fiercely protective of them. As a result of the lengthy litigation between her and the father, she has little time or sympathy for the feelings of
Mr Hale. Like Mr Hale of her, she sees herself as the victim of his conduct.
Both parties have their own agendas in the case. As such, each is likely to have a very subjective view of the evidence arising and neither can be regarded as completely dispassionate about it. However I consider them to be each generally reliable, in the sense that each recounted what he or she genuinely believed to have occurred in respect of these various incidents.
Given the parties’ mutual mistrust of one another and their impaired faculty to communicate effectively, necessarily each will view the same set of events through a distorting prism of hostility and blame the other for any difficulties or misunderstandings which arise between them.
In what follows, I will make findings of fact about each of the contravention allegations to the perquisite level of proof, which is proof on the balance of probabilities. I will apply the same standard to any issue of excuse raised by Ms Hale.
The hearing proceeded after each of the contraventions had been put to Ms Hale. She denied each of them but also raised the defence of reasonable excuse. Mr Hale then provided evidence in support of his allegations and was cross examined by counsel for Ms Hale.
After this process, I determined that Ms Hale had a case to answer. She then provided her own oral evidence and was cross examined by counsel for Mr Hale, as was Ms M.
a) Count one – [X]’s braces
Although Mr Hale pays child support for the three children concerned, its quantum is controversial so far as Ms Hale is concerned. The rate of child support is currently $370.00 per month but it has been as low as $81.10 per month. This issue has some relevance to the matter of [X]’s braces.
[X] has been estranged from her father for some time. In Mr Hale’s words the only time she is likely to want to speak to him is “when she wants something”. Mr Hale also concedes that he is not good with computers and does not know how to send an email.
Mr Hale concedes that, at some time in September 2009, he had a short telephone conversation with [X], during which she told him that she needed to have braces applied to her teeth. He also acknowledges that, after this short conversation, Ms Hale came onto the line, at his request, to discuss the issue further.
He cannot now remember verbatim the exact conversation which took place. He recounts its affect as follows:
“[X] said she needs braces?” Ms Hale replied with words to the effect “I’ll send you an email about it.”.
Ms Hale deposes that on 22 September 2009, [X] was examined by the school dentist who diagnosed the need for braces. She confirms that [X] initiated a phone call to her father about the issue. It is Ms Hale’s evidence, that after [X] had spoken with her father about the issue, she in turn spoke with him to the following effect:
“[Mr Hale], [X] visited the school dentist and he said that she needs braces.” [Mr Hale] replied with words to the following effect: “Yes, whatever is best.”
Ms Hale deposes that she took this conversation to signal Mr Hale’s agreement to the fitting of the braces, which she did not regard as a significant issue. It being uncontroversial that [X] needed the dental treatment in question and the procedure itself was, from her perspective not unduly complicated or likely to be injurious to [X] herself.
At this juncture, I am unable to resolve definitively what the exact content of the telephone conversation between the parties was. It is now approaching two years ago. Neither kept notes of it. However, what is clear, from the conversation in question, is that Mr Hale was aware, from an early stage that [X] required braces and he did not specifically veto their application.
In addition, it is also clear from the date on which he filed his contravention application, that he was not immediately aggrieved about the issue. In addition, to my mind, there exists some lack of precision as to whether or not the braces issue is one which can be easily categorised as being a major long term issue pertaining to [X]’s health.
I have not been provided with any extensive details about the orthodontic procedure in question. It is however, a common phenomenon that teenage children are routinely fitted with braces, both for therapeutic and cosmetic reasons. It is not usually envisaged that the application of the braces will be permanent.
Ms Hale’s evidence is that arrangements were made for [X] to visit the orthodontist shortly after this conversation and she was fitted with the braces in question. It is common ground between the parties that
Mr Hale did not himself contact Ms Hale in the weeks following the conversation about [X]’s braces. He became aware that [X] had been fitted with the braces when the children visited him for the December school holidays in 2009.
This caused him to send an email to Ms Hale, on 13 December 2009, in the following terms:
“I would also like an email about what’s happening with [X]’s teeth as you had told me that you were going to do about a month ago.”
Ms Hale replied to the email the following day as follows:
“With regards to [X]’s teeth, I refer to the numerous telephone conversations since September 2009 with myself and [X], nothing has changed as to what [X] has informed you during the twice weekly conversations that you and Mrs H have with her. [X] explained to you in September on the very day that she was informed by the school dentist that because of overcrowding, she would need to have teeth removed and braces would be the way to go.
She has had the braces fitted on Tuesday 8 January (sic) which was the very day that you spoke with her about the event. I apologise as I thought that the telephone conversations were sufficient, but I am happy also to send you an email if it is not enough to be advised verbally on the telephone.”
Thereafter in the email, Ms Hale details the cost of the orthodontic treatment in question ($5,665). She requests that Mr Hale contribute one half of this sum. It is common ground between the parties that
Mr Hale has not as yet made any such contribution.
In my view, the evidence is unequivocal that Mr Hale knew about the braces issue for [X]. He received information about the issue from both [X] and Ms Hale, via the telephone, before the braces were fitted. He did not specifically forbid that the braces be applied.
The essence of his complaint is that he did not receive a more detailed written communication, about the issue, from Ms Hale. This aspect of the conversation between the parties is in dispute and I do not feel able to resolve it, on the basis of credit alone. This is particularly so because, at the time, neither party seems to have attached much moment to it because it was not the subject of any further correspondence between them.
The order which Mr Hale claims has been contravened requires the parties to “consult with one another about major long term issues”. The verb “consult” is defined as follows:
“1.Seek information or advice from (a person, book, watch, etc);
2.Refer to a person for advice, an opinion etc;
3.Seek permission or approval from (a person) for a proposed action; and
4.Take into account, consider (feelings, interests, etc).”[34]
[34] See the Australian Oxford Dictionary.
No doubt Mr Hale would assert that the third definition is the applicable one to the current circumstances. On the other hand,
Ms Hale would assert that she had raised the issue directly with
Mr Hale and in the absence of his specific veto, she had taken into account his interests in respect of the braces issue.
The relevant explanatory memorandum set out above[35] speaks of parents discussing any long term issue in relation to their child, as a prelude to making a consensual decision about the issue in question. However, the legislature makes it clear that there is no obligation to discuss issues which are not major long term ones as it is appropriate that the parent who has day-to-day responsibility for the care of any child in question should have authority to make any necessary decisions incidental to such care.
[35] See paragraph 67 hereof.
In my view, communication between parents must take the form of a dialogue. It is a mutual activity. In this case, Mr Hale does not complain about the fitting of the braces to [X] per se, what he complains about is that he was not told more about it. The mother’s position is that there was nothing more to tell.
When Mr Hale did formally ask for more information about [X]’s teeth, he was provided with written advice about the matter. He does not cavil about the contents of that advice. In all of these circumstances, I do not think that it can be said that Ms Hale has consciously attempted to deceive Mr Hale about the issue or conceal information about it from him.
The difficulty in this case arises from the fact that the parties do not communicate well and necessarily do not communicate effectively with one another. In my view, both share responsibility for this unfortunate state of affairs.
Whether the applicable legislation requires a parent to obtain the formal permission of the other parent concerned, with whom he or she shares parental responsibility, before any particular action is taken, must depend on the circumstances prevailing and the moment of the decision in question.
To Ms Hale, the issue of [X]’s braces was routine. The procedure involved was largely unexceptional for a child in [X]’s circumstances. Mr Hale did not take any active steps to disabuse her that he took a different view. By way of example, upon learning of the braces issue, he did not take steps to advise Ms Hale formally that he objected to the procedure in question, which I would not characterise as being inherently unusual. Children of [X]’s age are routinely fitted with braces.
In addition, it is to my mind noteworthy that Mr Hale has chosen to agitate the matter a significant period after it occurred. This suggests to me that the matter is more relevant to the parties’ complex post separation politics than to the efficacy or appropriateness of the dental treatment in question for [X].
For all of those reasons, I have come to the conclusion that Mr Hale has not established that Ms Hale has contravened the order in question as alleged in count 1. This contravention is dismissed. Accordingly, the provisions of Subdivision C of Division 13A are engaged in respect of this contravention.
b) Count two – the failure of [Y] and [Z] to attend in [D] in the September/October holiday of 2010
This is potentially the most serious of the five contraventions alleged by Mr Hale. In his supporting affidavit, Mr Hale places the count in the context of what he asserts is a concerted course of conduct, on
Ms Hale’s part, to undermine his relationship with the children. He deposes as follows:
“I say that Ms Hale is both actively or passively undermining and sabotaging the ongoing relationship between all three children and me. I say that her interferences with the children being able to maintain an ongoing relationship with me is in breach of order 4(a).”[36]
[36] See Mr Hale’s affidavit filed 12 November 2010 at para 22.
I accept that this is Mr Hale’s belief. However, I can only deal with the specific incident of the September 2010 holidays in these proceedings. In my view, it would be fundamentally unfair to Ms Hale to utilise her behaviour prior to the order of 21 August 2009 as the basis on which to extrapolate her culpability for the applicable contravention.
The general rule is that evidence of a person’s tendency to act in a particular way is inadmissible. Ligertwood & Edmond express the rule as follows:
“Generally evidence of what a party does on other occasions will not be sufficiently relevant to admit in proof of the occasion giving rise to civil action. It is evidence of what happened on the occasion in question that courts seek in determining claims. Courts are not interested in pursuing the mere propensities of people towards certain conduct. Such enquiry is time-consuming and likely to produce evidence of uncertain probative value in most cases. It is much better to focus on seeking evidence relating more directly to the occasion in question.”[37]
[37] See Ligertwood & Edmond Australian Evidence: A Principled Approach to the Common Law and the Uniform Acts 5th Edition 2010 at page 249.
Section 97 of the Evidence Act 1995 (Cth) deals with tendency or propensity evidence. Such evidence will only become admissible if it is both relevant and has “significant probative value [s.97(2)].”
Prior to the orders of August 2009, Mr Hale deposes that Ms Hale had a propensity or tendency to act in a way which discouraged the children from attending on contact visits with him. This propensity lead to [X] ultimately ceasing to visit her father. Essentially, it is his case that the evidence indicates that there is a pattern in Ms Hale’s behaviour prior to the alleged contravention of 25 September 2010 and this is a relevant factor in the court’s determination of her responsibility or otherwise for the children failing to attend in [D] in September 2010.
Mr Hale extends his argument by pointing to the fact that it was only after the discharge of the Independent Children’s Lawyer’s appointment that the twins failed to board a Canberra bound aircraft. It being his position that this is further evidence of a character tendency on Ms Hale’s part namely, when scrutiny of her action is suspended, she will revert to type and resume her obstructive ways in respect of contact arrangements.
The expression probative value is defined in the dictionary attached to the Evidence Act 1995. It means:
“Probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”
I accept that prior to the orders of August 2009, there is evidence to indicate there was noncompliance with court orders requiring the children to attend in [D] with their father. These incidents did not result in formal contravention proceedings in which the circumstances prevailing, including whether there was or was not some reasonably excuse for the nonattendance, were subject to rigorous scrutiny.
In addition, in my view, the new regime inaugurated by the orders of 2009, following my extensive reasons for judgment, constitute a change of circumstances, as does the fact that there is no complaint in respect of Ms Hale’s conduct between August 2009 and September of 2010. In these circumstances, I do not think that Ms Hale’s conduct prior to August 2009 can be said to have “significant” probative value, which is the test for s.97.
In my view, it would be unfair and probatively flawed to approach
Ms Hale’s conduct on 25 September 2010 on the basis that she is some type of “serial offender”. In addition, given the circumstances surrounding what happened on 25 September 2010, I am not persuaded that this evidence is relevant.
On 12 September 2010, Mr Hale deposes that he received a telephone call from [Y] and [Z]. During this call, [Z] informed him that she would not be coming to [D] for the forth coming school holidays but [Y] would be. Mr Hale further deposes that when he questioned [Z] about this matter, she was not forthcoming with an explanation other than it was “for personal reasons”.
This information caused Mr Hale to instruct his solicitors to send a stern letter to Ms Hale in the following terms:
“We note that the ICL appointment coincidently ceased a few weeks ago. We advise that if you do not comply with the Orders and ensure that [Z] travels to see her father these holidays we are instructed to file a Contravention Application. We are further instructed to seek a change of residence order and the costs of any application.”[38]
[38] See Annexure C to the father’s Affidavit filed 12 November 2010.
Ms Hale deposes that, as the September school holiday approached, first [Z] and then [Y] indicated to her they did not wish to go to [D]. It is Ms Hale’s evidence that this apparent expression coincided with the twins beginning menstruation.
I do not disbelieve Ms Hale’s evidence that [Y] and [Z] had begun to menstruate. It is her further evidence that she told the children to tell their father about the issue and this was the source of some sensitivity, so far as they were concerned. Again, in the circumstances, this does not seem to me to be improbable.
Ms Hale’s evidence is that she told both children that they were required to go to Canberra in September. It is her further evidence that she told [Z] to pack sanitary pads to take with her. The children continued to attend school during this period. It is also Ms Hale’s evidence that she believed that she had talked the children through the issue successfully and they would attend as required.
With the benefit of hindsight, Ms Hale can perhaps be criticised for not taking a more proactive role with Mr Hale directly in respect of the matter. She herself did not speak with Mr Hale directly about the matter. Accordingly, the two parents could not jointly devise strategies to assist the children with the issue of their periods and how the travel arrangements could be accomplished without a hitch.
However, Mr Hale did not present a particularly conciliatory front in respect of the issue. His response was to issue a sternly worded letter, which necessarily was based on the assumption that Ms Hale was in some way at fault. In these circumstances, I can understand why
Ms Hale did not directly engage with Mr Hale, particularly given the longstanding mistrust between the parties.
One of the previous bones of contention between the parties regards the nature of [Z] and [Y]’s relationship with Mr Hale’s current wife,
Mrs H. Mr Hale concedes that, in telephone conversations with him, [Y] had made reference to some previous disagreements she had had with Mrs H, as a reason why she did not want to go to [D] for the September school holiday.
Ms Hale confirms that she overhead [Y] complaining to her father that she did not like the way in which Mrs H had previously treated her.
I am not in a position to analyse the validity or otherwise of [Y]’s complaints about Mrs H. However, in my view, it would be simplistic for me to excise a consideration of the children’s behaviour and attitude in respect of going to [D] from my consideration of this particular count on the contravention application.
[Z] and [Y] were 11 years of age in September 2009. Although, as I have previously indicated, I would expect two polite, well parented children of this age to obey a parental direction, the fact remains that children of 11 do have wishes and are capable of a stubborn insistence on them.
In this sense, I am concerned that it may be simplistic for me to regard [Y] and [Z] as instruments or surrogates to be manipulated by the mother. Clearly both children have a will of their own.
Against this background, Ms Hale decided that she would enlist a third party to assist in the delivery of [Z] and [Y] to the airport to catch the plane to [D]. This was Ms M, who provided an affidavit for the proceedings.
I found Ms M to be a credible witness. She was subjected to rigorous cross examination by counsel for the father. She found this cross examination unsettling, particularly given that she perceived herself to be an honest broker, who was attempting to assist Ms Hale and who bore no particular animus for Mr Hale.
The arrangement Ms Hale had with Ms M was that [Y] and [Z] would spend the evening prior to their scheduled travel to [D] at Ms M’s home and she would take the children to the airport the next day. Ms M lives close to Adelaide Airport. Ms Hale became friends with her because Ms M’s son attended the same school as [Y] and [Z].
Ms Hale advised the father’s solicitor of this arrangement in general terms. It seems to be the position that both parties anticipated that there might be some difficulty in respect of the children boarding the necessary aircraft. On 24 September, Mr Hale’s solicitor wrote to
Ms Hale by email, in the following terms:
“We are instructed that both [Z] and [Y] advise that they are not coming over for the holidays. Please advise as a matter of urgency whether the children will be coming over for the holidays or not.
If you confirm that the girls are not coming our client will cancel the flights. If you do not confirm and they do not come our client will seek reimbursement for the flights from you.”
Ms Hale replied to this email on 24 September. She wrote as follows:
“I am confirming that [Y] and [Z] will be at Adelaide airport tomorrow at the designated time as has occurred during the past six years.
I will make arrangements for the children to be taken by a third party.
I have paid for the return airfares for the children as per court orders. Does your client have any other suggestions?”[39]
[39] See Annexure D to the father’s affidavit filed 12 November 2010.
I do not find that this latter email was intended to be disingenuous on Ms Hale’s part. I accept that it was her intention that the children should board the aeroplane in question. Why otherwise would she have booked and paid for their return airfares. I also accept that her request for suggestions, presumably from Mr Hale or those advising him, was a genuine one.
As such, Ms Hale was desirous of the children’s travel to [D] passing off without incident. I accept that she had no wish to precipitate a further crisis with Mr Hale, who had made it clear that he would view any failure of the children to attend for the holiday very seriously indeed.
In the earlier proceedings, consideration was given as to whether it would be helpful for a neutral person to facilitate the children passing between their parents. This was described as an “emotional airlock”. This appears to have been the mother’s motivation for engaging Ms M to take the children to the airport.
As matters transpired, it was not a successful strategy on 25 September 2010. By a necessary inference, the father is critical of the mother for adopting this strategy because it was tantamount to her abrogating her responsibility to ensure compliance with the applicable order.
In order to delegate her responsibilities to Ms M, it was necessary for Ms Hale to advise the airline concerned that Ms M would be the escorting person for [Y] and [Z], prior to them boarding their flight. She completed a letter to this effect on 25 September 2010.[40] The flight was scheduled to depart at 3.40pm.
[40] See Exhibit 3.
Ms M deposes that the children’s morning with her passed uneventfully. Neither [Y] nor [Z] confided in her any reservations about going to Canberra that afternoon. Ms Hale had dropped the children off at her home the previous evening and they had parted from their mother without any unusual display of emotion.
Ms M drove [Z] and [Y] to the airport, in the company of her own daughter, early on the afternoon of the following day. During this journey, [Y] announced that she would not be going to [D]. A theme which was taken up by [Z]. Ms M describes the children’s presentation at this stage as being “matter of fact”.
In response to the children’s indication that they would not go, Ms M indicated that she said words to the effect of, “unfortunately, I have to take you to the airport.” Ms M apparently continued to drive onto the airport, although one of the children again indicated that she would not be boarding the aircraft in question.
At the airport, Ms M assisted the children to check in and to deposit their luggage. She then proceeded with [Y] and [Z] to the departure lounge area. Her evidence is that once the children’s flight was called, [Y] began to scream. She describes [Z] as also being stressed.
The children’s behaviour came to the attention of the flight attendant who was overseeing the boarding of the plane. Ms M describes both children as upset and crying and indicating that they were “not going to go”.
In response to this behaviour, the flight attendant concerned determined that the children would not be permitted to board the aeroplane. She said words to Ms M to the effect:
“I can’t take the girls on the plane in the state that they are in. It is a safety issue.”
Ms M apparently did not take the matter any further. The airline made arrangements for the children’s luggage to be removed from the aircraft and Ms M collected it from a special counter. She rang Ms Hale and advised her what had happened. Arrangements were made for Ms Hale to collect the children from Ms M’s home.
I accept that an official of the airline concerned determined that [Y] and [Z] would not be permitted to board the aircraft on which they had been booked to travel. I accept that this decision was made because of the children’s hysterical behaviour. Ms Hale was not present at the time and was accordingly not able to either counsel the children concerned or direct them to behave in a more appropriate way.
Ms Hale can perhaps be criticised for deputising Ms M to perform a role which was more appropriately performed by Ms Hale herself. However, I do not believe that I am in a position to find on the balance of probabilities that Ms Hale was intent in orchestrating the imbroglio which occurred at the departure lounge.
Ms M was placed in a difficult position. Perhaps she was naïve to undertake the task asked of her by Ms Hale. It seems likely that she was not fully informed by Ms Hale of the potential level of difficulty. However, having heard her evidence, I am satisfied that there was nothing else she personally could have done to persuade either the flight attendant to accept the children or [Y] and [Z] to board the aircraft.
At the end of the day, the reason the children did not board the aircraft was because the airline would not allow them to do so. I accept that the children were poorly behaved. They acted like petulant brats. However, there is no evidence to indicate that Ms Hale herself directly solicited this behavioural response in the children.
In my view, there is no cogent evidence to indicate that Ms Hale had enlisted the children with her in a conspiracy to frustrate the September school holiday contact in question. The most significant reason which led to the failure of the arrangement of 25 September 2010 was the unacceptable behaviour of [Z] and [Y].
Perhaps Ms Hale can be criticised for being an unduly permissive parent. It might also be said, particularly by Mr Hale, that she does not exert sufficient parental responsibility in respect of all three children concerned. However, the fact remains that Ms Hale was not at the airport on the day in question but her efforts did result in the children undertaking the necessary preliminary steps to board the aircraft in question.
The evidentiary problem in this case arises because of the logical difficulty in connecting the children’s poor and capricious behaviour, at the airport, to Ms Hale, who was not there and so was unable to directly mediate to mollify it. [Y] and [Z] were 11 years of age at the time. As such, they have some measure of free will in how they choose to behave. In my view, it is simplistic to regard them as being cat’s paws of their mother.
It is not beyond the bounds of possibility that neither [Y] nor [Z] wanted to go to [D] for the holiday in question and were determined not to do so. However, I am not in a position to elucidate the children’s motivation for their behaviour on 25 September in the current proceedings.
It is a theme of Mr Hale’s case that [Y] and [Z] had their mother’s either explicit or implicit imprimatur to act in the way that they did on the afternoon in question. In my view, there is no cogent evidence to support this conclusion. There may have been many factors at play with [Y] and [Z], which caused them to behave in the way in which they did. In my view, it would be imprudent for me to find that the mother was the sole or major factor in this regard, particularly as she was not actually at the airport at the time.
It is common ground between the parties that no attempt was made to place the children on a later flight to Canberra. It seems clear that the father did not propose such an outcome. In fact, there were no discussions whatsoever between the parties about [Y] and [Z] potentially going to [D] for a shorter period of time.
The mother’s position is that she was unclear about what she should do next. She deposes that she emailed Ms R, the children’s counsellor, about the issue. She also contacted her solicitor in Canberra. Mr Hale himself did not proffer any suggestions nor did he attempt to speak with either [Y] or [Z] about the issue.
By necessary implication, Mr Hale is critical of Ms Hale for not being more proactive about this situation. However, it seems to me that he did not himself make any constructive suggestions in regards to resolving the issue in the short term.
In all of these circumstances, I do not think that it can be said that Ms Hale has intentionally failed to comply with the order that the father spend time with the children in the September/October school holidays or that she has made no reasonable attempt to comply with the order.
Ms Hale’s evidence is that she was concerned that the children might not want to get on the aircraft. Mr Hale confirms that [Z] had told him she did not want to come for “personal reasons” and he had an inkling that this might be due to the commencement of her period.
Ms Hale’s evidence, which I accept, is that she thought the involvement of Ms M in delivering the children to the airport might act as a circuit breaker to the children’s objections. This does not seem to me to be an implausible suggestion, although obviously it was unsuccessful.
In addition, in these circumstances, I do not believe that it can be said that Ms Hale has made no reasonable attempt to comply with the order concerned. The issue of why the children behaved in the way they did remained unresolved. Mr Hale had no proposals in respect of the issue.
Ms Hale herself sought professional assistance but to no avail.For those reasons, I find that this count is not made out and accordingly it should be dismissed. Again, the provisions of Subdivision C of Division 13A are engaged in respect of this contravention.
c) Count 3 – the children’s counselling
The original order of 21 August 2009 dealing with [Y] and [Z] undertaking confidential counselling to provide support in respect of maintaining a long distance relationship with their father and otherwise to deal with the high conflict between their parents did not impose any specific obligation on any of the parties concerned, including the Independent Children’s Lawyer. The order was drafted in the form proposed by counsel for the Independent Children’s Lawyer. It is generic in its import.
I anticipated, given that the Independent Children’s Lawyer’s appointment had not been terminated, that discussions would ensue between the parties concerned and the appropriate arrangements would be made without further involvement from the court. I was sadly mistaken in this regard.
Given the lack of specificity in order 11, on application by the Independent Children’s Lawyer, the matter was relisted before me on 14 December 2009. In correspondence from Mrs Reed, I was told as follows:
“The parties including the Independent Children’s Lawyer’s have been unable to fix arrangements by agreement for the children’s counselling.”
The father is critical of the mother for arranging for the children to attend counselling at [U] following the orders of 22 August 2009. The mother’s position in respect of this counselling was that the service provided was within her budget and she thought it appropriate. Her solicitor informed Mr Hale of this counselling and it became apparent that Mr Hale objected to it.
However, the fact remains that there was no specific order preventing Ms Hale taking the children to counselling at [U]. It also seems to be the position that when the mother became aware of Mr Hale’s objection, she desisted from the counselling in question. This was the background to the matter coming back before the court in December of 2009.
On 14 December 2009, I made the following orders:
“1.Order 11 of the orders made 21 August 2009 be varied as follows:
“11.The said children [Y] and [Z] undertake confidential and individual counselling with Ms R to provide support for the children with respect to maintaining a long distance relationship with their father and to provide the children with strategies to deal with any difficulties they may experience in both parents’ households, the high level of conflict between their parent and specifically their mother and their sister [X]’s negative attitude and influence over them with respect to their father and their father’s household and with an aim to promote the children’s ongoing and meaningful relationship with their father NOTING the cost of the counselling is to be at the joint expense of the parties.”
2.A copy of the judgment delivered on 21 August 2009 be provided to Ms R.”
The effect of this order was to resolve the controversy surrounding the person who should provide counselling to [Z] and [Y]. The Court gave its imprimatur to Mr Hale’s desire that the counselling be provided by a therapist in private practice rather than by a counsellor at a non-government agency. From the mother’s perspective, this had financial implications, as she was ordered to pay half of the costs involved.
However, once again, the order did not impose a specific obligation on Ms Hale to personally contact Ms R or do anything specific in respect of the counselling so ordered. Certainly, the order did not impose a timeframe for either the commencement or completion of the counselling concerned.
Ms Hale’s evidence is that she contacted Ms R, by telephone, on 14 December 2009, the day on which the order was made. It is her evidence that Ms R expressed a reluctance to speak with her in the absence of any specific direction from the Independent Children’s Lawyer.
Mrs Reed wrote to Ms R on 18 December 2009. She provided information to Ms R regarding the circumstances surrounding the order of 14 December 2009, which mandated Ms R to undertake the counselling ordered for the children.
Mrs Reed also wrote to each of the parties’ solicitors on 18 December 2009, enclosing a copy of her letter to Ms R and requesting that both parties contact Ms R presumably so that the matter could be advanced.
On 8 January 2010, Ms R wrote to Mrs Reed confirming that she had been contacted by Ms Hale in mid December. Ms R further confirmed that she had been unwilling to provide an appointment to Ms Hale for the children until she had been directed to do so by the Independent Children’s Lawyer. Accordingly, I do not think that it can be said that Ms Hale has either consciously disregarded the order of 14 December 2009 or attempted to subvert its application, notwithstanding it did not impose any specific obligation on her.
On 11 January 2010, Ms Hale’s solicitor contacted Mrs Reed advising that his client was on holiday and it was anticipated that she would make arrangements to meet with Ms R upon her return to Adelaide. I have been provided with a file note from Ms Hale’s solicitor which indicates that he discussed the issue of Ms R with Ms Hale on 25 February 2010. Mr Turini’s note is “will ring now!!”[41]
[41] See Exhibit 5.
There is no dispute that an appointment for [Y] and [Z] to attend upon Ms R was made for 18 March 2010 and the children did indeed attend this appointment.
Between the end of December and the end of February, there was a flurry of correspondence between the Independent Children’s Lawyer and the solicitors for the father and mother. I am unable to infer from this correspondence that Ms Hale herself was being intentionally obtuse or difficult about the children’s counselling with Ms R. The fact that she contacted Ms R on the day on which the order was actually made indicates otherwise.
The appointment may not have been made as quickly as either the father or his solicitor would have wished. However, the necessary appointment was made and, in the absence of any specific time frame for its making, the fact that it was made about three months after the initiating order does not seem to me objectively unreasonable.
In all of these circumstances, I do not find that Ms Hale has either intentionally failed to comply with order 11 of the orders varied on 14 December 2009 or has made no reasonable attempt to comply with it. In these circumstances, this count must be dismissed. Again, the provisions of Subdivision C of Division 13A are engaged in respect of this contravention.
d) Count 4 – personal counselling for Ms Hale
Pursuant to order 8 of the orders of 21 August 2009, the mother was directed to undertake personal counselling with the objective of her addressing and fully understanding:
“The impact of her behaviour, her negative attitude and her negative influence upon the children and directed towards their father and his partner Mrs H and her attempts to undermine and sabotage the children continuing any meaningful and ongoing relationship with their father and for the mother to be provided with alternate strategies to better support and promote the children’s continuing relationship with their father and further for the mother to be provided with alternate strategies to assist and redirect the child [X] with respect to her negative attitude towards and her limited relationship with her father.”
In making the order, I adopted the drafting proposed by the Independent Children’s Lawyer. The father did not support the order concerned. It being his position that the strategy proposed was not likely to change the mother’s behaviour and her attitude towards him.
I acknowledge that the order is somewhat panglossian in tone. However, I made the order concerned and necessarily must be taken to have accepted that it had some utility. It arose in the circumstances of the final hearing before me, which commenced in May of 2009 and during the course of which Ms Hale announced that she had fundamentally changed her attitude towards the father and his partner and thus was prepared to withdraw her previous trenchant criticisms of them unconditionally.
At the time I expressed some reservations about this apparent Road to Damascus conversion, which seemed to me potentially more tacitly related than genuine. In such circumstances, I did not demure from the Independent Children’s Lawyer’s proposal that it would be helpful for Ms Hale to receive some professional support to assist her in maintaining her apparent change of attitude towards Mr Hale.
The clear intent of the order was however not to provide therapy to
Ms Hale but ensure that whatever could be done was done to ensure that [Y] and [Z] in particular, and if possible [X], would visit their father regularly, during school holidays, in [D]. Apart from the exception occurring in the September/October school holidays of 2010, this objective has been achieved to date.
The order did not specify a particular individual to provide this counselling. Rather the mother was directed to undertake what was described as approved counselling provided by a non-government agency such as Anglicare, Centrecare or Relationships Australia or with a registered psychologist or psychiatrist.
The mother was directed to undertake such counselling forthwith and provide written notification to the father and the Independent Children’s Lawyer as to the identity of the person providing the counselling in question. Although Mr Hale did not support the various orders in question, he now seeks to action the mother for breaching the orders in question. His complaint seems to be that the mother did not undertake the counselling ordered with sufficient expedition and did not provide him with details of the counselling as required.
Forthwith is a common English word. It means immediately or without delay. Ms Hale has not indicated that she did not understand the order in question.
The history of the parties before me indicates that the father is not usually slow to instruct his solicitor to raise formally with Ms Hale any specific concerns which he may have in respect of the applicable orders regulating the parties parenting relationship with one another. In the aftermath of the orders of August 2009, I have not been provided with any evidence which indicates that Mr Hale’s solicitor raised this issue with either Ms Hale directly or her solicitor.
Mrs Reed, the instigator of the order in question, did raise the issue with Ms Hale’s solicitor on 18 December 2009. She reiterated her concerns to Mr Turini (the mother’s solicitor) again on 11 January 2010. At this time, Mr Turini advised Mrs Reed that his client was on holidays and was absent from Adelaide.
Ultimately, Ms Hale and Mr Turini conferred on 25 February 2010. Mr Turini’s file note in respect of the conference was tendered into evidence with the consent of Mr Hale’s counsel.[42] The file note indicates that Ms Hale had been seeing a psychologist, Ms S, of [omitted] Psychological Services as a result of a referral from her general medical practitioner. The file note indicates that Ms Hale had seen Ms S on 21 January and 4 February 2010 and Ms S had requested to see the various family reports of Dr B, who was the expert in the earlier proceedings.
[42] See Exhibit 5.
Ms Hale’s evidence is that she approached “a few places” in respect of the counselling ordered for her. She was however concerned about how she would pay for the counselling concerned. She was advised that the best way to go about this issue was to obtain a referral from her general medical practitioner for a mental health treatment plan, which would enable a psychologist to bulk bill her consultations to Medicare.
Ms Hale has provided evidence, in the form of a tax invoice, that she attended her general medical practitioner, Dr M on 6 November 2009 for such a mental health plan to be prepared. It is her evidence that the earliest appointment she could obtain with Ms S was on 21 January 2010. Mr Turini prepared a letter to both Mrs Reed and the father’s solicitor advising of these arrangements, following his conference with Ms Hale on 25 February 2010. The letter concerned is dated 23 March 2010. It seems that the letter was not sent. This omission was not due to any action on the part of Ms Hale herself.
It is my finding that Ms Hale did not contumaciously ignore the order requiring her to undertake personally counselling. Of her own initiative, she contacted Dr M and then made arrangements to see Ms S. Her evidence is that Ms S asked to see Dr B’s reports.
In these circumstances, I accept that Ms Hale informed Ms S of the reasons why she had been directed by the court to consult a psychologist. The main theme in Dr B’s reports concerned the issue of why the three children concerned were apparently resistant to seeing their father and the influence of Ms Hale in this dynamic.
Ms Hale assumed that Mr Turini would inform all concerned about her engagement with Ms S. Her assumption was misplaced but I am satisfied that this was not specifically due to any omission on
Ms Hale’s behalf.
I am also satisfied that Ms Hale began the process of engaging a counsellor prior to any prompting initiated by Mrs Reed. This is to her credit. The sole issue remaining is whether Ms Hale undertook this task with sufficient expedition.
It would seem to me that Ms Hale could have acted more quickly. As she herself said in evidence, “forthwith means straight away”. So it does. However, in all of the circumstances of this case, I am satisfied that Ms Hale was not consciously “dragging the chain”. In my view, she did what was required of her, of her own initiative, in a reasonable timeframe.
In all of the circumstances of this case, it appears to me to be somewhat opportunistic for the father to seek to sanction the mother for not pursuing a course of action with sufficient rigour, when he himself could see no utility in the enterprise concerned. As such, I am concerned that his decision to prosecute the breach is not well motivated. In my estimation, at worst, the breach involved is a technical one. In these circumstances, in the exercise of my discretion, I propose to dismiss the count concerned.
e) Count 5 – failure to respond to the email of 4 April 2011
On 4 April 2011, after Mr Hale had commenced these contravention proceedings, he sent an email which contained the following sentence:
“Can you please email to let me know how [X]’s teeth and schooling is going as [X] won’t tell me herself as per the orders I have to be told how things are going with the girls.”[43]
[43] See Annexure A to Mr Hale’s Affidavit filed 20 May 2011.
Mr Hale complains that he did not receive a reply to this email. It is his position that this omission represents a contravention of orders 1 and 2 of the orders of 21 August 2009, which conferred equal shared parental responsibility on the parties for the three children concerned and which required them to consult with one another about major long term issues pertaining to them.
In my view, the email concerned is a request for information. It does not specifically relate to any mature long-term issue pertaining to [X], about which the parties were required to confer.
The orders of 21 August 2009 do not impose a specific obligation on Ms Hale to respond to any such request for information. As previously indicated, pursuant to s.65DAE, parents sharing parental responsibility are not obliged to consult in respect of issues that are not major long-term ones. The intention of the provision being to reduce “litigation about minor details”.
It might be viewed as impolite of Ms Hale for not replying to the email in question. As I indicated during the hearing, it seems unlikely that Mr Hale would have been placated by a one word response such as “ok” or “good”.
In any event, from Ms Hale’s point of view, there was no relevant information to convey to Mr Hale. [X]’s braces had been fitted and she had informed Mr Hale in the previous October of issues to do with [X] attending [T] School and had referred him to the school’s website.
It is further Ms Hale’s evidence that Mr Hale had previously corresponded directly with [X]’s school and arrangements had been made for him to receive reports on her academic progress, principally in the form of her school reports, directly from the school in question.
Ms Hale has provided an email to Mr Hale dated 24 May 2011. This email contains information about [X]’s progress at school, which
Ms Hale indicates she had gathered whilst on canteen duty at [X]’s school. [X] is described as being a pleasure to teach.
It is unclear to me whether this email post dates Ms Hale’s receipt of Mr Hale’s most receipt contravention application, which was filed on 20 May 2011. This was not an issue which was canvassed during the hearing before me. However, the tone of Ms Hale’s email of 24 May 2011 is cordial and helpful.
In all of these circumstances, I have come to the conclusion that count 5 is not made out and accordingly it should be dismissed. Mr Hale has not demonstrated that Ms Hale has contravened orders 1 and 2 of the orders of 21 August 2009.
Conclusions
This is a perplexing case. Notwithstanding the fact that the parties have been separated for many years, the tension and mistrust between them remain endemic and their lines of communication twisted and tangled. It is simplistic to regard one party as being the victim of the other’s conduct.
In these circumstances, a contravention application provides a blunt instrument for apportioning fault between the parties, particularly in the context of children who are reported to be oppositional to spending time with a parent. As such there are potential perils arising for any person who elects to engage the process of contravention, notwithstanding the emphases in the Family Law Act and the desirability of the court being a helping one.
I have decided that none of the various counts of contravention have been made out. This should not be seen as a vindication of one party and a condemnation of the other. Both must bear responsibility for the atrocious parenting relationship which exists between them and which must have consequences for the three children concerned.
I am conscious that my decision in this case may have many unforeseen consequences. However it remains my view that it is important for the twins and also [X] notwithstanding her current attitudes, to maintain a level of relationship with their father, who undoubtedly loves each of them. It is not open to Ms Hale to view Mr Hale as an enemy.
It also remains my view that Mr Hale is entitled to feel that he is an active presence in each of the children’s lives, notwithstanding he lives many miles away from them and can only see them infrequently. I am also conscious of the inordinate expense the various protracted proceedings have represented for both of the parties. No doubt each is financially and emotionally exhausted by them.
Although the contravention applications have been dismissed, it remains open to the court to reconfigure the current orders in an attempt to make them function more efficiently. Perhaps naively, at the instigation of the Independent Children’s Lawyer, I made orders directed towards a therapeutic mode of ameliorating the various difficulties surrounding contact arrangements.
I have the discretion pursuant to section 70NBA (3) to vary the primary orders made on 21 August 2009. In my view the orders for Ms Hale to attend counselling in the hope that this would effect a change of attitude on her part have outlived their usefulness and are likely to create more areas for conflict between the parties rather than the contrary. I intent therefore to discharge this aspect of the primary orders.
I have also reached the same conclusion in respect of the orders made for the children to attend counselling. It is now over two years since the primary orders were made. The twins have attended in [D] for all but one of the holiday periods which have fallen in the period since. I do not consider that this has occurred as a consequence of the orders made for counselling.
I will direct that each party submit a minute of any proposed changes to the existing orders within twenty eight days of today’s date. These changes are not to be directed towards the substantive effect of the orders but rather towards mechanisms designed to make them function more effectively. For example each party may have proposals as to how significant information pertaining to the children’s education and health can be exchanged efficiently between them. There may also be proposals to ensure that the twins board the aircraft in order to spend time with their father as is envisaged in the earlier orders.
There are also prospective costs applications to be considered. If the mother seeks any order for costs, as a consequence of these reasons for judgement and the orders made herein, she is directed to file such an application, together with an affidavit in support setting out the quantum of any costs sought by her and any other relevant matters within twenty eight days of today’s date.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding two hundred and thirty-six (236) paragraphs are a true copy of the reasons for judgment of Brown FM
Date: 27 October 2011
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