Harris & Duerr

[2021] FamCA 412

FAMILY COURT OF AUSTRALIA

Harris & Duerr [2021] FamCA 412

File number(s):	BRC 7472 of 2011
Judgment of:	BAUMANN J
Date of judgment:	24 June 2021
Catchwords:	FAMILY LAW – CONTRAVENTION – Application dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 70NAA, 70NAC, 70NAE
Cases cited:	Rice & Asplund (1979) FLC 90-725
Number of paragraphs:	28
Date of hearing:	4 June 2021
Place:	Brisbane
Counsel for the Applicant:	Self-represented
Counsel for the Respondent:	Self-represented

ORDERS

BRC 7472 of 2011

BETWEEN:

MR HARRIS
Applicant

AND:

MS DUERR

Respondent

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	24 JUNE 2021

THE COURT ORDERS ON A FINAL BASIS:

1.That the Application – Contravention filed 16 February 2021 is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Harris & Duerr has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

INTRODUCTION

1. The contravention application filed by the Applicant father, Mr Harris on 16 February 2021 charging the Respondent mother, Ms Duerr, is the current most recent litigation involving parents who separated in August 2011, and who have been in conflict about their two children L born in 2004 (now 17 years) and N born in 2007 (soon to turn 14 years).  There was a final hearing before the Forrest J as he then was, resulting in a Judgment in March 2014, which provided in respect of N that he was not permitted to relocate to Germany, as the mother sought, but that he was to live with the mother in Brisbane and was to spend time with the father as prescribed.

2. Subsequent proceedings were brought and were dealt with by Judge Egan of the Federal Circuit Court of Australia in May 2018.  A further application by the father to vary those Orders filed 26 February 2019, which was dealt with by Judge Jarrett of the Federal Circuit Court of Australia on 18 March 2019.  That fresh application, having passed the threshold under Rice & Asplund (1979) FLC 90-725 was transferred to the Family Court of Australia. A number of other contravention applications and contempt applications were filed once the matter had come to the Family Court of Australia. However, relevantly, on 25 October 2019 Hogan J made final Orders by consent (“the final Orders”) which for the sake of clarity are Appendix One to these Reasons.

   CONTRAVENTION APPLICATION

3. The contravention application filed by the father on 16 February 2021 charges the mother with breaches, essentially of order 11 of the final Orders.  The father is unrepresented.  Although the counts prescribed in the contravention application are a mixture of charge and summary, with both parties being unrepresented, and with the view to having the matter finalised, the counts put to the mother that were able to proceed were put to her as required by prescribed process under the rules.  They were marked as count 1, 2 and 3 as follows:

   (a)Count 1:  29 May 2020:

   The Queensland Police Services (Suburb H Station) called me regards an incident involving the respondent and “L” and a domestic violence matter having unfolded within the respondent’s household requiring police intervention and their making a referral to J Services for mediation.  The call was an attempt to reach the respondent and only by mistake was made to me which once again brought this incident to my attention for the first time – the respondent failed in her obligation to share information especially of this serious nature of anytime previous, she also refuses to disclose any details of this matter at all since.

   (As per original)

   (b)Count 2:  8 February 2021:

   The respondent has not consulted with nor advised the Applicant as to “N” being a missing person since the 7^th February, his being a 13 year old boy and concerns as to his safety considering his not having arrived at her residence and whereabout being unknown throughout the night and next day.

   (As per original)

   (c)Count 3:  9 February 2021:

   The Office of the Director of Public Prosecutions called me regards an incident concerning a knife attack and “L” having been in some way involved in the matter and requiring his engagement in “restorative justice”.  The call was an attempt to reach “L” and only by mistake was made to myself and so brought this information to my attention for the first time.  The respondent failed in her obligation to share information especially of this clearly serious nature at anytime previous and continues to refuse to disclose details of it.

   (As per original)

   (d)Count 4:  15 January 2021:

   The respondent has not consulted with nor advised the Applicant as to “L” being a missing person since the 30^th of December 2020, nor any details of the cause or apparent incident as to his supposed intent in severing ties with her.  His whereabouts and wellbeing are unknown still, the respondent refuses to provide any information regards this matter.  The respondent only mentioned that L had “left the home” yet two weeks after the fact and refuses to answer any enquiries I’ve made as to his safety and wellbeing which include concerns as to mental health which he’d received professional treatment for.

   (As per original)

4. For oral reasons delivered, the Court formed the view and found that proposed count 5 could not be a contravention of the final Orders.  I say nothing more about that in these written Reasons other than to identify the count as asserted by the father in these terms:

   From the start of September 2020 and continuing onto the present the respondent refuses to remove N from the household of his school classmate’s mother, one Ms G.  This individual is well known by police as a criminal, drug dealer and addict and for abusive behaviour.  The respondent has been made aware multiple times over by the applicant that Ms G was psychologically abusive and manipulative of N in constant denigration of the father.  Ms G has made baseless and disturbing claims that the applicant was “sexually grooming” N.  On other occasions Ms G has yelled and abused the father, screaming at him that N could do “whatever the fuck he wants”, she has made physical threats toward the father and promises, misleading N, that she’d “adopt” him and was already his “legal guardian” and so could not “legally return” him to my care.  Whilst the respondent has been made aware of this – she has refused to remove N from Ms G’s presence, and instead presently condones his returning to her (even as recently as the 7^th of February 2021, to my knowledge).

   (As per original)

5. The gravamen of the father’s concern is that in some way the mother allowed the child to remain in the care of a Ms G who had been denigrating the father, and that in some way this was a breach of the Orders of the Court.  It clearly could not have been a breach.  I described it as a nonsense, and I struck it out.

   PRINCIPLES TO BE APPLIED

6. Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) is headed “Consequences of failure to comply with orders, and other obligations, that affect children”. The word “contravention” is introduced in the Division in s 70NAA(3), which says:

   (3)      The other orders that the court can make depend on whether:

   (a)a contravention is alleged to have occurred but is not established (Subdivision C); or

   (b)the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or

   (c)the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).

7. Section 70NAC sets out the meaning of “contravened an order”. It provides:

   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; 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.

8. Section 70NAE provides prescribed interpretations for the meaning of reasonable excuse for contravening an order.

   CONTEXTUAL EVIDENCE

9. It is apparent that these two boys have been the subject of significant conflict between the parents.  The mother did not wish to cross-examine the father and as a result I have no basis upon which I could assess the father in the witness box.  She indicated she could not cross-examine the father as he made her feel uncomfortable.  She indicated she had not read the affidavit in support of the contravention application filed by the father 16 February 2021.  It is fair to say that a great deal of the father’s affidavit is content which is more by way of submission – irrelevant to the charges that have been brought – and a further reflection of the ongoing conflict between the parents which has ensued since, as I say, separation between them in August 2011.

10. However, the mother did give evidence as to her plea that she had not contravened the orders as alleged by the father and/or had reasonable excuse for not complying with the Order.  What emerges from the evidence are the following facts set out hereafter, which I find to be based on the evidence.

11. After the orders of Hogan J were made, L continued to live with the mother (pursuant to Order 2) and N continued to live with the father (pursuant to Order 3).  At least by some time around May 2020 L was involved in an incident that involved his peers and police interaction.  The mother says she first became aware of L’s involvement with police around May 2020.  She says that her belief was that the father was also aware of L’s involvement with police, because her understanding was the police had contacted him.  I have no probative evidence in relation to police investigations about any event from L (for example Queensland Police records).

12. Whether or not he was to be charged or was as the mother asserts, merely a witness to an event that involved a knife (obviously a serious matter), the Court cannot make a finding about because of lack of probative evidence before me.  Nonetheless, it does seem clear that L’s behaviour was becoming problematic at this time, and I infer the relationship between the mother and L was becoming more difficult.  The mother gives evidence that she did have a dispute with L after Christmas 2020.  She had not, before giving evidence to this Court, given the father details of the nature of the dispute.

13. However, when asked by the Court to provided details on oath she indicated that the nature of the dispute was that L had received $200 from the mother’s parents.  L had informed her he wanted to use the funds to have a tattoo and to buy marijuana.  The mother says she had a dispute with L about his intentions (despite having used some of the money to buy a present) and that the dispute resulted in what she described to be a “teenage tantrum”.  The mother says that L left her home on or about 30 December 2020, and that she emailed the father on 15 January 2021 (see Exhibit 1) informing him that L had left the home.

14. The mother says, and I accept, that she has had no contact with L, sadly, either for his birthday (when this matter was actually before the Court and being heard) or since 23 February 2021.  She is uncertain where L is now living, although she believes he is “couch surfing” with a friend.  Her usual form of communication with L was by text message.  The mother suggests that the reason why L has failed to communicate with her is that she had told L on or about 22 February 2021 that N, his younger brother, was intending to live with her now having left the father’s care in August 2020.

15. N, the younger brother, has also struck difficulties.  It is agreed that N left the father’s care where he was required to reside under the final Orders in August 2020.  The father, from the bar table, indicated that he was aware that N was dealing with issues including use of drugs and other antisocial behaviour.  It appears, not surprisingly, that N’s youth worker from the Department of Children, Youth Justice and Multicultural Affairs (“the Department”) contacted, at least, the mother (and I infer the father) to make them aware that N had selected to live with the family of a school friend of which Ms G was the mother.

16. Whilst the father makes a number of criticisms about Ms G, including the mother’s “selection” of Ms G as the carer of N, there is no evidence from Ms G to refute the father’s allegations, and in my view no evidence to suggest that the mother selected Ms G or her family at all.  It seems more likely than not that the child – having for reasons not fully understood by the Court at this stage – elected to leave the father’s care (who was entitled to be the resident parent under the Orders), chose a school friends family, and since August 2020 has been spending more time with the mother.  The mother described this as “transitioning” into her care.

17. The fact that N was spending time with the mother was particularly and totally consistent with Order 6 of the final Orders.  The mother says that N has begun living with her since approximately 22 February 2021.  There is no evidence before the Court as to what steps the father has taken with a view to recovering N from either the mother and/or Ms G since August 2020.  From the bar table the unrepresented father made it clear that he had received advice that to do so may not result in a happy outcome, and that he has worked closely with the Department and police to try and keep informed as to N’s progress.

18. I have no doubt that both these parents are concerned parents who love their children.  It also seems apparent from the evidence before me that both of them have not fully appreciated the extent to which the conflict between them may have contributed to the vulnerability of both L and N.  Based on this evidence, moving to a determination of the four counts, I note that the mother has filed recently some form of Initiating Application to vary the current Orders.  That matter was not before me today and as a result I have not dealt with it.

    Count 1

19. The essence of count 1 is the father’s allegation that the mother had an obligation under Order 11 to inform him on 29 May 2020 about an incident which she knew about and which, as he claims in count 1, he first became aware of when contacted by police.  There is no evidence that, as the father asserts, the incident involved “a domestic violence matter having unfolded within the respondent’s household requiring police intervention and their making a referral to J Services for mediation”.  The mother denied that to be the case.  There is no evidence from police to assist me.  I accept the mother’s evidence about the incident.  In response, the mother said she did inform the father and had discussions with him about this incident and that the father was well aware of it and knew that L was a witness.  In the circumstances, I find that the mother did not breach Order 11 because she had a reasonable excuse, namely, that she was aware the father was aware of the incident and had discussed it with the father.

    Count 2

20. The father’s complaint and the subject of the charge is that N had become a missing person “since 7 February”.  However, that charge fails to take into account the context, namely, that under the orders of Hogan J, N was to live with the father.  Secondly, the father, I am satisfied, knew N had left his care and had apparently self-selected with, at least, some support from the Department to live with in the home of Ms G.  The mother says that, from that point, the child transitioned between her home and the home of the G Family before, on her evidence, he began living again with her on or about 22 February 2021.  I accept the mother’s evidence.  The father says he was in constant contact with the Department.  As to the suggestion that the child was “missing”, in the circumstances of this case, where the father was well aware of the child not living in his home and having taken no action formally to recover the child into his care, I am not satisfied that the mother has breached the Order, as alleged.  If I was found to be wrong in that respect then, in my view, the mother, having informed the father as she says, and I accept, quickly after the child went “missing” that he was no longer missing and in her care, is a reasonable excuse.

    Count 3

21. Whether or not this count, said to have been breached on 9 February 2021, is or is not involved with the incident referred to in count 1, is a little unclear.  My understanding of the father’s submissions to the Court is that the Office of the Director of Public Prosecutions called him regarding an incident involving a knife attack and L “having been in some way involved in the matter” and required “his engagement in ‘restorative justice’”.  The mother says that she gave the father notice of this incident.  I accept her evidence which is dealt with above when discussing count 1.  I accept that any criminal proceedings involving a child (and L, at the time, was still under the age of 18 and therefore a “child”) is a matter that parents would be concerned about; would wish to be informed about and which is a matter they may desire to deal and assist police with.  I am satisfied that the mother, if she did not inform the father immediately, had informed the father at about the time of the incident and that, as a result, she did not contravene the Order.  If I am found wrong in respect of that, I would find that she has a reasonable excuse in view of the earlier statements made by her to the father.

    Count 4

22. This count concerns an allegation by the father that the mother had failed to consult with or advise him as to L “being a missing person since the 30^th of December 2020, nor any details of the cause or apparent incident as to his supposed intent in severing ties with her.”  Whilst I do accept that any parent would be concerned by a child leaving the home where he was primarily residing, the evidence is that the mother did inform the father by email on 15 January 2021 informing him of the fact that L had had an argument with her.  The father complains that the Orders, by inference (because the Orders make no such express provision), required the mother to give him details of what was the dispute between her and L.  The Orders provide no such obligation on the mother.

23. It is also arguable that Order 11 was essentially directed towards any serious illness, accident or emergency involving the children that included them being required to attend a hospital or health professional.  Whilst the father, I accept, is concerned about L (and I also accept the mother holds similar concerns), when a child of over 16 years of age known to the Department chooses, as it seems obvious, to escape the ongoing conflict that has engulfed his life for most of his life in the way he has, then it is, in my view, possible but not certain to conclude that he may have at the time been suffering a mental health issue.

24. However, the mother is not qualified to diagnose whether he had a mental health issue.  I infer that the father is estranged from L, and whilst he requires the mother to inform him if she knows information about L, that is not what Order 11 requires her to do.  The mother says that when L became aware that N was returning to her, L was unhappy with that and that is when contact between her and L ceased.  Up until that stage, contact was essentially by text message.  In the circumstances, I am not satisfied that the mother has contravened Order 11 as charged by count 4.  If I were found to be wrong in that respect, I would find that the mother had a reasonable excuse in the circumstances for not informing the father immediately on 30 December 2020 that the child L had left her care.

    CONCLUSION

1. The result of the findings made above is that I am compelled to order that the contravention application filed 16 February 2021 be dismissed.

2. When I invited the parents to indicate if there was anything further they wished to say after the evidence had completed, the father made a statement, which I regarded as genuine, that he is interested foremost in getting information from the mother about both children because he is concerned and wishes to be continually informed about their health and welfare.  His plea is that the mother keep him informed.  I must say, it does appear, although these parties clearly had ineffective communication, that there has been a constant stream of information passing but not, I would say, necessarily under Order 11, and not always immediate.

3. The mother, when the father made his statement, began to indicate that the manner in which the father seeks information from her is harassing and I infer, from her perspective, aggressive, but I indicated that was not a matter I was prepared to engage in discussion with the parties.

4. I made the observation to the parents that there have been numerous judicial officers (be they Judges or Registrars) who have been involved in the litigation around these two children over the years.  I hold no confidence that anything I did or said during the contravention hearing has quelled the ongoing conflict.  All I can really say is that this is a case where the high conflict between parents that has continued to engulf the lives of these two boys, who I note were aged approximately seven years and four years at final separation, has manifested in behavioural issues and/or antisocial or difficult behaviour to which both parents should, realistically, consider they have contributed.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:

Dated:       24 June 2021

APPENDIX ONE

1.All previous parenting orders are discharged.

Living arrangements

2.The child L, born … 2004 live with the mother who has sole parental responsibility for him.

3.The child N, born … 2007 live with the father who has sole parental responsibility for him.

4.In the exercise of their sole parental responsibility each parent must, before any decision is made about changes to the child’s residence or school or about a major health issue consult with the other parent by advising them of the decision to be made, providing an opportunity for the other parent to advise their view acknowledge and take any such view into proper consideration before making the decision.   The decision is thereafter to be communicated to the other parent once it is made.

5.L spend time and communicate with the father at all times and by any method agreed between L and the father.

6.N spend time and communicate with the mother at all times and by any method agreed between N and the mother.

Communication

7.Both children be provided with a mobile telephone which is to remain with the child no matter in which household he is at any time. 

8.Neither parent will send any message to either child’s mobile that is intended for the other parent.

9.The parents will communicate by email other than in an urgent situation when they shall communicate by SMS message.  If a parent determines that SMS message is not appropriate they must advise the other parent of an alternative method by which they can communicate.

10.Neither parent will denigrate, insult, abuse or criticise the other parent in the presence or hearing of the children and will do all things necessary to remove the boys from the presence of any other person who might do so.

Information sharing

11.Both parents will advise the other, as soon as practicable, of any serious illness, accident or emergency involving the children or either of them and of the hospital or health professional treating the child and this order authorises both parents to obtain information from any hospital or health professional about the child’s diagnosis, prognosis and treatment.

12.Both parents must keep the other advised at all times of:

(a)the child’s school

(b)the name of the child’s treating general medical practitioner including the name and the details of the medical practice;

(c)the name and contact details for any health practitioner treating the child;

(d)any appointments the child has to attend any specialist medical or health professional

13.Both parents are authorised by this order to obtain information and reports, about the child from any school, doctor or other health professional treating the child that the school or health practitioner is able to provide with the cost of such information or reports to be paid by the parent making the request.

Overseas travel

14.The children will each hold at all times both a German and an Australian passport.  The parent with whom the children is living will hold the child’s passport and will be responsible for ensuring the passports are renewed not less than six (6) months prior to the expiration.

15.The children are permitted to travel outside the Commonwealth of Australia at any time as follows:

(a)the parent intending to travel with the children provide at least 1 months’ notice of their intention to travel to the other parent

(b)the parent travelling provides a copy of the return tickets and information about where the child/ren will be staying for the majority of the time to the other parent.

(c)in the event of a family emergency the notice period required by Order 15(a) will waived.

Counselling

16.The mother will, within three (3) months of the date of these orders, take all steps necessary to ensure that L is able to attend personal counselling pursuant to a mental health plan.