Hayward and Linares

[2019] FCCA 2379

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAYWARD & LINARES [2019] FCCA 2379

Catchwords:
FAMILY LAW – Parenting – Contravention – where in late 2018 the mother ceased making the children available to spend time with the father and filed an application to change the existing orders – where the father responded by filing contravention applications – where the mother relied on reasonable excuse – where the mother said that the father’s conduct and the content of letters he sent to the children had caused her to be fearful that he had an unhealthy obsession with the children and may be grooming them for something more sinister and that she acted to protect their health and safety – where the content of the letters and the father’s behaviour did justify the mother’s immediate response of withholding the children – whether it was sufficient for the mother to simply file an application to vary the orders and do nothing else – where this was a reasonable course of action given the mother’s expectation that it would result in a full inquiry into the matter – where nothing has happened since late 2018 which suggests that the mother should have reconsidered her position – reasonable excuse made out and applications for contravention dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.70NAE, 70NAF, 70NDB, 70NDC

Applicant: MR HAYWARD

Respondent: MS LINARES

File Number: NCC 1545 of 2018

Judgment of: Judge Terry

Hearing dates: 9 May & 19 July 2019

Date of Last Submission: 19 July 2019

Delivered at: Newcastle

Delivered on: 29 August 2019

REPRESENTATION

Counsel for the Applicant: Mr Kelly

Solicitors for the Applicant: Duncan Maclean & Associates

Counsel for the Respondent: Mr Curtis

Solicitors for the Respondent: Wordsworth Lawyers

ORDERS

1. The father’s applications for contravention filed on 8 February 2019 are dismissed.

2. Consideration of whether the court should make an order pursuant to s.70NDB or 70NDC of the Family Law Act is adjourned to 2.15pm on 19 September 2019.

3. The mother’s Initiating Application filed on 18 December 2018 and the father’s Response filed on 14 February 2019 are adjourned to 2.15pm on 19 September 2019 for further consideration.

4. The parties have liberty to attend by telephone on 19 September 2019.

5. The parties and their legal representatives can take part in the … telephone link by:

   Dialling the free call number ….

   When prompted dial in the Guest Code Number …

   Waiting on the line until the court dials in as “the moderator”.

   Please ensure you have dialled in several minutes prior to the listing time.

IT IS NOTED that publication of this judgment under the pseudonym Hayward & Linares is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1545 of 2018

MR HAYWARD

Applicant

And

MS LINARES

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 8 February 2019 Mr Hayward (“the father”) filed two contravention applications. He alleged that:

   i)On 14 December 2018 at 8.45am the mother failed to make Y available at Town B School (the School) in contravention of Order 3(a) (i) of the orders dated 13 July 2018.

   ii)On 22 December 2018 at 10.00am the mother failed to make the children available at Town B Playground in contravention of Order 3(e) (i) of the orders and without reasonable excuse.

2. During closing submissions the father’s counsel said that there were three contravention applications on foot, the third apparently relating to the mother failing to make the children available on 12 December 2018. However there are only two contravention applications on the court file, the affidavit by the father’s solicitor filed on 14 February 2019 refers to only two applications and the mother in her affidavit filed on 6 May 2019 also refers to only two applications.

3. The mother admits that she failed to make the children available on the dates in question. The issue I need to determine is whether she had a reasonable excuse for doing so.

Background

1. The mother and father married in 2007 and separated on 7 May 2016. They have two children, X born on … 2011 and Y born on … 2013.

2. X and Y were four and two when the parties separated and after separation they lived with their mother and spent time with their father by agreement between the parties.

3. On 21 May 2018 the father filed an application for parenting orders. The mother filed a response but on the first return date of 13 July 2018 the parties reached agreement and orders were made by consent. The orders provided for:

   ·The parties to have equal shared parental responsibility.

   ·The children to live with the mother.

   ·The children to spend time with the father each alternate weekend from Friday to Monday and each alternate week from the conclusion of school on Thursday until the commencement of school on Friday. There was also provision for them to spend block time with him during the school holidays.

4. The orders were initially complied with but toward the end of the year the mother ceased complying with them and the children ceased to spend time with the father. There was a dispute during the hearing about when time ceased but on my reading of the material the orders were followed up to and including 23 November 2018.

5. On 6 December 2018 the mother sent the father a text message stating that she intended to keep the children in her care until further notice due to certain alleged risks.  

6. On 13 December 2018 the mother caused her solicitors to send a letter to the father’s solicitors expressing concern that the father had been engaging in grooming and/or sexualised behaviour toward the children  and saying that she would only agree to supervised visits at the contact centre.

7. On 18 December 2018 the mother filed an initiating application seeking that the July 2018 orders be discharged, that she have sole parental responsibility and that the children live with her and spend supervised time with the father.

8. In her supporting affidavit the mother reiterated that she was concerned that the father was engaging in sexualised conduct and grooming the children. She provided information about a number of specific incidents which had given rise to that concern. She also made some additional complaints about the father’s behaviour.

9. The mother’s application was given a first return date of 15 February 2019.

10. On 8 February 2019 the father filed two contravention applications. His solicitor had sent these applications to the court in late December 2018 but they had not been accepted for filing because of issues with form. Due to holidays and pressure of work the father’s solicitor did not immediately deal with those issues and the applications were not accepted for filing until 8 February 2019.

11. The contravention applications were also listed on 15 February 2019.

12. On 14 February 2019 the father filed a Response to the mother’s initiating application. He did not seek dismissal of the application with the effect that the existing orders would continue, rather he sought an order for week about shared care. Therefore no matter what the outcome of the contravention applications the parties seem destined for another round of litigation.

13. When the matter came before me on 15 February 2019 the father was not willing to abandon the contravention applications and focus on the substantive dispute. He was insistent that the contravention applications be heard and I listed them for hearing on 9 May 2019 in Town B. Unfortunately the hearing could not be completed that day and was adjourned to 19 July 2019 in Town E when it was completed.

14. I made an order on 15 February 2019 suspending the existing orders for the children to spend time with the father until further order. This is not uncommonly done so that the court is not faced with further contravention applications and so that children are not caught in an invidious situation because one parent attempts to forcefully ensure compliance with the orders and the other attempts to forcefully prevent it.

15. The father has however been seeing the children; he has been spending supervised time with them at Town B Children's Contact Centre since 2 March 2019.

The applicable law

1. The onus is on the mother to prove that she had a reasonable excuse for contravening the orders and pursuant to s. 70NAF (2) of the Family Law Act the standard of proof to be applied is proof on the balance of probabilities.

2. The term “reasonable excuse for contravening an order” is defined in s. 70NAE of the Family Law Act. The definition is inclusive rather than exclusive but there was no dispute that the mother was relying on s.70NAE(5) which provides as follows:

   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 the 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).

The hearing

1. The mother admitted the contraventions and said that she had a reasonable excuse. She had made her reasons for failing to comply with orders clear in the affidavit she filed on 18 December 2018 and the hearing proceeded by way of the father giving evidence first and then the mother giving evidence.

2. However to explain my decision it is convenient to begin with the mother’s evidence and then consider the father’s evidence.

The mother’s evidence

1. The mother relied on her affidavits filed on 18 December 2018 and 6 May 2019.

2. The mother said that she had become increasingly concerned over time that the father was reliant on the girls for emotional support and physical affection and had fears about where this may lead. She said that:

   I am concerned that Mr Hayward has developed an unhealthy infatuation with his daughters and has blurred the line between a normal and healthy parent-child relationship with an intimate romantic and obsessive relationship.[1]

   [1] Mother’s affidavit paragraph 37

3. She said that she was concerned that the father was grooming the girls for something more sinister.

4. To explain her concerns the mother referred to a number of matters and the first was the content of two letters the father sent the girls.

5. The letter to Y was sent at the time of her birthday in … 2018. It contained extravagant praise of Y’s appearance and included the following:

   I adore it when come and give me a morning kiss and nose wiggle in the shower when I’m up before you.

   ………………

   I really love it when you sit on my lap and cuddle me at the movies and when we watch movies at home. I love it too when you (& X) pull my hand onto your leg or belly.[2]

   [2] Mother’s affidavit filed 18 December 2018 annexure A

6. The letter to X was sent in August 2018 but my recollection of the mother’s evidence was that the letters were put into the girls bags by the father and she did not read the letter to X until … 2018.

7. The letter to X also contained extravagant praise of X’s appearance and toward the end included the following:

   And I love how you’ve recently started playing with my hair and scalp. It’s something mummy used to do and it feels so nice. You’re an absolute gem and so loving…thank you

8. The letters are lengthy and the mother expressed the view that they read like love letters.

9. Another incident which concerned the mother was that on 21 August 2018 she arrived home to find two boxes of flowers at the front door which the father had sent for X and Y. The father attached notes to the flowers. Some of the words on X’s card are obscured in the photo copy attached to the mother’s affidavit but otherwise it says:

   Dearest X

   …bunches of flowers is because …didn’t think of this celebration…..you when you were such a cutie…Town B Church and going to Kindie come …try days. Love you honey xxoo

10. Y’s card read:

    I hope you had a most wonderful and fun time at big school today. I’m so proud of you and love you so very much. I hope you celebrate in your beautiful little heart with these celebration flowers. I love you and I’ll see on your 3^rd day – Thursday – Love Daddy xxoo

11. Another issue of concern raised by the mother was the extent to which the father was intruding into the children’s activities. She was particularly concerned about the amount of time he was spending at X’s school. She said that he was going there about three times a week. She said that the Principal told her in September 2018 that he had spoken to the father a number of times about his frequent presence at the school as well as his behaviour and said that he had expressed concern about the father coming to the school and having his lunch with X and her friends and interacting with them.

12. Another incident which concerned the mother occurred on 22 September 2018. The mother picked the children up from the father and he said goodbye to the girls. As the mother and girls were walking to their car the father shouted “Sexy X” across the car park.

13. The mother said that this made her feel shocked, sick and disgusted. She later messaged the father to say that this was inappropriate and he responded that it was a slip of the tongue.

14. The mother said that she had other issues with the orders such as Y being inconsolable when she picked her up on 4 October 2018 after she had spent a week with the father saying that she had wanted to come home and had wanted to ring the mother and the father wouldn’t let her; issues arising out of the father having become very religious including Y questioning her about whether she believed in God and telling her that Mum and Dads should live together; Y telling her that Daddy said that the mother didn’t love him anymore and that it made Y cry.

15. In cross-examination the mother agreed that after her concerns were aroused she had not made any notification to FACS and had not gone to the police. She agreed that she had not stopped time until about two months after the last incident referred to above. However she said that she had discussed the situation with her GP and her psychologist Ms C and had agonised over what to do. She said and I accept that she asked the psychologist to read the letters and tell her what she thought as she was very anxious about over-reacting.

16. During cross examination the mother said as follows:

    It was quite overwhelming. It took me a while to put an accumulation of events which had happened over a long period of time together and once I did I looked at what I had to do about it. In the middle of that I had a major operation and then I took action and did what I needed to do to keep the girls safe.

17. The mother also said as follows:

    I had concerns from 2017 abut infatuation and obsessive behaviour but I was terrified of the father’s reaction if I told him.

18. There is corroboration for this in an email dated November 27 2017 which the mother sent to the school which begins “I don’t come in here lightly” and includes the following:

    Generally and for lack of better description, Mr Hayward seems to have an obsession with his daughters and children. He is overly affectionate with them and pursues them for attention, kisses and cuddles. I am concerned that Mr Hayward is manipulating the children/burdening them emotionally.[3]

    [3] Mother’s affidavit filed 8 May 2019 Annexure F

19. The mother was asked why she had not considered mediation as an option rather than just ceasing time. She said that her concerns were longstanding and escalating and that she did not believe that mediation would help.

20. The mother said that she believed that filing an application in the court was an appropriate response as it would result in an investigation taking place.

21. In her affidavit filed on 8 May 2019 the mother gave reasons for why the explanations the father gave for his behaviour in his affidavits and a reading of the affidavits of his witnesses Mr D and Ms A did not alleviate her concerns about the nature of the father’s relationship with the children.

The father’s evidence

1. The father relied on his affidavits filed on 8 February 2019 in support of his contravention applications and his affidavit filed on 14 February 2019. He also relied on the affidavits of his pastor Mr D and the paternal grandmother Ms A filed on 14 February 2019.

2. The father agreed that he had sent the letters to the girls. He said that it stemmed from him attending a course called “Good to Great Fatherhood” in 2016 where he was encouraged to write letters of appreciation to members of his family.

3. The father said that he had written six letters in all including one on each of the girls birthdays in 2017 and that the mother had chosen to pick out three sentences in the most recent letters to condemn him. He produced copies of five letters in support of this assertion. He said that he did not have a copy of the other letter.

4. Referring to one of passages the mother had selected, the father acknowledged that Y had come into the bathroom and that he had given her a kiss or a nose wiggle. In his 14 February 2019 affidavit he seemed at first to be referring to a single occasion but later he seemed to imply that it had happened more than once and had involved both children. He said as follows:

   This type of thing happens on occasions, I don’t encourage it, but I don’t make out that the children are in trouble if they do it.

   I am also sure to conceal my genital region as I bend forward out of the shower to give a quick good morning kiss and nose wiggle.[4]

   [4] Father’s affidavit filed 14 February 2019 paragraphs 31 and 32

5. The father said that Y was around four when “this” happened and the children did this type of thing when the parties lived together.

6. During cross-examination the father said that Y had come into the bathroom and opened the shower door and that he had given her a brief “lip kiss” or peck on the lips and a nose wiggle. He estimated that it had happened more than once and less than five times.

7. The father was asked if there was a lock on the bathroom door and he said that there was and that he used it more wisely now. He said that a friend had counselled him that once children were of school age he should not allow them to come into the bathroom when he was showering.  

8. Referring to the passage in the letters about him touching the children the father said that the children sat on his lap and cuddled him when they watched movies and that they would take his hand and put it around them to ensure he cuddled them tight. He did not directly refer to the comment in the letter to X about the children placing his hand on their leg and belly.

9. The father said that the comment in his letter to Y that she had recently started playing with his hair and scalp as mummy used to do could seem sinister but it was intended to convey to Y that there had been nice things in his relationship with her mother, something the Fatherhood course had encouraged him to do. He denied that it was meant to be sexual.

10. The father said that sending flowers to the children also came from his Fatherhood course. He said that he felt that sending the children tangible reminders of his love and respect was important.

11. The father admitted that he called out “sexy X”. By way of explanation he said that he had purchased the girls some “crazy socks” and they were wearing them on this occasion and were proud of them and that this prompted his comment. He said that he had meant to say something like “You look cool” but it came out wrong.

12. The father said that following the mother contacting him and telling him that this behaviour was inappropriate he sat down with X and apologised to her for his comment.

1. The father said that there was nothing out of the ordinary in his attendance at X’s school even at lunchtime or recess. He said that the school welcomed his attendance for canteen duties and for assistance in the classroom and that he was simply trying to be an involved father.

2. He agreed that the school had spoken to him about sitting in the playground with X but said that they had suggested that if he wanted to have lunch with her he could take her from the school grounds and have lunch with her elsewhere.

3. The father said that the mother’s assertions that he was relying on his daughters for emotional support was wrong and that he had commenced a new relationship on … 2018. The father said that he was taking anti-depressants but otherwise had no mental health issues.

4. The father admitted that he had become religious since he and the mother separated and told the children bible stories and admitted that they prayed with him and that he had suggested that they pray for mummy but he denied that there was anything inappropriate about this behaviour.

5. The father’s case was that the mother had always been controlling about his time with the children and that she had commenced withholding them not because she was concerned about their welfare but because she wanted him out of their lives.

6. Mr D confirmed in his affidavit that the father had attended the Fatherhood course. He expressed the view that the father was naïve and honest with his emotions. He said that he had read the letters to the girls and the part of the letter to Y which referred to her coming into the bathroom concerned him when he read it but he accepted the father’s explanation that this was something which happened when the mother and father were together.

7. He said that the comment the father made about loving it when the girls ruffled his hair like mummy could seem sinister but he accepted the father’s explanation that he was just trying to demonstrate to the girls that the parents had once loved each other.

8. He said that he accepted the father’s explanation that the comment about loving it when the children put his hand on their leg or belly was innocuous and that father was just describing children liking cuddles. He expressed the opinion that the father’s overwhelming desire to help fathers improve their relationships with their daughters has caused him to go overboard with the exercises he had learned in the Fatherhood course.

9. The paternal grandmother said that she had read the letters the mother referred to and could see how people could misinterpret some of the things the father had said. However she said that she had never witnessed any sexualised behaviour by the father. She said that the father had made a point of telling X that she was too old for him to bathe her and had asked the paternal grandmother to deal with the issue when X complained of a sore vagina.

The submissions by the father’s counsel

1. The father’s counsel submitted that nothing had occurred since the consent orders were made which gave the mother a reasonable basis for concluding that the children’s health and safety required her to withhold them from spending time with the father, indeed it was his case that the mother did not really have concerns at all but was just out to exclude the father from the children’s lives. 

2. He said that the mother’s bona fides should be questioned because she did not make a report to police, she did not ask the Department of Family and Children’s Services (FACS) to investigate and she did not promptly take action after the “Sexy X” incident on 4 October 2018. Instead she allowed the children to continue to spend time with the father until for some reason not explained by anything which happened immediately before she sent the father a text message on 6 December 2018 saying that she was not going to allow the children to spend time with him.

3. He submitted that her bona fides also had to be open to question because she had simply withheld the children and done nothing else. She could have tried to organise mediation, or she could have asked the father to undergo an assessment by a psychologist or a psychiatrist. He submitted that it was not enough for the mother to simply file an application and place the matter in the hands of the court.

4. He also submitted that the mother could not establish that she had withheld the children for no longer than was necessary. My understanding of this submission is that it was his case that the evidence from the father and his witnesses explained everything and placed things in a different light and that once that evidence was out there the mother should have reconsidered her position.

Discussion

1. The accumulation of matters the mother raised (the father’s comments in the letters, the father attending frequently at school including sitting in the playground at lunchtime or recess with X and the father sending the flowers to the girls and calling X “Sexy X”) do objectively give rise to concern about the nature of the father’s relationship with or interest in the girls.

2. The father’s witnesses conceded that they were initially concerned about some of the things the father said in the letters, and the fact that the father sent other letters to the girls which do not contain concerning passages does not detract from the fact that the letters in August and … 2018 do contain such passages and indeed give rise to concern not just because of those passages but because of their content generally.

3. It does not undermine the mother’s case that she thought long and hard before taking the drastic step of withholding the children and commencing proceedings. It is entirely understandable that she would want to be very careful and sure of her ground before taking such a step.

4. It was entirely reasonable for the mother to consider that filing an application in the court, resulting as it would in a full consideration of the matter including in due course the preparation of a report, was an appropriate way to deal with the situation. The issues the mother raised were not issues which could have been addressed at mediation and there is nothing to suggest that the father would have acceded to a request for a psychiatric examination if the mother had made one, indeed the tenor of his affidavits suggests that he would not because he does not consider that there is anything wrong with his behaviour.

5. There is no sign in the evidence of the mother having a mindset to use any excuse to get the father out of the children’s lives. She consented to final orders on 13 July 2018 which provided for him to spend significant and substantial time with the children notwithstanding the concerns she then held. She complied with those orders until late November 2018 notwithstanding a steady accumulation of matters which I am satisfied she had good reason to be concerned about. Thereafter she proposed supervised time, not no time, and supervised time has been happening since a place became available at the contact centre.

6. A full inquiry into the matter may lead to the conclusion that the mother is wrong to be concerned and is misinterpreting the situation; alternatively the father may amend his behaviour in the future; but nothing has happened since the mother filed her application which suggests that she should reconsider her position prior to that full inquiry taking place.

7. I am comfortably satisfied on the balance of probabilities that the mother has established that she had a reasonable excuse for failing to comply with the orders on 14 December 2018 and 22 December 2018 and that her failure to comply with the orders has continued for no longer than was necessary to protect the children’s health and safety.

8. Before finalising the contravention applications completely I need to consider s. 70NDA and s. 70NDB which provide as follows:

70NDA  Application of Subdivision

This Subdivision applies if:

(a)  a primary order has been made, whether before or after the commencement of this Subdivision; and

(b)  a court having jurisdiction under this Act is satisfied that a person (the respondent) has, whether before or after the commencement, committed a contravention (the current contravention) of the primary order; and

(c)  the respondent proves that he or she had a reasonable excuse for the current contravention.

Note: The court may also vary the primary order under Subdivision B.

s.70NDB Order compensating person for time lost

(1)  If:

(a) the primary order is a parenting order in relation to a child; and

(b)  the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);

the court:

(c)  may make a further parenting order that compensates the person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention; and

(d)  must consider making that kind of order.

Note:If the person does not have a reasonable excuse for a contravention, the court has the power to make an order compensating a person for time lost under paragraph 70NEB(1)(b) or 70NFB(2)(c).

(2) The court must not make an order under paragraph (1)(c) if it would not be in the best interests of the child for the court to do so.

1. In light of the word “must” in this section, out of an abundance of caution and to ensure that the father is given procedural fairness I intend to invite submissions on the next adjourned date about whether I should make an order pursuant to s. 70NDB (2).

2. I will also consider s.70NDC on the next adjourned date.

3. Both parents have applications before the court to vary the 13 July 2018 orders and I intend to adjourn the matter to 2.15pm on 20 September 2018 so that directions can be made to progress those applications.

I certify that the preceding seventy nine (79) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date:  29 August 2019