Harrington and Yardley
[2017] FCCA 617
•29 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARRINGTON & YARDLEY | [2017] FCCA 617 |
| Catchwords: FAMILY LAW – Contravention of parenting order – nature of contravention hearing – reasonable excuse – high conflict family – distress of child aged 2 years and three months at handover – was removal of child reasonably justified – matters to be considered. |
| Legislation: Family Law Act 1975, ss.13A; 70NAA(l); 70NAC; 70NAE; 70NAF; 70NBA; 70NCB Federal Circuit Court Rules, r.25B.04 |
| Cases cited: Jets & Maker [2010] FamCAFC 55 Kelly & Kobelnek [1998] FamCA 296 Taikato & R (1996) 186 CLR 454 G v G (1981) FLC91-042 Davis & Davis (1976) FLC 90-050 Sahari & Sahari (1976) FLC 90-086 Attreed & Attreed (1980) FLC 90-907 Stevenson v Hughes (1993) FLC 92,393 Jones v Dunkel (1959) 101 CLR 295 |
| Applicant: | MR HARRINGTON |
| Respondent: | MS YARDLEY |
| File Number: | ADC 1941 of 2015 |
| Judgment of: | Judge Brown |
| Hearing date: | 16 March 2017 |
| Date of Last Submission: | 16 March 2017 |
| Delivered at: | Adelaide |
| Delivered on: | 29 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Roberts |
| Solicitors for the Applicant: | Andrew Hill & Co |
| Counsel for the Respondent: | Ms Milen |
| Solicitors for the Respondent: | Jo-Anne N Milen & Associates |
| Counsel for the Independent Children's Lawyer: | No appearance |
| Solicitors for the Independent Children's Lawyer: | No appearance |
ORDERS
Counts one and count three of the contravention application filed 20 October 2016 are established but reasonable excuse is made out in each case.
Count two of the contravention application filed 20 October 2016 is dismissed.
Each party file and serve a brief affidavit, of no more than five double spaced pages on or before 24 April 2017, setting out their respective proposals regarding how the orders of 13 September 2016 and as subsequently amended may be facilitated more efficiently particularly how X may be spared from suffering distress in future together with their proposal regarding the issue of make-up time.
No order as to costs in respect of the contravention application.
Further consideration of this matter is adjourned to 9 May 2017 at 11:00am.
IT IS NOTED that publication of this judgment under the pseudonym Harrington & Yardley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1941 of 2015
| MR HARRINGTON |
Applicant
And
| MS YARDLEY |
Respondent
REASONS FOR JUDGMENT
The parties to these contravention proceedings are Mr Harrington and Ms Yardley. They are the parents of X born (omitted) 2014. Mr Harrington lives in public housing in (omitted). He is a disability support pensioner and part-time (occupation omitted).
The mother lives in (omitted). She identifies as an indigenous person. She has two older children – A aged about 14 and B aged about 11. X currently lives with the mother in (omitted). A lives with his maternal grandmother.
The parties met via Facebook. They were not living together when Ms Yardley fell pregnant with X. They lived together, for a short period of time, in Mr Harrington’s home at (omitted) when X was three months old.
However, the relationship between the parties soon broke down and they finally separated, in mid-June 2015. The mother remains bitter that she and B were forced to leave the father’s home. Accordingly, the parties have no history of sharing X’s care. It is also abundantly clear to me that they neither like nor trust one another.
The father commenced these proceedings in early June 2015 seeking to spend time with X. On 1 October 2015, an order was made for the father to spend professionally supervised time, with X, at the (omitted) Children's Contact Centre. On this date, the parties were also referred to a child dispute resolution conference.
The parties disagree about many matters arising from their brief and unhappy relationship together. In summary, the mother alleges that the father has impaired parental capacity because he has significant mental health issues and is dependent on a variety of prescribed drugs, including valium.
For his part, the father alleges that the mother is also dependent on prescribed drugs, including endone, serquel and valium, which dependence caused her to have a heart attack in September 2015. He also alleges that Ms Yardley has significant psychiatric issues. The mother acknowledges being diagnosed with schizophrenia in 2005.
The father began the process of professionally supervised time with X, on 2 January 2016. This entailed a series of fortnightly visits each of two hours duration, which were each overseen by an independent person, who kept notes in respect of the interactions between Mr Harrington and X. These notes were later reduced into a written report, which has been provided to the court.
The first visit occurred without incident. The second scheduled visit did not occur. The third visit, scheduled for 31 January 2016, proceeded uneventfully with the supervisors notes indicating that X was able to snuggle her head into Mr Harrington’s shoulder. Later, during the same visit, Mr Harrington was able to change X’s nappy successfully.
When the matter returned to court, on 9 February 2016, the parties agreed that the supervised visits would continue but, in tandem with them, Mr Harrington would spend time with X, on alternate Saturdays, from 3:00pm until 5:00pm, at a park in (omitted), with the time to be supervised by the maternal grandmother, Ms W.
It is the mother’s position that Mr Harrington behaved oddly when he was spending time with X, subject to the supervision of the maternal grandmother. For her part, Ms Yardley took extensive notes. She described Mr Harrington as being scared and reporting that he was being followed, as there were druggies in his house. The implication of this evidence being either that Mr Harrington was psychiatrically unwell, under the influence of illicit drugs, or both.
Against this background, when the matter returned to court on 13 May 2016, further orders were made for the supervised time at the (omitted) Children's Contact Centre to continue. The paternal grandparents were also authorised to attend at the children’s contact service, with Mr Harrington, so that they could each begin to form some sort of relationship with X. Significantly, on this occasion, it was also ordered that a family report be prepared, by an experienced social worker, Mr T.
Mr T’s report was released to the parties in mid-August of 2016. He was able to interview both Mr Harrington and Ms Yardley and observe each of them, interacting with X, in their respective homes. Mr T, Ms Yardley described herself as a “very protective mother”.
In addition, she expressed mistrust in respect of both the father and his parents. At the time of the family report, it was the mother’s view that Mr Harrington was simply incapable of adequately caring for X because of his mental and physical health, which she believed had been significantly compromised by his previous involvement in the illegal cooking of methamphetamines.
Ms Yardley confirmed to Mr T that she had suffered a heart attack during 2015. She was born on (omitted) 1986. She attributes her condition to a genetic pre-disposition to heart problems, rather than being due to any illicit drug use on her part. She confirmed a diagnosis of schizophrenia as a teenager but indicated that she was not currently symptomatic in respect of the condition or receiving any medication or treatment for it.
When asked by Mr T whether X should have some form of relationship with her father, Ms Yardley replied in the following terms:
“‘I don’t think that he should see her until she is about five, a proper talking age.’ The writer asked Ms Yardley why she thought that five would be the proper time for X to start spending time with her father. Ms Yardley said ‘She can tell me what is happening.’”[1]
[1] See Annexure H of Mr Harrington’s affidavit filed 1 September 2016 - family assessment report of Mr T dated 12 August 2016 [page 2]
Mr T characterised Mr Harrington as an unsophisticated individual. He confirmed being in receipt of a disability support pension as a consequence of physical and intellectual issues, including a back injury sustained in a car accident. He confirmed to Mr T previous illicit drug use as an adolescent, but denied current use.
The father further alleged that during the parties’ brief relationship, Ms Yardley had utilised him to doctor shop to obtain prescribed pain killing medication for her use rather than his. In this context, the father described the mother as being evil in respect of the things she had said about him and forced him to do.
Mr T, Mr Harrington indicated that he wished orders to be made, which would enable him to spend regular periods of time with X. However, he wished such time to be supervised by his parents so that Ms Yardley would not be able to make any spurious allegations of misconduct against him.
Mr T observed X to have a close and affectionate relationship with her mother. In respect of the observed interaction between Mr Harrington and X, Mr T wrote as follows:
“The session went well. X was relaxed and at ease with Mr Harrington. She let him hold her and touch her. She sat on his lap. She took food and drink from him. X seemed very comfortable with Mr Harrington.”[2]
[2] Ibid at page 11
Against this difficult background, Mr T opined as follows:
X has now formed a relationship with Mr Harrington. She is familiar with him and comfortable in his care. At the moment the couple have a play relationship. If this relationship is to develop towards a more normal, ordinary parent child relationship X will have to spend an increasing amount of time with Mr Harrington and away from the Contact Centre.
It would appear that X is ready to start spending time with Mr Harrington away from the Contact Centre. This should occur in a graduated manner. Initially X should spend three hours on alternate weekends on both the Saturday and Sunday with Mr Harrington. After six months X should be permitted to spend six hours on alternate weekends on both the Saturday and Sunday with Mr Harrington for a further six months.[3]
[3] Ibid at page 16
In this context, Mr T was hopeful that the relationship between X and her father could develop and, in time, move to one which encompassed the child spending overnight time with Mr Harrington. However, Mr T was not unaware of the difficulties in the case. He noted that the parties lived a considerable distance apart and therefore it would be necessary for them to agree upon hand over points and compensation for costs. At this stage, Mr T also recommended that X be independently represented.
Mr T’s assessment of the family is similar to my own. The relationship between Mr Harrington and Ms Yardley is one characterised by mutual criticism, with both energetically engaged in attempts to discredit the other. The parties hardly know each other but are the parents of a young child. They live approximately 70kms apart and are poorly resourced financially. On any view, it will be difficult for the court to manage arrangements for Mr Harrington to spend time regularly with X.
Both of the parties are funded by Legal Aid. As a consequence, following the release of Mr T’s report, they were directed to attend a family dispute resolution conference, to see if they could reach a mediated agreement, in the light of Mr T’s recommendations.
The conference took place on 16 August 2016 and the matter returned to court on 13 September 2016. On this occasion, ostensibly at least, the parties agreed as follows:
“The child X born (omitted) 2014 live with the mother.
The father spend time with the child each alternate weekend from 9:00am to 12:00pm noon on both the Saturday and Sunday commencing Saturday, 24 September 2016.
All time be supervised by the paternal grandfather and/or the paternal grandmother.
All handovers occur at the petrol station at (omitted) with the father to provide to the mother $30.00 on Saturdays.
The father complete a parenting course.
The mother provide written advice to the father as to the child’s dietary requirements and that the father not provide the child with junk food.
The child be transported in a child car seat that is appropriate for her age and is up to Australian standards.
The parties do all things necessary to participate in a Family Dispute Resolution Conference to be held at the Legal Services Commission at 159 Gawler Place, Adelaide on 16 January 2017 at 9:30am.
The father be restrained and an injunction be granted restraining the father from consuming illicit drugs or alcohol during the time that he spends with the child or 24 hours beforehand.
The parties are restrained and an injunction issue restraining them from discussing these proceedings or any adult issues pertaining to these proceedings with or within the presence of the child or allow any third party to do so.”
By this time, Mr T’s recommendation that X be independently represented had been implemented. X’s representative is Linda Gross, an experienced family solicitor who practices in (omitted). Invariably, Ms Gross briefs Mr Leo Reynolds, a barrister to appear on her behalf in necessary court proceedings concerning X.
There has been an almost total failure of the orders made on 13 September 2016. From the father’s perspective, the mother has been intent on sabotaging the orders by whatever means are open to her. From the mother’s perspective, X is a vulnerable child, who has become hysterical at the prospect of spending time with her father, whom she (the mother) believes is incapable of emotionally regulating the child or of attending to her needs appropriately.
The current proceedings
The father commenced the current round of proceedings on 20 October 2016. In an application in a case, he sought an order that the court issue a recovery order, directed to the Australian Federal Police, so that he could spend time with X. In addition, he proposed that hence forth X be exchanged between the parties at the neutral and professionally supervised location of the (omitted) children’s contact centre. The mother has not formally responded to this application.
In tandem with this application, Mr Harrington issued a contravention application, which contains three counts as follows:
24/9/2016
9:00am
(omitted) service station
After the child had been placed in the paternal grandparents’ car the respondent mother then took the child out of the parental grandparents’ car and left with the child.
25/9/2016
9:00am
(omitted) service station
The respondent mother did not attend for handover.
8/10/2016
9:00am
(omitted) service station
The applicant father arrived at the handover location at 8:40am with the paternal grandparents. The respondent mother and the maternal grandmother were already at the handover location at that time. At 9:00am the maternal grandmother brought the child to the paternal grandparents’ car. The applicant father got out the car to meet the maternal grandmother at which time the maternal grandmother said to the applicant father, “This isn’t working and visits have to go back to supervised at the children’s contact centre”. The applicant father did not respond or react as the maternal grandmother went back to her car. The respondent mother and the maternal grandmother left at 9:05am. The applicant father had arranged for police to attend at handover but police did not arrive until 9:10am. The police officer attempted to call both the respondent mother and the maternal grandmother but neither answered their phone.
Each of these counts has been formally put to Ms Yardley. She agrees that X did not spend time with her father on any of these occasions. However, it is her position that she had a reasonable excuse for not facilitating the time, which on two occasions related to X’s health and safety and on the other occurred because she forgot about her obligation to facilitate time.
These proceedings and the current reasons for judgment are directed to resolving the contravention proceedings only. The independent children’s lawyer elected not to take part in them. Counsel for the father, Mr Roberts wished the contravention proceedings to be determined prior to any consideration being given to how the current regime could be modified to make it more child-centric and so give it a better chance of being implemented successfully.
The mother and her counsel, Ms Milen were not inclined to give any quarter. The mother’s attitude was one of intransigence and opposition. From my perspective, I question the utility of utilising contravention proceedings to achieve a resolution in respect of the complicated parenting dynamic present in the current matter.
However, from the father’s perspective, it is imperative that the court signal its disapproval, to Ms Yardley, of what he perceives to be her refusal to allow X to have any form of relationship with her father.
The legal principles 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 that the order of 13 September 2016 is a parenting order and so amenable to the provisions of division 13A.
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.”
Although Mr Roberts made limited submissions to the court, it appears to be Mr Harrington’s position that Ms Yardley has intentionally failed to comply with the orders concerned. In the event that that submission is rejected, it would appear to be his position that, in objective terms, Ms Yardley has not done enough to ensure that X separates from her and spends time, with Mr Harrington, as envisaged by the applicable orders.
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)].
Again, Ms Milen did not elect to make any submissions in support of Ms Yardley’s position in the case other than that the court had heard her evidence. However, it would appear to be the mother’s position that she elected not to permit X to spend time with her father because she reasonably believed that it would be injurious for X to do so.
On the other occasion, when Ms Yardley alleges that she forgot about the applicable order, the court should infer that she did not properly comprehend the obligation placed upon her and therefore she should be exculpated from responsibility for her emission in all the circumstances prevailing.
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 Harrington to establish on the balance of probabilities that Ms Yardley has breached the parenting orders in question. If he is successful in discharging this onus, the onus then shifts to Ms Yardley to establish, on the balance of probabilities, that she had a reasonable excuse for not complying with the applicable orders.
In Jets & Maker[4] O’Ryan J said as follows in respect of the standard of proof:
[4] 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[5] 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.”
[5] Kelly & Kobelnek [1998] FamCA 296 at page 3-4
In Taikato & R[6] 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.
[6] 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[7] 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.”[8]
[7] Brennan CJ, Toohey, McHugh and Gummow JJ
[8] 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.”[9]
[9] Ibid at page 466
In my view, in the context of determining whether a reasonable excuse has been established, it is useful for the court to examine the intent of the legislature enacting the relevant provisions. In this context, 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.
Accordingly, the legislature views the contravention of parenting orders seriously. Particularly, in the context of ensuring that children are able to have a meaningful relationship with both their parents. The legislature also recognised that the contravention of parenting orders, particularly so-called access or contact orders is a major bone of contention between separated parents and, as such, a source of great conflict, which ipso facto is detrimental to children.
Sentiments, of this kind, were expressed as long ago as 1981 by the Full Court of the Family Court. In G v G[10] Evatt CJ said as follows:
“What is in issue is to ensure the proper functioning of the mechanisms provided by the Family Law Act for the resolution of family conflict. These mechanisms have as their guiding principle the protection of the welfare of children. If the Court is not seen as effective in this function, if it is difficult to bring a case before the Court or to secure compliance with its orders people will be tempted to turn away from the legal system and to take what they want by whatever means are open to them, including force. If individual instances of defiance are ignored then the effectiveness of the whole system will be eroded and the Court's power to protect a weaker party against oppression will be diminished. The protection of children's welfare will be subordinated to the selfish interests of one party or another.”
[10] G v G (1981) FLC91-042 at 76,361
In this context, it is apposite to point out to the parties concerned, particularly Ms Yardley, that the court was satisfied, on 13 September 2016, that the orders that it made on that date, with the consent of each of the parties concerned, were calculated to be in X’s best interests. They directly flowed from the report of Mr T, in which both parties had taken part and which demonstrated a significant level of relationship between the father and X.
Contravention proceedings have been described as quasi criminal in nature.[11] 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.
[11] 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.[12]
[12] See Sahari & Sahari (1976) FLC 90-086
The procedural requirements attaching to contravention applications are set out in rule 25B.04 of the Federal Circuit 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.[13]
[13] See Jets & Maker (supra) at [89]
In particular, O’Ryan J made reference to Attreed & Attreed[14] 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 ...”
[14] See Attreed & Attreed (1980) FLC 90-907 at 75,732
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.[15] 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.
[15] 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.”[16]
[16] Ibid at 79,815 – 816
The evidence
Mr Harrington, Ms Yardley and her mother, Ms W gave evidence in these proceedings. Mr Harrington’s parents were present at the (omitted) petrol station on both 24 September and 8 October 2016 and were integrally involved in what occurred. However, they did not give evidence in the proceedings. This omission was not the subject of any, by either party, as envisaged by the High Court in Jones v Dunkel.[17]
[17] See Jones v Dunkel (1959) 101 CLR 295
Neither the father nor the mother was a particularly impressive witness. The father was a poor historian of few words. The mother was argumentative and self-righteous in tone. In these circumstances it was difficult to tease out precisely what occurred at (omitted) on the days in question, other than that it was an unpleasant and tense situation, tinged, from time to time, with outbreaks of extreme emotion. For obvious reasons, it was not an environment calculated to encourage clear consideration or calm thoughts.
On 24 September 2016, both the paternal and maternal aspects of X’s family arrived at the service station half an hour in advance of the stipulated handover time. They each remained in their respective cars waiting for 9:00am to come around. No-one concerned took the initiative to break the ice in any way whatsoever. The description of the two families sitting in separate cars, waiting for the handover, reminds me of the exchange of a hostage or a captured spy. It does not seem to be child focussed.
At 9:00am, it is common ground that Mr Harrington paid Ms Yardley the $30.00 due to her and X was transferred from the mother’s arms to his. Thereafter, Mr Harrington was able to secure the child in his parent’s vehicle in the car seat placed there. Thereafter, Mr Harrington alleges that Ms Yardley “ripped her” [X] “out of the car seat”.
In this context, Mr Harrington alleges that his parents “observed the mother pinch X forcefully” causing the child to become distressed. This evidence is hearsay and, as previously indicated, neither Mr Harrington nor Ms Harrington were called to give evidence in respect of it. The mother denies that it occurred.
I do not accept that Ms Yardley did deliberately assault X in an attempt to cause her distress so that the contact visit could be sabotaged. However, it is clear that, to a large extent, X had been transferred between the parties and secured in Mr Harrington’s parents’ car, when she became distressed.
The parties fundamentally disagree as to what should have occurred at this stage. From the father’s perspective, the mother and Ms W should have moved away and allowed X to leave with her father and paternal grandparents. From the mother’s perspective, the extent of the child’s distress was so extreme that it was justified for her to remove X from her car seat.
Mr Harrington’s evidence about the situation was not particularly clear. He did not present as an articulate historian. On the other hand, Ms Yardley and her mother, despite being somewhat voluble individuals, did provide a comprehensive narrative.
This is not to say that I necessary fully believed the account provided by either of them. In particular, the mother’s evidence seemed to be somewhat exaggerated. I do however accept that X did become significantly distressed. Regrettably, the circumstances were such that it was difficult for the child’s distress to be managed in a sensible fashion. In this context, I am satisfied that emotions, on both sides, became overblown.
The mother alleges that, once X became distressed, she attempted to obtain a comforter for her. This is a pink dressing gown known as X’s nanny. At around this stage, Ms Yardley alleges that Mrs Harrington said words to the effect of “too bad, she’s got to get used to it” which allegedly caused emotions to become more extreme.
As Mrs Harrington was not called to give evidence, she was not in a position to refute this allegation. In the circumstances prevailing, it does not seem to me to be beyond the bounds of possibility that she would say something like this. It was not helpful for all sorts of reasons Ms Yardley is not a particularly conciliatory sort of person – certainly in the context prevailing at the relevant time.
In her evidence, Ms W is particularly critical of Mr Harrington for not being more proactive in attempting to calm X down. From the father’s perspective, he was of the view that the mother had precipitated the child’s distress and, if she left her alone, the distress would dissipate in due course.
In my view, Ms W is likely to be the most objectively reliable witness. It is significant that she concedes that the initial handover of X, to Mr Harrington, was okay and the child was successfully secured in her car seat enabling Mr Harrington also to get in the vehicle. Mr Roberts makes much of this situation. From his perspective, handover being completed, it was incumbent upon Ms W to leave.
Once X was in the car, Ms W deposes that she became hysterical. The mother asserts that she was vomiting to such an extent that “her leg was full of vomit”. Ms W describes tears and mucus. As previously indicated, although it seems to me that their evidence is likely to be somewhat exaggerated, there can be no doubt that X was significantly distressed. It is also apparent to me that Mr Harrington did nothing to mediate the child’s distress, leaving it solely to the mother and Ms W.
It is in these circumstances that the mother took it upon herself to remove X from the car. In so doing, I am satisfied that she was influenced to a significant degree by both her feelings of umbrage, at what she perceived to be the father’s ineffectuality, the lack of conciliatory feelings expressed by the paternal grandparent; as well as her perception that X was significantly distressed.
What was clearly needed, at the time, was some form of no nonsense broker, who could have calmed everyone down, particularly the adults involved. Regrettably, the whole situation was one replete with tension, which the parties themselves and those associated with them did not have the necessary resources to diffuse. No one was able to stand back and say, in effect, hang on, let’s all take a deep breath and work out how we can sort this out.
In this context, I am satisfied that Ms Yardley took things into her own hands and removed the child. A calmer head would have been able to sooth the child and move the matter forward in a positive way. Ms Yardley was neither inclined nor able to do so, whilst she was so upset.
It is common ground that Ms Yardley did not attend at the (omitted) service station, on Sunday, 25 September 2016, as envisaged by the orders of 13 September 2016. In this context, Mr Harrington deposes as follows:
“I organised for Police to attend at handover scheduled for Sunday 25 September 2016 to help ensure the mother provided X to me. I attended on Sunday 25 September 2016 at 9:00am for handover at (omitted) with my parents and Police and waited until 9:30am (half an hour past handover) but the mother never attended. I then sent my solicitor a test message, “What is the point in having court orders if they are not obeyed”.[18]
[18] See father’s affidavit filed 20 October 2016 at paragraph 7
On her oath, Ms Yardley has indicated that she misunderstood the order and was unaware that it envisaged Mr Harrington spending time with X on both the Saturday and Sunday of alternate weekends. She deposed that it was her understanding that the time was only going to be on Saturday.
Apart from his assertion that he does not believe Ms Yardley, Mr Harrington is not in a position to disprove this assertion. Nor am I. In all the circumstances, I am prepared to give the mother the benefit of the doubt for the second count.
To a very large degree, what happened on 8 October 2016 was a replay of what occurred on 24 September 2016. Mr Harrington complains that the child had been primed to be distressed at handover and therefore he was not given an adequate chance to take her, as the orders envisaged. It is his evidence that he has had experience of X being distressed at other handovers, but she invariably calms down after about ten minutes or so.
In respect of 8 October, Ms Yardley deposes that she had brought X’s nanny in anticipation of difficulties arising. Once again, she is particularly critical of Mr Harrington for being ineffectual in respect of dealing with X’s obvious distress which she asserts stems from the child’s essential lack of relationship with him.
Ms W describes X as clinging to her mother like a koala bear. She further indicates that she tried to coax the child to go with her father but Mr Harrington would not assist. She describes him as “giving up quite easily” in respect of assuming control of X. In this context, she describes Mr Harrington wearing a hooded jacket with the hood concealing his face. She believes that it was not helpful for the father to have his features concealed in this way.
Ms Yardley asserts that she said to X words to the effect of “time to go to daddy”. It is her position that she received no reciprocating gesture from Mr Harrington and things “may have been different if she [X] had recognised him [the father].”
From my perspective, I found the evidence both concerning and perplexing. However, a number of features appear relatively clearly:
X was emotionally distressed on the occasions concerned. It is hardly surprising that she was distressed given the longstanding animosity between the parties and their mistrust of one another.
It seems probable that Ms Yardley was disinclined to go the extra mile for Mr Harrington or was able to defuse the difficult situation prevailing.
This was particularly so given what she perceived to be Mr Harrington’s lack of facility in dealing with the distressed child and apparent inability to offer to help.
In my view, what clearly comes from this disastrous scenario is the inescapable conclusion that both sides could have done more to make the envisaged orders work more effectively for X’s sake. Mr Harrington is not an assertive or confident person for a variety of reasons. Ms Yardley had a powerful motivation to see the contact regime, of which she disapproved, fail, notwithstanding her ostensible consent to it.
Following the contravention proceedings which primarily took place on 19 December 2016, I was concerned that the arrangement envisaged in the primary order of 13 September 2016 was simply not working, as the parties themselves were incapable of managing the handover concerned.
For that reason, on 22 December 2016, I made the following order:
“The father spend time with the child X born (omitted) 2014 each Saturday commencing on 24 December 2016 between the hours of 10:00am and 3:30pm with the child to be exchanged under the auspices of the (omitted) Children's Contact Centre through its supervised handover service with the father to provide the mother with the sum of $35.00 at the conclusion of each period.”
I made this order because it seemed to me that it was a more useful focus for the court to see if some practical steps could be taken to ensure that Mr Harrington began to spend time with X, so that the relationship between the two could be consolidated in the manner envisaged by Mr T. In addition, I was aware that the earlier order had envisaged the parties having a further family dispute resolution conference, at the Legal Services Commission, in mid-January of 2017.
I was also hopeful that the involvement of the independent children’s lawyer, at such a conference, might be of assistance. I have not been told, in any detail, what has happened since late December. The parties disagree as to what apparently occurred at the conference concerned. However, it does not appear to be the case that there has been the lessening of any tension between the parties. It is against this background, that Mr Roberts insists that the contravention proceedings be concluded and a finding made one way or the other.
Conclusions
As I am at pains to point out to both the mother and the father, I am satisfied that in this sad and perplexing case, there are rights and wrongs on both sides. The mother could have done more on both occasions to diffuse tensions and walk away from the situation, notwithstanding the child’s distress.
However, on the other hand, X’s distress was real and, in such circumstances, it is unreasonable to assume that Ms Yardley could be immune to it, particularly given the tender years of X and the lack of parenting relationship between the parties.
More experienced and trusting parents would have been able to diffuse the situation concerning X, without undue difficulty. What the situation called for was calm heads and a projection of assurance, so far as X was concerned.
In this context, it seems to me to be more likely than not that Ms Yardley had more resources in this regard than did Mr Harrington. To a certain degree she chose not to attempt to diffuse the situation but nor did Mr Harrington and his parents. No one was inclined to be conciliatory. As such, all concerned must bear some culpability for the parlous situation which developed.
In all these circumstances, I question the wisdom of the contravention proceedings in the first place. In my view, this is not the sort of case which creates a clear binary distinction between fault and exculpation. It is imprudent of both parties to approach the case on the basis that it is a zero sum game.
I have already alluded to what Ryan J said in Attreed. In quasi criminal proceedings if there is any ambiguity arising from the factual situation concerned in contravention proceedings, such ambiguity should be resolved in favour of the person facing the contravention. In these circumstances, I find that Ms Yardley, although she is open to significant criticism for her conduct, has a reasonable excuse for her actions on the applicable dates concerned.
This excuse is based on the distress being exhibited by X which I accept was extreme. I also bear in mind X’s age. She was only two years and three months old at the time. In addition, she had only the beginnings of a relationship with her father. As a result of all these matters, X herself would have had no cognitive understanding as to what was happening to and around her.
As such, her distress required some form of immediate mediation. I do not think that it could have gone untended. The obvious person to provide this mediation was Ms Yardley, who is X’s primary carer. How she elected to deal with X’s distress, which I accept was significant, is open to question, but not the child’s distress itself. As I say, the child’s distress required intervention and she (Ms Yardley) was the obvious person to provide the intervention.
In the highly charged circumstances, she chose to withdraw the child from the situation, which was precipitating her distress. I accept that she did so because of her assessment of the child’s level of distress and its potential impact on her health, which I accept includes her overall emotional wellbeing. In all the circumstances, I accept that this was an objectively reasonable response, notwithstanding my view that a better outcome could conceivably have been reached, if some thought had been applied to the situation.
That however cannot be the end of the matter. The child’s distress, on two occasions, cannot justify the prolonged prevention of her spending time with her father, as directed by the court. Ms Yardley agreed to the orders of September 2016, which envisaged the relationship between X and her father being facilitated. It remains my view that X’s best interests will be served if she spends regular periods of time with her father. It is incumbent upon the mother to facilitate this relationship and not otherwise attempt to passively undermine or subvert it.
In my view, it is to this end that these proceedings should be more profitably directed than to determining precisely who was at fault for what I regard as a highly undesirable situation. When it created Division 13A the Commonwealth legislature envisaged the court having a greater range of options, in respect of contravention scenarios.
This greater range of options, available to the court in respect of contravention applications, is 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[19] – 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.
[19] Contravention applications are deemed to be more serious if the party concerned has previously been found to have contravened a parenting order.
I propose to deal with the matter on the basis that it is a stage 2 matter – that is in respect of contravention one and three, the contravention is made out, but the mother has made out a reasonable excuse. It will be necessary for the primary order to be varied and, if necessary, orders made to compensate Mr Harrington for any time he has not been able to spend with X in the period since the contravention proceedings were commenced. I decline to make any order for costs.
The mother is on notice, as a consequence of the findings in these proceedings, on the obligations falling on her to promote and facilitate a relationship between X and her father by doing everything necessary to implement the court’s orders to which she agreed.
I will adjourn the proceeding to 9 May 2017 at 11:00am and direct that each party file a brief affidavit, of no more than five double spaced pages, setting out their respective proposals as to how the orders may be facilitated more efficiently and X spared from distress in future. These affidavits can also address the issue of make-up time.
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 one hundred and eight (108) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 29 March 2017
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