Hillman & Hillman (No 3)

[2017] FamCA 835

FAMILY COURT OF AUSTRALIA

HILLMAN & HILLMAN (NO. 3) [2017] FamCA 835

FAMILY LAW – CHILDREN – Contravention – Where the father alleges two counts of contravention against the mother – Where the mother concedes she contravened the Orders but had a reasonable excuse to do so – Application dismissed

Family Law Act 1975 (Cth)
APPLICANT:	Mr Hillman

RESPONDENT: Ms Hillman

FILE NUMBER: BRC 1750 of 2016

DATE DELIVERED: 19 October 2017

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 17 October 2017

REPRESENTATION

THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT:

Mr Brandon

Evans & Company
Family Lawyers

Orders

1. That the Orders made 7 March 2016 by Judge Cassidy of the Federal Circuit Court be varied pursuant to s 70NBA of the Family Law Act 1975 (Cth) by discharging paragraph 13 of that Order.

2. That the father’s Application-Contravention filed on 24 May 2017 is dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hillman & Hillman (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1750 of 2016

Mr Hillman

Applicant

And

Ms Hillman

Respondent

REASONS FOR JUDGMENT

1. On 24 May, this year, the father in these parenting and property proceedings pending in this Court, filed a Contravention Application in which he alleged that the mother has contravened interim parenting orders in respect of their two children, 14 year old B and 11 year old C.

2. The mother concedes that she contravened the two primary orders that the father says she has contravened, but she asserts that she had a reasonable excuse for doing so.

3. I heard the matter on Tuesday, 17 October 2017, the date it was listed before me. The father appeared without legal representation. The mother appeared with her solicitor.

Some background

1. Last month I made orders and gave reasons on another interim application brought by the father in this matter.  I set out some of these background facts in those reasons.  It is appropriate to set them out again.

2. The father and the mother separated after 23 years of marriage in February last year. The mother alleges that was after an incident of serious family violence directed at her by the father. The father denies that allegation. Suffice to say at this point in time that it is undisputed that the Magistrate who sits in the specialist family violence Court at the Suburb K Magistrate’s Court made protection orders in favour of the mother against the father after a contested hearing that took place after their separation.

3. Not being able to see the two girls for some weeks after separation (they remained living with the father as the mother asserts she went into hiding and was not able to take them with her from the home), the mother commenced proceedings in the Federal Circuit Court (“the FCC”) for parenting orders and property settlement orders soon after. The former couple have been in high conflict ever since.

4. On the first return of the mother’s application in the FCC on 7 March 2016, Judge Cassidy made orders by consent that provided for the girls to live with the parents on an equal shared, week about basis. Relevantly, she also ordered, in paragraph 13 of the Orders she made by consent that day:

   That the Mother not bring the children into contact with [Mr L].

5. The matter was back before Judge Cassidy only about five weeks later. On 13 April 2016, her Honour ordered that the two girls live with the mother and attend only supervised time with the father. Her Honour made a number of other Orders but did not expressly discharge the previous interim orders made on 7 March. None of her Honour’s orders of 13 April 2016 expressly purported to deal with the issue surrounding Mr L.

6. The eldest child’s relationship with the mother apparently became problematic and she would run away from the mother’s home to get to the father. On 15 September  2016, Senior Registrar Spink ordered that the eldest child live with her father and spend no time with the mother unless agreed between the parents or the child expressed a wish to, and for the youngest child to live with the mother and spend no time with the father unless agreed between the parents or the child expressed a wish to.

7. By those September 2016 Orders, the parents were nevertheless ordered to ensure that the two girls spent time together in each other’s company. Paragraph 13 of those Orders provided:

   That the parents facilitate [B] and [C] spending time with each other at all times as agreed between the parents or as requested by the children but if no agreement at least:

   (a)Each alternate Sunday from 10:00 am to 3:00 pm, commencing 25 September 2016; and

   (b)Telephone communication at all times facilitated by the Mother and the Father.

8. To facilitate that time together, the Orders further provided for the girls to be dropped by each parent to the entrance to the cinema at a shopping centre at M Town. They also provided for the parents to facilitate such other activity that the children elect to enjoy with each other but with delivery and changeover to take place outside the cinema. They also provided for the parents to ensure the girls continued to attend upon Ms G, a psychologist, for counselling in respect of issues arising from the parents’ separation. They also provided for the mother not to approach B and the father not to approach C.

9. The father asserted that the mother contravened paragraph 13 of the Orders of 15 September 2016 by not facilitating the girls’ time together between 8 January 2017 and 30 March 2017. The mother admitted that she had not sent C to spend time with her big sister as ordered between 8 January 2017 and 30 March 2017. Indeed, the mother said she had a reasonable excuse for that.

10. The father attached to his affidavit of evidence in chief filed on 24 May 2017 a copy of a letter sent by the mother’s solicitors to the Independent Children’s Lawyer (“ICL”) on 12 January 2017. In that letter, it was asserted that at the visit that took place on 24 December 2017, the father and the eldest child, B, were insistent that C leave the shopping centre with them and travel to another shopping centre and also to their home to collect a present. It is asserted that C told them she did want to go elsewhere. C apparently contacted the mother by phone and the mother immediately collected her. The mother’s solicitor’s letter purported to give “clear notice” to the father that there would be “no further visits” and that the mother would be seeking a discharge of the existing orders providing for the girls to spend time with each other.

11. That foreshadowed application was subsequently commenced by the mother and on 30 March 2017, Senior Registrar Spink stayed paragraph 13 of the parenting orders made on 15 September 2016. At that hearing, the ICL relied upon an affidavit of Ms G, the psychologist who had been seeing the girls. That affidavit was filed on 27 March 2017 and included a report by Ms G. It was also read by the mother in her defence in these contravention proceedings. I shall refer to it in more detail later in these reasons.

12. On 8 May 2017, the matter came before Hogan J of this Court. On that day, her Honour made more orders by consent that provided for the two girls to spend time together in the presence of an independent supervisor/facilitator each alternate Saturday from 1:30 pm to 3:30 pm. The order provided for each parent to comply with any directions of the supervisor to “ensure that the children’s time together is free from any conflict between the parents”. The order also provided for the ICL to obtain written reports from the supervisor with respect to the sibling contact from time to time.

13. My recent September judgment dismissed the father’s Application in which he sought a variation of those orders that provided for the girls to spend time together.

The Contravention Hearing

1. At the commencement of the hearing before me in these contravention proceedings, the solicitor for the mother made submissions that I should strike out the alleged contravention of the injunction contained in paragraph 13 of the Orders of 7 March 2016. I determined not to do so and gave oral reasons.

2. The matter then progressed with the father not being cross-examined on his short affidavit evidence before the mother was called to the witness box to give oral evidence. No affidavit that she had deposed to was filed and read and relied upon. The mother gave some oral evidence in chief.

3. Principally, she gave evidence about the issue relating to the alleged contravention of paragraph 13 of the Orders of 7 March 2016. She said that Mr L and his wife, Ms N, were friends of the father and the mother before the mother’s and the father’s separation early last year. The mother is Chinese by ethnicity and comes from City P. She said that Ms N is also Chinese and from City P. She said that her parents and Ms N’s parents know each other in China. She and Ms N are great friends, she said.

4. The mother told the Court that the parties’ daughter, C, and the daughter of Mr L and Ms N, Q, have been going to the same school since they started school and are best friends. She told the Court that the two families used to spend a lot of time together socialising prior to her separation from the father at the beginning of last year. The father did not take issue with that last assertion. He specifically agreed that the two families had socialised together at the beginning of last year on the day of C’s birthday and again the very next day, on the day of Ms N’s birthday, only a few days before the separation of the parties.

5. The mother agreed that she had consented to the Orders made on 7 March 2016, including the injunction, though she said she did not consider Mr L to present any risks of harm of any sort to the parties’ children. She then told the Court that when the further Court Orders were made by Judge Cassidy five weeks later in April 2016, she believed that the injunction restraining her from bringing the children into contact with Mr L was discharged simply by the making of the fresh parenting orders. She readily told the Court that she has been bringing C into contact with this family ever since that time as they are her greatest source of support through the difficult times that she has been having in the separation from the father and because Q is C’s friend. The mother told the Court that she has never observed and is not aware of anything about Mr L that would cause her to think that C should not be brought into contact with him. She also said that C has never said anything to her to suggest that she is scared of Mr L and does not want to spend time in his company or household.

6. The mother made it absolutely clear that her relationship with this family is ongoing and that she would like to keep it that way in the future. She also made it absolutely clear that if anything is to come of this contravention hearing, she would like to see that order of March last year restraining her from bringing the children into his company, which she said she already thought was no longer binding on her, discharged.

7. Although the father informed the Court that he was not aware that he would be able to cross-examine the mother and had not prepared any cross-examination, I nevertheless afforded him the opportunity to cross-examine the mother. He did ask her some questions, though, I say with respect, not very effectively.

8. She agreed that she was aware that on 5 February 2016, Mr L had called the father and had a conversation with him immediately after the parties’ separation.  She was aware that the father alleged that Mr L had threatened him and that the father had reported this to police. She told the Court that she was aware that Mr L had not been charged with any offence arising out of this complaint. She asserted that Mr L had told her that he had simply rung the father to talk with him about his treatment of the mother and had said something to him like “how would you like it if I put my hands around your throat?” That is what the mother alleges the father did to her immediately before she decided she had to leave him for her own safety.

9. She also agreed with the father that the father made another complaint to police about behaviour alleged to be directed at him by Mr L in the middle of last year that the father described as Mr L “attacking” his car. She told the Court that she was there during the alleged incident which apparently took place near the Mr L’s home and that Mr L had not done what the father said he had done. Again, she said that Mr L has not been charged by police with an offence arising out of that.

10. She also agreed that the father has made a further complaint to police about Mr L and his alleged behaviour towards the father said to have taken place in or around May of this year. Again, she told the Court that Mr L has not been charged with any offence arising out of that complaint, although the father asserted that the police are still investigating it.

11. The father did not ask the mother any questions that elicited evidence that made me consider she was not telling the truth. He did not ask her any questions that challenged in any way her assertions that she had a reasonable excuse for ceasing to send C along to meetings with her sister, B, in January of this year. He did not ask her any questions that elicited any evidence that made me concerned about the welfare of the child, C, if she is brought into contact with Mr L.

12. I asked the mother what she thought were the father’s reasons for seeking and wanting to maintain the injunction restraining her from bringing the children into contact with Mr L. She very quickly answered that she believed that he wanted to damage her relationships with her friends who have provided her principal source of support since the separation. Her answer struck me as being carefully thought about well in advance, and demonstrating significant conviction to the belief.

13. Aware that I might be asked by the mother to discharge paragraph 13 of the Orders of 7 March 2016 at the end of the contravention hearing, whatever the outcome, I considered it appropriate to give the father the opportunity to give evidence in the witness box as to the issue. I asked him to tell the Court why he considered it in C’s best interests not to be brought into contact with Mr L. He told the Court that Mr L was “clearly, deliberately influencing [C]; turning her against [B]; turning her against me”.

14. When I asked him how he knew that, the father’s answer was that he knows that “from his behaviour”. He mentioned phone calls where Mr L allegedly threatens him and he also mentioned text messages from Mr L. He gave no evidence of any specific instance or occasion where to his knowledge or belief, Mr L has actually behaved inappropriately to C, denigrated him or B to C, or done anything in or around C that persuaded me that C would face some unacceptable risk of harm in his company. He did assert that B and C were present in the room with him on 5 February 2016, when Mr L threatened him on the phone and that the threat scared them. I asked him how they had heard it and he said that he had the phone call on loud speaker so the girls could hear it. If that was correct, I consider that rather unfortunate. However, I am conscious that the mother asserts that Mr L denies having threatened the father as the father alleges. Without more, I am not in a position to say that I am satisfied that Mr L threatened the father as the father alleges or that the girls heard such a threat.

15. I got the clear impression that the father was angry with Mr L because he has sided with the mother and provided her with support since the separation when he and Mr L were previously friends.

16. The father said other things that caused me to be troubled about his feelings toward Mr L. He was quick to express the negative views he holds of this man who was once his friend. He told the Court that he has driven past the property in which Mr L’s family lives on several occasions since separation although it is not a route he is required to drive to get from his home to any place in particular that he needs to travel to. In other words, he agreed that he has voluntarily chosen to drive past their home in circumstances where he asserts that Mr L has previously threatened to “kill” him. The father went as far as telling the Court he had driven past their house on a number of occasions with B in the car because B had asked him to, so she could see if C was there. This was an extraordinary piece of evidence in my judgment. I consider that to be an example of inappropriately involving the 14 year old child in this dispute with the mother. The father sought to justify it by claiming that the mother was contravening the order and he was just trying to gather evidence to prove that she was. I do not accept that is the only reason he was driving past their home.

Has the Mother contravened the relevant Order without Reasonable Excuse?

1. As I found that the mother has actually been bound by paragraph 13 of the March 2016 order right through from when it was made until now, as it was never expressly or implicitly discharged, I am satisfied that she has contravened it as she has made no reasonable attempt to comply with it, at least since April 2016 (see s 70NAC (a)(ii) of the Family Law Act 1975 (“the Act”)).

2. Section 70NAE of the Act provides circumstances, though not limited to those set out in the section, in which a person may be taken to have had, for the purposes of Division 13A of the Act, a reasonable excuse for contravening an order under the Act affecting children. Those include, in subsection (2), if the person contravened 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 the Court is satisfied that the respondent ought to be excused in respect of the contravention.

3. For the mother, it was submitted that if I accept her evidence that she thought that injunction was discharged by the further set of interim parenting orders that were made by the same Judge in April 2016, and that it no longer imposed an obligation upon her, that I should be satisfied that she has a reasonable excuse for the contravention.

4. It was an interesting submission from a solicitor who has been representing the mother from the commencement of the proceedings last year. Of course, the advice that the solicitor gave the mother was confidential and subject to lawyer-client privilege. The mother could not be required to tell the Court what advice she got from her solicitor and the solicitor could not, without a waiver of the privilege by the client, tell the Court what advice he gave her about this matter. Having seen and heard her give evidence in the matter, I could not say there was anything about her evidence that she thought that part of the order was discharged by the further orders made in April 2016, that made me consider her evidence was not honestly given.

5. I also note that her solicitor made submissions at the start of the hearing that paragraph 13 of the March 2016 Orders was implicitly discharged by the later Orders. That submission, at least, is consistent with the belief that the mother said she had. Furthermore, it is clear that when the mother ceased complying with paragraph 13 of the later parenting Orders made on 15 September 2016, that are the subject of the other alleged contravention, she and her lawyers acted in a reasonably timely fashion to bring an application to vary that order. That, of course, is the proper response when a parent believes that an order is no longer in the best interests of a child. The fact that the mother (and her solicitors) never brought an application to discharge or vary paragraph 13 of the March 2016 Orders is certainly consistent with the mother honestly believing that the restraint no longer applied after the April 2016 Orders were made. If she considered herself bound by the March 2016 Order, even after the father’s Contravention Application was served upon her a few months ago, one would have expected her to have filed an application seeking its discharge.

1. In the circumstances, I am persuaded on the balance of probabilities that the mother honestly did not understand that the obligation she initially consented to having imposed upon her by paragraph 13 of the March 2016 Orders continued through past the further Orders made in April 2016 and the other Orders made since then to this present day.

2. Notwithstanding the fact that the mother consented to the making of the injunction in the first instance, I am far from persuaded that there is any unacceptable risk of harm being caused to the child, C, (or B for that matter) by being brought into contact with Mr L by the mother.

3. I am also conscious that the order was consented to by the mother on the first return date of her application at a time when she had not seen the two girls for over a month since her separation from the father and the father was clearly seeking the restraint in respect of the children being brought into contact with Mr L that day. Notoriously, first return dates in the FCC are busy days with sometimes up to thirty matters being listed before the extremely busy judges of that Court. Few, if any of the matters listed, can demand complete hearings of contested interim applications on those days. Compromise is often the only way to achieve outcomes favourable to one or both of the parties. I certainly do not accept without more that the making of the injunction in the consent order by Judge Cassidy demonstrated a belief on the mother’s part that the injunction was necessary for the children’s protection.

4. Having regard to these matters, I am quite satisfied that the mother ought to be excused in respect of the contravention of paragraph 13 of the March 2016 Orders.

Varying the Order

1. Section 70NBA of the Act empowers the Court to vary the primary order at the conclusion of contravention proceedings in respect of the primary order whether the Court finds that the respondent contravened the order or finds that the respondent did not contravene the primary order. Of course, a variation, which I consider also includes an actual discharge of the order, must be made, if it is going to be, bearing in mind the paramountcy of the best interests of the child.

2. I am quite satisfied now on the evidence that I have heard in this matter that it is not in the best interests of the child, C, (or the child, B) to restrain the mother from bringing either of the children into contact with Mr L. I am satisfied that the mother, C and indeed B, have solid relationships with Mr L and his wife, Ms N, and their daughters. I am satisfied that Ms N is one of the mother’s closest friends, if not her closest. I am also satisfied that Q is one of C’s friends, even if she is not her best friend as the father asserts. I accept that the mother draws a great deal of support from Mr L and Ms N and that to maintain the restraint against bringing either girl into contact with Mr L would have a particularly detrimental effect on that level of support with potential detrimental effects on the mother’s emotional well-being.

3. The father made a passionate submission for the restraint to remain in place. In addition, though, he submitted that the Court should make an order that permits him to be able to go and check that the mother is complying with the restraint. I understood that to mean that he sought some sort of sanction or permission from the Court to be able to continue to deliberately drive past the home of Mr L and Ms N, something that even in his own case has led to trouble and police involvement on more than one occasion in the last eighteen months. I do not consider that to be in the best interests of either child, particularly as the father admitted taking B in the car with him when he has driven past the home and got into some trouble there. 

4. I consider it entirely appropriate and in the best interests of the children to discharge paragraph 13 of the Orders of 7 March 2016 and I will do so.

Does the Mother have a reasonable excuse for Contravening paragraph 13 of the Orders of 15 September 2016?

1. The report of psychologist, Ms G, of 24 March 2017, that was attached to her affidavit filed in the proceedings by the ICL on 27 March 2017, records that Ms G saw C on 2 August, 1 September, 7 November, 5 December 2016 and 17 January and 20 February 2017. She also saw B on 10 November 2016.

2. Ms G, who practices as a Clinical Family Therapist, reported C telling her that on the second visit with her sister, B, after the September 2016 Orders were made, her father was with B and  “allegedly suggested they ([B], [C] and [Mr Hillman]) go together to talk.” C is also reported as having told Ms G that her father and B interrogated her about her mother.

3. Ms G went on to report that C told her that on the visit on Christmas Eve in 2016, she had contacted her mother to collect her early as B and the father wanted to take C to another shopping centre and she did not want to go. She is reported to have said she was afraid to go and that both her sister, B, and her father were very angry with her. Ms G reported that it was C’s express wish to have no contact with her father at that time.

4. The mother’s case is that the matters Ms G reports C telling her are the very matters upon which the mother based her decision to suspend the time the girls were spending together in early January 2017, and to seek to have the order providing for that to be discharged. That resulted in Senior Registrar Spink suspending the order in March 2017.

5. The father asserted that he had not approached C on Christmas Eve but rather that she had approached him and said to him that she did not want to go to the other shopping centre and that she had already called her mother to come and collect her. He asserted that he merely said to C that she did not have to go to the other shopping centre if she did not want to.

6. In his submissions, the father said that although the Court probably has to accept Ms G’s report that the child, C, said the things to her that she reported, that the Court should not accept that the child was not put up to say those things to Ms G by her mother. It is worth, I consider, repeating my earlier observation that the father did not even ask the mother any questions about this issue in his cross-examination of her. He did not suggest to the mother that she put the child up to giving false information to Ms G. That is a fundamental flaw in his case, in my judgment.

7. I accept Ms G was reporting accurately on the things that C told her. I have absolutely no reason to consider that the mother coached or put C up to giving Ms G false information. I am satisfied that the mother has established that she had reasonable excuse for not complying with the obligations imposed on her by paragraph 13 of the Orders of 15 September 2016 until that Order was stayed by Senior Registrar Spink. She acted, on what I accept she believed were reasonable grounds to protect C’s emotional well-being and the period during which C did not spend time with B was no longer than was necessary to protect C’s well-being in that it was for the period from when the mother stopped it in early January this year, until the Senior Registrar stayed the Order in late March (see s 70NAE(5) of the Act).

8. As I have accepted the mother’s case that she had reasonable excuse for the contraventions of the Orders alleged against her by the father I will dismiss the father’s Contravention Application.

9. I make the Orders set out at the commencement of these written reasons.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 19 October 2017.

Associate: 

Date:  19 October 2017