Harris and Harris (No 2)

[2016] FamCA 297

FAMILY COURT OF AUSTRALIA

HARRIS & HARRIS (NO 2) [2016] FamCA 297

FAMILY LAW – CONTRAVENTION – where the mother alleges the father contravened orders of the Court by encouraging the children to abuse, criticise or denigrate the mother – where the father denies the allegation – where the contravention is not established.

Family Law Act 1975 (Cth) 68B, 70NAC, 70NAE, 70NAF

APPLICANT: Ms Harris

RESPONDENT:	Mr Harris
INDEPENDENT CHILDREN’S LAWYER	Legal Services Commission of SA

FILE NUMBER: ADC 4951 of 2009

DATE DELIVERED: 4 May 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 15 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Harley

SOLICITOR FOR THE RESPONDENT:	Dixon Gallasch Pty Ltd
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER	N/A
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER	Legal Services Commission of SA

Orders

1. The matter is adjourned to a date to be advised for submissions on any orders sought pursuant to subdivisions B and C of Division 13A of Part VII of the Act.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Harris (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4951  of 2009

Ms Harris

Applicant

And

Mr Harris

Respondent

REASONS FOR JUDGMENT

Introduction

1. One of the contraventions alleged in the Application for Contravention filed by the mother on 8 February 2016 is the third item which alleges that the father contravened paragraph 2 of the order of 16 December 2015 on 26 January 2016 at 17.30 at B Park.

The hearing

1. The evidence in relation to the alleged contravention was heard on 15 April 2016 when the mother was unrepresented and the father was represented by Mr Harley of counsel.

Particulars of the alleged contravention

1. Paragraph 2 of the orders of 16 December 2015 provides:

   Both parties are restrained from:

   a)    discussing any issues raised in these proceedings with or in the presence of the children;

   b)   discussing any issues in relation to the care arrangements for the mother’s two children [C] and [D] with or in the presence of the children;  and

   c)   encouraging any of the children to abuse, criticise or denigrate the other parent or behave disrespectfully towards the other parent.”

2. The mother’s alleged contravention is based upon an allegation that the father breached paragraph 2(c) by encouraging the children to abuse, criticise or denigrate the mother because it was alleged that he behaved disrespectfully towards the other parent, namely the mother.

3. The mother alleges in the Application for Contravention that the father breached that order on 26 January 2016 at 17.30 at B Park.  The alleged contravention statement reads as follows:

   I attended by first Australia Day celebration with two of my friends.  We had arrived and we went to find a place near the stage.  We arrived at 1700.  I left them so I could go to the toilet and also to have a cigarette away from the children whom we were sitting near.  When I went back I noticed the father and all three children sitting right behind me.  [Mr Harris] left with the children.  My friends then went for a walk.  The statutory declaration explains what happened as I was not near them.

4. Annexed to the affidavit of the mother filed on 8 February 2016 is the statutory declaration of the mother’s friend, Mr E.  That statutory declaration was confirmed by Mr E when he gave his oral evidence.

The law

1. Paragraph 2 of the orders of 16 December 2015 sets out injunctions restraining both parties from discussing matters in the presence of the children and “encouraging any of the children to abuse, criticise or denigrate the other parent or behave disrespectfully towards the other parent.”

2. Section 68B of the Family Law Act 1975 (Cth) (“the Act”) provides as follows:

   Section 68B

   Injunctions

   (1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:

   (a)an injunction for the personal protection of the child; or

   (b)an injunction for the personal protection of:

   (i)     a parent of the child; or

   (ii)    a person with whom the child is to live under a parenting order; or

   (i)     a person with whom the child is to spend time under a parenting order; or

   (iv)    a person with whom the child is to communicate under a parenting order; or

   (v)     a person who has parental responsibility for the child; or

   (c)an injunction restraining a person from entering or remaining in:

   (i)a place of residence, employment or education of the child; or

   (ii)a specified area that contains a place of a kind referred to in subparagraph (i); or

   (d)an injunction restraining a person from entering or remaining in:

   (i)a place of residence, employment or education of a person referred to in paragraph (b); or

   (ii)a specified area that contains a place of a kind referred to in subparagraph (i).

   (2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

   (3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.

3. The type of injunction includes, but is not limited to the type described in ss 1(a) and (b). 

4. Division 13A of Part VII of the Act deals with the “consequences of failure to comply with orders, and other obligations, that effect children”.  Section 70NAC provides as follows:

   Section 70NAC

   Meaning of contravened an order

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children 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;

   (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.

   Note:  Parenting orders may be subject to any subsequent parenting plan (see section 64D). This means that an action that would otherwise contravene a parenting order may not be a contravention, because of the subsequent inconsistent parenting plan. Whether this is the case or not depends on the terms of the parenting order.

5. The father did not claim that he had a reasonable excuse but it is part of the father’s case that the altercation which took place between him and Mr E was brought about by the mother’s behaviour which he described as “stalking”. 

6. The basis of a reasonable excuse is set out in s 70NAE:

   Section 70NAE
   Meaning of reasonable excuse for contravening an order

   (1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

   (2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a)  the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)  the court is satisfied that the respondent ought to be excused in respect of the contravention.

   (3)If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.

   (4)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:

   (a)  the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)  the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (5) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a)  the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)  the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (6) A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if;

   (a)   the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)  the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

   (7)  A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:

   (a)  the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)  the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

7. Section 70NAF provides for the standard of proof as follows:

   Section 70NAF
   Standard of Proof

   (1)Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

   (2)Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

   (3)The court may only make an order under:

   (aa)   paragraph 70NEB(1)(da); or

   (ab)   paragraph 70NECA(3)(a); or

   (a)    paragraph 70NFB(2)(a), (d) or (e); or

   (b)    paragraph 70NFF(3)(a);

   if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.

8. Subdivisions B, C, D, E and F of Division 13A of Part VII of the Act provide for the powers of the Court to make orders after hearing the contravention application. These matters will be considered after hearing submissions on behalf of the parties once this judgment has been published. The submissions will necessarily include those of the Independent Children’s Lawyer.

Evidence of the alleged contravention

1. As set out above, the mother made the allegation in the Application for Contravention asserting that the father had contravened paragraph 2 of the order of 16 December 2015 on 26 January 2016 at 17.30 at B Park.  The statement of the alleged contravention was:

   I attended by first Australia Day celebration with two of my friends.  We had arrived and we went to find a place near the stage.  We arrived at 1700.  I left them so I could go to the toilet and also to have a cigarette away from the children whom we were sitting near.  When I went back I noticed the father and all three children sitting right behind me.  [Mr Harris] left with the children.  My friends then went for a walk.  The statutory declaration explains what happened as I was not near them.

2. The affidavit annexed the statutory declaration of Mr E.  The relevant part of that statutory declaration is paragraph 4:

   4.While we were waiting for the parade we saw [Mr F] from Chanel Seven, we always watch channel seven so we decided to say hello to [Mr F].  While were (sic) talking with [Mr F], I happened to glance out of my left eye and I noticed [Mr Harris] and the children had made their way to where we were.  When [Mr Harris] walked past me he nudged by shoulder with enough force to let me know of his presence and that he had walked past me.  He then stood behind and to the left of me, while the children were standing in front of me.  At that point [Mr F] told us that he had to go because he had a live feed to do.  It was then I turned towards [Mr Harris] to ask why he was standing behind me but before I could say anything, he said to me “I believe you know these and pointed towards the children”.  I replied, yes I know [G], [H] and [J].  [Mr Harris] then said, “stop taking fucking photos of them” and as he stared walking away, he elbowed me in the ribs with his right elbow, while saying at the same time “stop taking fucking photos of us and that fucking bitch you’re with is nothing but fucking trouble”.”

3. Annexed to the affidavit of the mother are the qualifications of Mr E relating to the Bachelor of Psychological Science and the Bachelor of Social Science he received on 19 March 2014.  When giving his oral evidence and asked his occupation, he said “no occupation”.

4. During the cross-examination of the witness, counsel for the father asked numerous questions about the photographs being taken by Mr E at B Park on 26 January 2016.  These photographs included photos of the children which were also annexed to the mother’s affidavit.  Although the witness said that the children were well known to him and had previously called him “uncle”, he maintained that when he was taking the photographs at B Park he did not realise that they were the father’s children at the time.

5. In cross-examination by counsel for the father, Mr E was asked about the altercation which occurred in the presence of the children.

6. Evidence during the cross-examination of Mr E by counsel for the father included:

   And then he brushed past you and bumped you in the process?‑‑‑When he first arrived he walked past me and ran – brushed me or nudged my shoulder to let me know that he was there and he stood behind me while I was talking to [Mr F].  When I finished talking, that’s when he walked past, told me not to – to stop taking –

   There were a lot of people crowded around [Mr F] trying to get a chat with him?‑‑‑No, there wasn’t.

   And the only thing that [Mr Harris] said to you was, “Stop taking fucking photos of them,” correct?‑‑‑That’s correct.

   He never spoke to you at any other time on that day?‑‑‑No.

   Sorry, that was a double negative.  Did he speak to you at any other time on that day?‑‑‑No.

   Thank you?‑‑‑Only at that time.”

7. After some brief questioning by the mother, I asked the following questions recorded in the transcript as follows:

   HER HONOUR:   Mr Harley, I’m going to ask a question myself because of an inconsistency that I perceive and I will allow you and, if necessary, [Ms Harris] to ask a question.  I’m looking at your affidavit – sorry, your statutory declaration now, [Mr E], and at the end of paragraph 4 it refers to some conversation.  It says:

   I replied, “Yes, I know [G], [H] and [J].”  [Mr Harris] then said, “Stop taking fucking photos of them,” and as he started walking away he elbowed me in the ribs with his right elbow while saying at the same time, “Stop taking fucking photos of us and that fucking bitch who’s with you is nothing but fucking trouble.”

   Is that part of your affidavit true?‑‑‑Yes.

   Please explain, then, why you told the court when you were answering questions by Mr Harley that he didn’t say anything else to you that day, save and except, “Stop taking fucking photos of them”?‑‑‑I misunderstood what Mr Harley had said.

   Sorry, you miss ‑ ‑ ‑?‑‑‑I misunderstood what Mr Harley had said.”

8. When the mother gave her evidence in relation to the events of 26 January 2016 at B Park, the mother denied that she was following the father and the children with Mr E, but otherwise her evidence was not relevant to the alleged contravention on 26 January 2016.

Evidence of father in response to allegation concerning contravention on 26 January 2016

1. The father gave oral evidence.  He confirmed that he was present at the B Park celebrations for Australia Day on 26 January 2016 together with his three children in his care.  He confirmed that he had observed the mother and Mr E and their friends present at the function after about 15 minutes.

2. He gave evidence that they were sitting as a family near the stage and later moved to get food.

3. His evidence was that the children and he were both concerned that Mr E was taking photographs.  He was asked whether he had then moved and he said “No”.  His evidence was that later when they were in I Street near the parade he told Mr E to stop taking photographs (meaning to stop taking photographs of the children).  An altercation then took place which resulted in the police being involved.  When asked whether he had said to Mr E words to the effect “Stop taking fucking photos of us and that fucking bitch you are with is nothing but fucking trouble”, his response was “Not that I can recall”.  He denied saying anything disparaging of the mother and denied assaulting or elbowing, or even brushing, Mr E.

4. When cross-examined by the mother, the father again denied referring to the mother as a “Fucking bitch” in the presence of Mr E and the children.

Discussion and findings

1. Counsel for the father, Mr Harley, submitted that the only evidence which could establish a contravention of paragraph 2 of the order of 16 December 2015 on the 26 January 2016 was the allegation made by Mr E that the father had, in the presence of the children, referred to the mother as a “Fucking bitch” who was “nothing but fucking trouble”.

2. The mother conceded that the statements allegedly made by the father on 26 January 2016 were not made in her presence or directed at her personally.  She claimed the remarks were made in front of the children.

3. On behalf of the father it was maintained that the father’s evidence denying any statement of referring to a “Fucking bitch” or “Fucking trouble” in front of the children should be preferred to that of Mr E.  This was partly based upon allegations that Mr E’s evidence was evasive or inconsistent, particularly concerning his denial of his knowledge that he was taking photographs of the children and the father.

4. It was also maintained on behalf of the father that even if the Court found that the father had made those remarks in the presence of the children that this does not necessarily establish a breach of paragraph 2(c).

1. The evidence clearly establishes that there was a confrontation between the father and the witness Mr E which resulted in the police being involved.

2. The mother maintained that the evidence of Mr E should be preferred.  She maintained that she and Mr E were not stalking the father and the children and that the father’s evidence should not be considered reliable.

3. The evidence of Mr E, both in the statutory declaration and his oral evidence, refers to seeing the father with the children at the B Park event and taking photographs of the children.  Paragraph 4 of the statutory declaration refers to the father talking to Mr E and saying “I believe you know these and pointed towards the children”.  That part of the statutory declaration does not establish however that the children did hear the following alleged remarks by the father about the mother in which he called her a “Fucking bitch” and “nothing but fucking trouble”. 

4. During the cross-examination by counsel for the father, Mr E was asked to clarify the place at which the father had told him to stop taking photos of the children.  The evidence indicated that around the time Mr E was talking to the celebrity, [Mr F], the altercation with the father took place.  In that part of the evidence Mr E says that when he was talking to [Mr F], he saw the father and the children walking towards him.  As earlier indicated he later confirmed in his evidence when questioned by me that his statutory declaration was correct when asserting that the father had called the mother a “Fucking bitch” and that she was “nothing but fucking trouble”.  There was no further evidence concerning the whereabouts of the children when those statements were made.

5. In order for there to be a breach of paragraph 2 of the order of 16 December 2015 it would be necessary to establish not only that the offensive remarks were made about the mother, but that they were made in circumstances where the Court can draw the conclusion that the children heard those remarks and thereby the father could be said to have encouraged the children to denigrate the mother themselves or to behave disrespectfully towards the other parent by following the bad example of the father.

6. The evidence however does not establish on the balance of probabilities that the children, or any of them, were close enough to the father at the time the remarks were made for the children to have heard those remarks.

Conclusion

1. Taking into account all of the evidence about the events on 26 January 2016 the Court is unable to find that the mother has established on the balance of probabilities that on 26 January 2016 during the altercation with Mr E the father made the offensive remarks which were heard by the children.  The Court is therefore unable to find on the balance of probabilities that the father has on that date breached the order which restrains him from encouraging any of the children to abuse, criticise or denigrate the mother or behave disrespectfully towards her.

2. The contravention is therefore not established.

3. The Court will list the matter for submissions concerning the orders, if any, sought pursuant to the provisions of subdivision B and subdivision C of Division 13A of Part VII of the Act.

I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 4 May 2016.

Associate: 

Date:  4 May 2016