HOCKING and BROMLEY-NIVEN
[2015] FCWA 87
•9 OCTOBER 2015
JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: HOCKING and BROMLEY-NIVEN [2015] FCWA 87
CORAM: WALTERS J
HEARD: 25 - 27 AUGUST 2015
DELIVERED : 9 OCTOBER 2015
FILE NO/S: PTW 5938 of 2000
BETWEEN: MR HOCKING
Applicant
AND
MS BROMLEY-NIVEN
Respondent
Catchwords:
FAMILY LAW – Contravention – mother fails to make child available for contact – breach of orders admitted, but reasonable excuse alleged – findings of no reasonable excuse – case turns on its own facts – long history of litigation – current orders not in best interests of the child – orders varied
Legislation:
Family Court Act 1997 (WA)
Sentencing Act 1995 (WA)
Category: Not Reportable
Representation:
Counsel:
Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Solicitors:
Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Case(s) referred to in judgment(s):
Dobbs & Brayson (2007) FLC 93-346
Gravis & Major [2010] FamCAFC 239
In the Marriage of Rossi (1980) 6 Fam LR 148
Langer & Griffin [2013] FamCAFC 170
McClintock v Levier (2009) 41 Fam LR 245
Ongal & Materns (2015) FLC 93-645
Re F – Litigants in Person Guidelines (2001) FLC 93-072
Saxena & Saxena (2006) FLC 93-268
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN
CHANGED
Introduction
1 [Child A] was born on [in] 2000 and is now 15 years of age. Her parents have been involved in litigation regarding parenting arrangements for her for almost the whole of the time since she was born. Indeed, the parties have filed some 47 applications of one sort or another (including initiating applications and responses, applications in a case and responses, contravention applications and Child Support applications or appeals). The first was filed on 27 September 2000; the most recent was filed on 24 June 2015.
2In those 15 years, the Court has made dozens of orders, and both the parties have repartnered – but their feud continued unabated. Each party thinks that he or she is reasonable and the other party is not.
3More than 20 years before Child A was born, Fogarty J spoke of long-term family law litigation such as this in In the Marriage of Rossi (1980) 6 Fam LR 148 (Rossi). Although the relevant passage is comparatively long, it bears repeating. His Honour said at pp 151-2:
This is the sort of case which is not untypical in this court (the Family Court of Australia) and which imposes enormous and in my view unacceptable pressures upon the system being both court time, cost to the community (as both parties are on and always have been on Legal Aid) and which ensure that other cases which are at least capable of some resolution do not get on for hearing. Since this court commenced four years ago we have collected in this Registry, and I am sure that other Registries have an equal experience, a number of cases whose names are all too well known in the Registry and which are cases which appear incapable of finalisation and indeed in my view they are really incapable of proper or adequate determination by a judicial system. Ordinarily there is an end to litigation at least in the traditional courts. There is a hearing relating to some matter in dispute, a judgment and, subject to questions of appeal, that terminates the matter whether or not one or both of the parties are satisfied with the result. That is basically because litigation is traditionally concerned with a defined dispute which is capable of being terminated by a final judgment one way or the other. The problem about the jurisdiction under the Family Law Act at least in relation to children is that obsessive litigants can in effect continue to relitigate the matter ad nauseam. They have a whole galaxy of subsequent applications which they can work their way through including applications for variation of custody or access, allegations of non-compliance, personal restraint type applications, costs and the like. ...
It should be added there is in my experience a group of cases or litigants who are incapable of being catered for by any procedures under the Family Law Act. They are people who have such an intransigent attitude towards the other party that they are incapable of being influenced by counselling, they are not prepared to accept any order which is not entirely to their satisfaction and they have an unlimited capacity to use the children and the procedures of the court to continue to harry their [ex-partner]. Where it happens, in such a case as the present one, that both are equally obsessed with this attitude then it appears to me that the system is just not capable of playing any worthwhile role either for the parties or for the children and indeed is simply being misused by them as a convenient battlefield provided for them usually at enormous expense to the public. Here there has been history of a complete disregard of orders by one side and the other. Neither has been the slightest bit influenced by the good offices of the counsellors and the only way in which this litigation will currently come to an end is either by the death of one of the parties or when the youngest child of this marriage reaches at least the age of 14.
4Perhaps presciently, his Honour added at pp 152-3:
I want to mention a further matter which is particularly apposite in this case and in cases like it. If experience in this court since its inception has established anything it has been an increasing feeling of dissatisfaction with access orders. There is, I think, no doubt that they represent the most difficult and intractable area of the court's jurisdiction and I think the time has now come for the court to give effect to feelings which are being expressed informally at all levels within the system namely that a new approach to access orders is called for.
The traditional access order of alternate weekends and half the school holidays etc works well enough in the ordinary sort of case where the parties and the children are normal and reasonable and are not only prepared to comply with the order but see it as a desirable thing to do so. But where one or both of the parties are not normal or reasonable or where access is imposing unacceptable pressures upon the children concerned it seems to me that the matter has to be looked at in an entirely different light. We are still I think too influenced by the traditional formulations of the principles relating to access which, although they give lip-service to the view that access orders are made in the interests of the child and the test is the welfare of the child, really still give far too much weight to the “right” of the non-custodial parent to access. … That traditional approach seemed to me to proceed upon the fairly robust assumption that even if a child did not really want to go on access and even if no positive advantage to the child could be seen in access to the non-custodial parent, nevertheless it is good for the child in some way as a form of character building as well as maintaining for the child contact with both parents. But where the continuation of access can only occur in circumstances of conflict and pressure I must say my own view is that that circumstance outweighs the general or theoretical advantage that access is otherwise said to have. It seems to me that both more recent writings by social scientists and increasing degree of experience by the court itself all points, almost irresistibly, in the one direction, namely that however unfortunate it may appear to be to the non-custodial party to refuse access, nevertheless, in the interests of the child, access ought not to be compelled where it will be attended by circumstances of real stress and pressure to the children. To do so is really to subvert the idea that the welfare of the child is the decisive factor. It places the court in a series of impossible situations by it having to deal with frequent applications for enforcement of access and variations of access and it imposes enormous financial and other pressures upon the court machinery as a whole. Of course it frequently appears that the custodial party is deliberately, by his or her own acts, subverting the access and in a sense it seems to be unfair that that party ought in effect to gain by his or her own misdeeds and the innocent non-custodial party to suffer as a consequence. In some cases, that circumstance may, with others, call for reconsideration of the custodial position but in the majority of cases that is not really a viable alternative and in that latter situation in my view real weight should be given to the real welfare of the child and that in most cases would compel a situation where access is suspended or terminated. Frequently in that situation the custodian is the long term loser. In addition the non-custodian needs to remember that the period of non-access is comparatively short in the overall life of the child.
5The sentiments expressed by Fogarty J in Rossi were echoed recently by the Full Court in Ongal & Materns (2015) FLC 93-645 at, for example, [91], [134], [143] and [152].
6Although the provisions of the Family Law Act 1975 (Cth), and the terminology used within it, have altered markedly since the decision in Rossi, the dilemmas facing the Court in cases such as that now before it remain unchanged. To the Court, the continued disputes regarding Child A’s parenting have been burdensome and inconvenient; to the parties, they have been frustrating and draining (although, to the father at least, they appear to have been energising as well) – but to Child A, they have undoubtedly been a source of immense strain and unhappiness. The protracted dispute between her parents has hovered over her young life like a dark cloud.
7The current round of proceedings relates to three separate contravention applications filed by the father in 2014 and 2015. In each of them, he alleges that the mother has contravened parenting orders. The mother denies that she contravened the orders. In some cases, she says the alleged contraventions did not occur. In others, she admits that she did not comply with the orders but asserts that she had reasonable excuse for her non-compliance.
8The three contravention applications were heard together on 25 and 26 August 2015. The parties, who represented themselves, presented their closing submissions on 27 August 2015.
9At the end of the trial, I reserved my decision.
Preliminary comments
10In these Reasons, and unless otherwise indicated:
a) all statements of fact comprise findings of fact;
b)I have referred to the parties as the father and the mother (and I mean them no disrespect by doing so) – because it is less confusing than referring to them as the applicant and the respondent;
c)I have not drawn a distinction between proceedings or events before a family law magistrate and proceedings or events in the Family Court of Western Australia;
d)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides among other things that "to swear" includes "to affirm");
e)references to legislation are references to the to the Family Court Act 1997 (WA) – although, when necessary, I have referred to this enactment as "the Act" or the "FCA"; and
f) I have referred to the Family Law Act 1975 (Cth) as the "FLA".
11Although the law now refers to a child "spending time" with a person with whom the child does not live, I shall use the obsolete term "contact" from time to time in these Reasons. I have elected to use the superseded term because it is both more convenient and less grammatically challenging to do so.
The orders alleged to have been contravened
12The orders the subject of the father's contravention applications were made on 9 June 2014. I shall refer to them as the primary orders.
13The relevant provisions of the primary orders are as follows:
2)Subject to paragraph 3 below, the mother have sole parental responsibility for [Child A] in relation to issues about the child's care, welfare and development of a long-term nature – including, but not limited to, her education (both current and future), her religious and cultural upbringing and her health.
3)In exercising sole parental responsibility in relation to issues about the child's care, welfare and development of a long-term nature (as provided for in paragraph 2 above), the mother must:
a)consult the father in relation to any decision to be made about that issue;
b)make a genuine effort to come to a joint decision about that issue; and
c)in the event that the parties are unable to come to a joint decision about that issue, notify the father of any decision relating to the issue within seven days of making such decision.
4)[Child A] live with the mother.
5)Subject to any other agreement between the parties:
a)[Child A] spend time with the father on a fortnightly basis, from 5 p.m. Friday to the commencement of school on Monday ("the fortnightly contact"), with the father to ensure [Child A] is properly equipped with a school uniform;
b)In each of the school holidays at the end of terms 1, 2 and 3 in each year, [Child A] spend time with the father from 5 p.m. of the last day of term to 5 p.m. on the middle Saturday of the holidays.
c)…
6)…
7)The parties keep each other informed as to appointments with any health professional and treatment during their time with the child.
8)…
9)Subject to the relevant schools requirements from time to time, the father be permitted to attend at [Child A’s] school –
a)to drop off and to collect [Child A] in accordance with arrangements reflected in these orders; and
b)to attend conferences with or otherwise speak to [Child A’s] teacher or the schools teaching staff generally.
The alleged contraventions
14The father filed three contravention applications – on 25 August 2014, 16 October 2014 and 23 June 2015. I shall refer to them, respectively, as CA1, CA2 and CA3.
15The alleged contraventions in CA1 are as follows:
CA1
Relevant paragraph of the primary orders
Date of alleged contravention
Details of alleged contravention
1.
3, 7 & 9
9 June 2014 to 30 July 2014
The mother without reasonable excuse failed to provide the father with a copy of [Child A’s] school report, failed to inform the father of parent/teacher interviews, made an appointment with a psychologist without consulting the father and failed to provide information with respect to the outcomes of and treatment of (sic) that appointment.
2.
5(g)
8 July 2014
The mother without reasonable excuse made arrangements that did not allow the father to spend time with [Child A] as per [the primary orders].
16The alleged contraventions in CA2 are as follows (continuing the numbering of the alleged contraventions from CA1):
CA2
Relevant paragraph of the primary orders
Date of alleged contravention
Details of alleged contravention
3.
5(a)
29 August 2014
The mother refused to produce [Child A] for contact denying the father the opportunity to spend time with [Child A].
4.
5(a)
12 September 2014
The mother refused to produce [Child A] for contact denying the father the opportunity to spend time with [Child A].
5.
5(g)
2 October 2014
The mother came to the father's home when she knew he would not be present and removed [Child A] thus stopping contact and preventing the father from spending time with [Child A].
17The alleged contraventions in CA3 are as follows (continuing the numbering of the alleged contraventions from CA1 and CA2):
CA3
Relevant paragraph of the primary orders
Date of alleged contravention
Details of alleged contravention
6.
5(g)
2 April 2015
The mother without reasonable excuse refused to produce [Child A] and to allow the father to spend time with her as per the court orders.
7.
5(a)
24 April 2015
The mother refused to produce [Child A] for contact denying the father the opportunity to spend time with [Child A].
18Thus, the father alleged total of seven contraventions.
19The father swore an affidavit in support of each of the contravention applications. The affidavits were sworn on 8 August 2014, 8 October 2014 and 1 May 2015 respectively. I shall refer to them as FA1, FA2 and FA3.
20Although she was aware that she was not obliged to do so, the mother swore an affidavit in response to each of the contravention applications. All three affidavits were sworn on 24 August 2015. I shall refer to the affidavit sworn in response to CA1 as MA1, the affidavit sworn in response to CA2 as MA2 and the affidavit sworn in response to CA3 as MA3.
The law
21The consequences of failure to comply with orders affecting children are dealt with in Division 13 of Pt 5 of the FCA. The Division contains Subdivisions dealing with the Court's power to vary parenting orders in the context of contravention proceedings, what happens if a contravention of a parenting order is alleged but not established, what happens if a contravention of a parenting order is established but the respondent proves that he or she had a reasonable excuse for the contravention, the Court's powers where a less serious contravention of a parenting order has been established (and no reasonable excuse has been demonstrated) and where a more serious contravention of a parenting order has been established (again, without reasonable excuse).
22Section 205C of the Act provides as follows:
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;
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.
23The onus of proof rests on the applicant to prove that the respondent contravened an order affecting children. The standard of proof is on the balance of probabilities having regard to the gravity of the allegation. The breach must be shown to be intentional, but it does not require proof of contumacious behaviour.
24If the respondent asserts that he or she had a reasonable excuse for the alleged contravention, then he or she must prove the existence of the reasonable excuse. The standard of proof is on the balance of probabilities.
25The FCA provides a definition of what amounts to reasonable excuse, but it is not an exhaustive definition. Thus, s 205E of the Act is as follows:
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)a 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 subsection (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 communicate 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 98A applies by acting contrary to section 98A 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).
26It is important to bear in mind that orders dealing with contact issues (in other words, with whom a child is to spend time or communicate) are taken to include an obligation on the parent with whom the child lives (and others) not to hinder or prevent the contact parent and the child from spending time together in accordance with the relevant order. Such orders are also taken to include an obligation on the parent with whom the child lives (and others) not to interfere with the contact parent and the child benefiting from spending time with each other in accordance with the provisions of the order: see ss 97, 98 and 205D. Similarly, orders dealing with parental responsibility are taken to include an obligation on all persons not to hinder a parent with parental responsibility in, or prevent that person from, discharging that responsibility: see s 98A.
27I shall refer to relevant provisions of the FCA elsewhere in these Reasons as the need arises.
Both parties were unrepresented
28I am aware of the guidelines regarding the manner in which a judicial officer should deal with unrepresented litigants, and the associated discussion contained in Re: F – Litigants in Person Guidelines (2001) FLC 93-072 at [209] to [253]. I applied those guidelines during the course of the proceedings, and am comfortable that the trial was fair. In summary:
a) procedural fairness was afforded to both parties;
b)the "mechanics" of the trial, and the right of the parties to cross-examine witnesses, were explained to them;
c) other relevant procedures were explained to the parties as they arose;
d)I explained to the parties that they had the right to object to inadmissible evidence, and explained to them – in very broad terms – the types of evidence that might be considered inadmissible;
e)where appropriate, I attempted to clarify the substance of each party's submissions; and
f)where appropriate, I took other steps as authorised by the Full Court in Re: F – Litigants in Person Guidelines at [253]: see Guideline #9 in that paragraph.
29In Saxena & Saxena (2006) FLC 93-268, Coleman J emphasised that the type of guidelines set out in the previous paragraph are "no more than the name implies" and that they "derive from the broader considerations of natural justice, implicit in which is the recognition that for a litigant in person to be afforded natural justice and procedural fairness, that litigant must have some appreciation of just what is going on". His Honour added that the Court must be concerned with "the spirit rather than the strict letter of the guidelines".
30In the present case, both parties participated in the process fully. I have no doubt that they fully understood "what was going on" at all times.
31The procedure adopted at the hearing was as follows:
a) I informed the mother of each allegation;
b) I asked the mother whether she wished to admit or deny each allegation;
c) I heard the father's evidence supporting the various allegations; and
d)I heard the mother's evidence in response to the various allegations (bearing in mind that the mother had already sworn affidavits dealing with the allegations);
32Each party cross-examined the other, and (as indicated above) both made closing addresses.
The parties
33As might be expected with parties who have continued to litigate (in one form or another) for some 15 years, the father and the mother both presented as stubborn and single-minded. Each sought to present his/her inflexibility and determination as rooted in a genuine desire to safeguard and promote Child A’s best interests. Neither succeeded in that regard. Instead, the primary focus for each appeared to be the conduct, character and alleged deceitfulness of the other. Each used every opportunity to endeavour to persuade the Court that the other parent was cunning and unscrupulous.
34The father sought to portray himself as a sensible and caring person, who had been driven to file the contravention applications as a last resort following a long history of the mother's lack of compliance with parenting orders. He argued that the contravention applications were necessary because the mother's actions were damaging his relationship with Child A. He suggested that he wanted no more than courtesy and respect from the mother, and for her to put aside her dislike and mistrust of him and simply comply with the pre-existing orders (which, by definition, comprise the Court's view of what is in Child A’s best interests).
35The mother also sought to portray herself as a caring person, who had been worn down by the long years of litigation with the father – who she regards as threatening and intimidating towards both herself and Child A. She suggested that Child A’s happiness and mental health had always been her priorities and that she took seriously her obligations in relation to promoting Child A’s best interests. She argued that she had "perhaps" become too fiercely protective of Child A’s happiness and well-being. Among other things, she suggested that her failure to fully support the contact arrangements between Child A and the father was not always intentional and was somehow "a result of years of managing and raising a child with problematic behaviour and mental health issues". In relation to contact itself, the mother said, in effect, that she was between a rock and a hard place: she was not always sure how to deal with Child A’s reluctance to spend time with the father and did not always know whether Child A was genuinely anxious and stressed about contact or simply manipulating her. She admitted that she is "so tired and exhausted from just managing Child A alone … with her mental health problems" that she finds the contact arrangements to be "an aggravation to the situation" – and that, at times, she just gives in to Child A or "can't be bothered trying to deal with it". Her attitude is that Child A’s contact with the father "is another additional stress in [her] life and in Child A’s life" and that she sometimes "pushes the orders aside without really thinking about the consequences".
36The comments quoted in the previous paragraph are from the mother's closing submission.
37I paid careful attention to the parties during the trial. While litigation is clearly a stressful experience for a litigant (and particularly for a self-represented litigant), and while nervousness and anxiety are to be expected during the course of giving evidence, neither party's conduct and demeanour in the courtroom could fairly be regarded as wholly, or even substantially, attributable to such considerations. Neither was an impressive witness. Each allowed his/her antipathy towards and lack of respect for the other to affect his/her interpretation of events. Their assertions that Child A’s best interests comprised their dominant motivation were often hollow and unconvincing. The father moved effortlessly between seeking to give the impression of being calm, prudent and considerate and showing himself to be obstinate, inflexible and insensitive. The mother, for her part, moved just as effortlessly between seeking to give the impression of being long-suffering, deferential and passive and showing herself to be defiant, petulant, combative and discourteous, and as obstinate and inflexible as the father. In their own way, each revealed a healthy self-esteem, and each appeared indifferent to the needs of others (including, regrettably, Child A’s emotional needs). I find that both parties are opinionated and controlling, and that each is more than capable of being vindictive.
38It is beyond the ability of the Court to change the parties' personalities. The contravention applications must be considered and determined, but there is little likelihood that any rulings the Court may make regarding the applications, and any orders following upon those rulings, will affect the parties' enmity. Their rancour towards each other will persist. The situation is very similar to that described by Fogarty J in Rossi (see above). Irrespective of the outcome of the contravention applications, I propose to focus on Child A's best interests and, to the extent that I am able to do so, make orders that will protect her from the bad blood that exists between her parents. Whether or not the mother is subverting the contact arrangements, and whether or not the father can be perceived to be the innocent party, the crushing burden of her parents' demands, expectations and, it should be said, inadequacies, must be removed from her. She has been "the meat in the sandwich" all her life. It is not in her best interests for that situation to continue.
39Unsurprisingly, given the circumstances she has had to deal with, Child A can clearly be a difficult child to manage. This is particularly the case for the mother, who has had to call the police on at least one occasion. She describes Child A as a child who experiences severe anxiety and can be oppositional in her behaviour. This is particularly so when it comes to contact with the father. Although the father was of the view that these problems were caused, exacerbated or entirely fabricated by the mother (his evidence being that Child A never behaved in such a manner when with him – which I regard as an assertion demonstrating a staggering lack on insight on his part), I accept that Child A’s behaviour can indeed be challenging. The mother, in particular, struggles to manage Child A and seems to have elected to follow the path of least resistance. For his part, the father has (at times) been overbearing and aggressive towards Child A.
Alleged contravention #1
40The date range for the behaviour associated with alleged contravention #1 is from 9 June 2014 to 30 July 2014. Clearly, the mother's behaviour prior to the making of the primary orders on 9 June 2014 cannot properly form the subject of an alleged contravention of the primary orders. The father acknowledged this limitation during the hearing.
41It is true that I had made orders which were very similar to the primary orders on 10 February 2014. Indeed, the primary orders were modelled on these orders. Alleged contravention #1, however, clearly refers to breaches of the primary orders. Irrespective, therefore, of the mother's somewhat high-handed behaviour in the period leading up to the making of the primary orders (see, for example, FA1, annexure 2), the Court can only concern itself (in these proceedings) with events subsequent to the making of the primary orders.
42Beyond reference to the mother making an appointment for Child A with a psychologist prior to the making of the primary orders, the father did not particularise in FA1 the various assertions contained in alleged contravention #1. It is also apparent that none of the paragraphs of the primary orders alleged to have been contravened by the mother (being paras 3, 7 and 9) require the mother to provide the father with a copy of Child A's school report or inform him of parent/teacher interviews.
43The psychologist with whom the mother made an appointment for Child A prior to the making of the primary orders was Dr Marilyn Metta. Exhibit M5 reveals that Child A saw Dr Metta on 7 June 2014, August 2014, September 2014 and July 2015. The first of these appointments was prior to the making of the primary orders. The other appointments were all subsequent to the date range relied upon by the father in support of alleged contravention #1 (being 9 June 2014 to 30 July 2014). It follows that the only relevant appointment (for the purpose of these proceedings) about which the mother could have been obliged to inform the father was the appointment on 9 August 2014: see paragraph 7 of the primary orders. Similarly, the only relevant period (for the purpose of these proceedings) during which the mother was obliged to keep the father informed of Child A's "treatment" was from the date of the making of the primary orders on 9 June 2015 to 30 July 2014.
44Dr Metta had hypnotherapy sessions with Child A on 7 June 2014 and August 2014. The outcomes of the sessions appear to have been positive from Child A's point of view.
45I am not satisfied that the father has demonstrated that the mother intentionally failed to comply with paras 3, 7 and 9 of the primary orders as asserted in alleged contravention #1. Nor am I satisfied that the father has demonstrated that the mother made no reasonable attempt to comply with those paragraphs during the relevant period. It is clear, however, that the father was aware that Child A was to see Dr Metta on 7 June 2014 before the relevant appointment: see, for example, FA1, annexure 2.
46Alleged contravention #1 will be dismissed.
Alleged contravention #2
47The primary orders were made on 9 June 2014. This was during Term 2 of 2014. The first school holidays following the making of the primary orders were from 5 July 2014 to 20 July 2014. According to para 5(g) of the primary orders, Child A was to spend time with the father from 5 p.m. on the last day of term (being Friday, 4 July 2014) to 5 p.m. on the middle Saturday of the holidays (being Saturday, 12 July 2014).
48I am satisfied that, at the commencement of the contact period, Child A advised the father that contact had to end early (on the Thursday instead of the Saturday). She told the father that the mother proposed to take her to [Town B] on the Friday (11 July 2014) to spend time with her stepfather – being the mother's former husband. Child A added that she was expected to do her washing between returning from contact with the father on the Thursday and travelling to Town B on the Friday.
49The father contacted the mother by text message on Tuesday 8 July 2015 to query these arrangements. The mother confirmed them (or very similar arrangements): see FA1, annexure 1. The mother was unapologetic and accusatory, suggesting that the father wanted to "hold [Child A] hostage against her will".
50In MA1, the mother asserted that she had a reasonable excuse for not complying with the order. She spoke of her intention to collect Child A a few hours early on the Saturday so that she and Child A could reach Town B before nightfall. She also spoke of Child A telling her before and during the contact period (via Facebook) that she did not wish to spend the entire contact period with the father. She alleged that Child A was "insistent that she come home" on the Thursday "because she has a phobia about the sanitary condition of her father's place". It is apparent from annexure 1 to MA1, however, that the mother asked Child A if she wanted to come home early. Her first text message to Child A on 8 July 2014 reads as follows:
You sound a bit down on Facebook. Is everything ok. Did you want to come home earlier.
51In a later text message on 8 July 2014, Child A told the mother that the father had said she could come home early. I am satisfied that the father said no such thing. Moreover, I am satisfied that the mother well knew (from past experience) that the strong likelihood was that the father had not said that Child A could come home early.
52I do not accept the mother's evidence regarding the alleged contravention (save for the accuracy of text messages or other documents attached to the parties' affidavits or otherwise tendered at the hearing). I am satisfied that the mother's attitude to the curtailment of the contact period was reflected in the text messages comprising FA1, annexure 1. I find that she made no genuine attempt to persuade Child A to remain with the father for the whole of the contact period and that she gave no weight to the primary orders or her obligations pursuant to them. Further, I find that she made no attempt to discuss the subject reasonably and constructively with the father. As she indicated in her closing submissions, she could not be bothered trying to deal with the situation. Her attitude to the father is as I have described elsewhere in these Reasons. Just as she was defiant towards the Court at times during the hearing, so she was defiant towards the father on this occasion.
53I find contravention #2 proved, and find that the mother did not have a reasonable excuse for the contravention. It was wilful and, to a significant extent, spiteful.
Alleged contravention #3
5429 August 2014 was a Friday. Pursuant to para 5(a) of the primary orders, Child A was to spend time with the father from 5 p.m. on that day to the commencement of school on the following Monday.
55In a text message exchange between the parties commencing at approximately 10.30 a.m. on 29 August, the mother advised the father that Child A was "at a friend's house" and that he would have to collect Child A "a bit later", without specifying the time. She later advised the father that Child A would not be home until "8.30-ish": see FA2, annexure 1.
56When the father asked for the telephone number of the parents of Child A's friend, the mother failed to respond. In the end, the father was obliged to collect Child A from the mother's home at 8.30 p.m.
57In MA2, the mother said that Child A asked if she could have a sleepover at her friend's home on the night of Thursday, 28 August 2014. The mother's intention was to collect her from her friend's home "after work" on the following day: Friday, 29 August 2015. At [11.2], the mother deposed:
On 29 August 2014 I received a text message from [[Child A]] advising of a time change. She said her friend's father was taking them out to dinner and she would be back home around 8 p.m.
58The mother made no effort to direct or attempt to persuade Child A to be home by 5 p.m. She gave no weight whatsoever to her obligations pursuant to the primary orders. She did not attempt to speak to the parents of Child A's friend, and even alleged that she did not know how to contact them. She did not want the father to collect Child A from her friend's home because she asserted that Child A was embarrassed by the father's appearance and did not want him to come into contact with her friends.
59The mother deposed that she "felt the father was being too rigid in insisting on the 5 p.m. pick up". I do not agree. As the mother well knew (because she had been advised by various judicial officers, and conceded that she had been so advised), the entire purpose of putting in place carefully defined orders for contact was to avoid disputes of this nature and to prevent one party from acting unilaterally.
60I am satisfied that the mother intentionally failed to comply with para 5(a) of the primary orders on this occasion. Alternatively, she made no reasonable attempt to comply with the provision. She well understood her obligations pursuant to the primary orders – relevantly, that the father's weekend contact period was to commence at 5 p.m. on 29 August 2014. She provided no reasonable excuse for contravening the order. She endeavoured to suggest that her failure to comply with the orders on this occasion was somehow necessary to protect Child A's mental, psychological or emotional health. I am far from satisfied that it was. I find that her actions reflected no more and no less than her wilful and petulant refusal to abide by orders that are not entirely to her satisfaction and her festering resentment of the father's determination to remain involved in Child A's life. The mother has assumed for herself the role of Child A's confidante and advocate, and she is fiercely protective of her where the father is concerned. She is considerably less vigilant where others are concerned (as is apparent from this incident and from an incident which occurred on 2 August 2015 – which resulted in Child A getting lost, having to walk for approximately two hours along [Highway A] and eventually meeting a stranger who allowed her to ring her mother: see MA2 at [33]-[34]).
61I find contravention #3 proved, and find that the mother did not have a reasonable excuse for the contravention. The mother's attitude to the father and to her obligations pursuant to the orders was dismissive and presumptuous.
Alleged contravention #4
6212 September 2014 was a Friday. Pursuant to para 5(a) of the primary orders, Child A was to spend time with the father from 5 p.m. on that day to the commencement of school on the following Monday.
63On 11 September 2014, the mother asked the father if he would collect Child A at 11 a.m. on Saturday, 13 September 2014 because Child A wanted to go to a youth group on the Friday evening. The father was not prepared to change the contact arrangements because he had made plans for the whole of the Saturday and felt that he could not, or should not be obliged to, change them. He proposed to collect Child A after youth group.
64In text messages exchanged between the parties, the mother made it clear that she did not propose to insist upon Child A going with the father after youth group. For example, she wrote:
… She does not want to come over after youth. She was getting anxious when I talked to her about it. I am not going to force her if it is causing her stress. She feels more comfortable about Saturday instead.
65When the father insisted that the orders be complied with, the mother eventually responded:
I would like [[Child A]] to be in a good mental space when she sees you and not anxed (sic). So my decision is for her to see you tomorrow when she is in a better state of mind.
66In MA2 and her oral evidence, the mother suggested that she had made a genuine effort to compromise with the father in relation to handover arrangements. I am not satisfied that she did. I have already discussed the mother's attitude to the orders, and to her obligations pursuant to them. I am satisfied that the mother intentionally failed to comply with the relevant order or, alternatively, that she made no reasonable attempt to comply with the order. I am also satisfied (for the reasons already given) that she understood the obligations imposed upon her by the primary orders and that she had no reasonable excuse for failing to comply with them.
67I find contravention #4 proved, and find that the mother did not have a reasonable excuse for the contravention. Once again, mother's attitude to the father and to her obligations pursuant to the orders was dismissive and presumptuous.
Alleged contravention #5
68The Term 3 school holidays in 2014 commenced on Saturday 27 September and concluded on Sunday 12 October. Pursuant to para5(g) of the primary orders, Child A was to spend the first week of the holidays with the father (from 5 p.m. on Friday 26 September to 5 p.m. on Saturday 4 October).
69The contact period began as planned. On Thursday 2 October 2014, however, the father arrived home from work to find that Child A had "disappeared". Her bag and her clothes were still in her room. The father's present wife had been ill and had not seen Child A all day. The father's adult son, who lives with the father and his present wife, could not be contacted. The father then made repeated calls to the mother, which were unanswered. He eventually called the police.
70Some time later, the father was able to contact his son – who advised him that the mother had collected Child A from the father's home earlier in the day (when the father was at work). Annexures 3 and 4 to FA2 reveal the father's attempts to telephone the mother between approximately 4.15 p.m. and 6.30 p.m. on that day and the subsequent text message exchange between them.
71Part of the text message exchange is as follows:
6.40 p.m. (father to mother): … This is wrong what you have done. Please call me. I want [[Child A]] returned tonight.
6.52 p.m. (mother to father): [[Child A]] told me she spoke to you yesterday that she was leaving today. [Mr D] [the father's son] was home when I picked her up. She is covered in flea bites around her ankles. She has a friend over for a sleepover.
7.49 p.m. (father to mother): She mentioned she might be going home sometime early and she was told no. She also mentioned meeting her boyfriend at 6 p.m. No one had seen her since last night. [Mr D] has been asleep and wasn't answering phone. You have no right to come to my home and take her away without my permission or an order of the court and worry us sick. This is despicable. The police were trying to contact you.…
10.06 p.m. (mother to father): I have not received any phone calls from the police. I have been with my friends between 6 and 8 p.m. They are my witnesses that I have no calls from them. Also [Child A] told me she spoke to her boyfriends parents about meeting him and his parents at the shops. But she did not follow through with the arrangements. [Child A] said she wanted to come home because she does not feel comfortable around you and [Mrs Hocking] [the father's present wife] arguing all the time. She says she spends most of her time in her bedroom. [Child A] is 14 ½ and I believe she is at an age when she should be able to have a say about contact.…
72The mother's evidence was that she maintains regular contact with Child A when she spends time with the father. She said she received a telephone call from Child A on 1 October 2014, during which Child A said that she wanted her to collect her and take her home. She said that she told Child A to check with the father and did not take the matter any further.
73In MA2 at [12.1], the mother deposed as follows:
On Thursday 2 October 2014, [Child A] called me at work in the morning and asked me to pick her up after work. I asked her if her dad had agreed to it and she said she had spoken to him the night before and it was all good. I collected her after work around 3 – 3.30 p.m. believing she had her father's permission to come home. I knocked on the door and [Child A] came out. I didn't see [Mrs Hocking] or [Mr D] but didn't think anything of it. [Child A] then arranged for a sleepover with a friend at my place. The father asked for her for the Friday and I ask [Child A] to go but she still had the sleepover and said she couldn't. I thought [Child A] was being truthful and it was not an intentional breach on my part of the orders.
74I do not accept the mother's evidence that she "thought Child A was being truthful" and find that she well knew that the father had not agreed to Child A being collected early. Further, I find that the mother could have and should have checked with the father if Child A had in fact told her that she had permission to come home early. I am satisfied that the mother made no attempt to contact the father because she well knew that he would not approve of contact being terminated in this manner. Further, I am satisfied that the mother deliberately arranged for Child A to have a sleepover at a friend's home, and deliberately went out with friends and then failed to respond to phone calls and messages from the father after he returned home that afternoon, in order to present the father with what amounted to a fait accompli – in other words, to thwart any possibility of the father resuming care of Child A that evening.
75I accept that Child A may have been bored at the father's home and that she was more than content to be collected by the mother prior to the end of the contact period. However, that does not begin to comprise a reasonable excuse for the mother's disregard of her obligations pursuant to the primary orders.
76I have already discussed the mother's attitude to the orders, and to her obligations pursuant to them. I am satisfied that the mother intentionally failed to comply with the relevant order. I am also satisfied (for the reasons already given) that she understood the obligations imposed upon her by the primary orders and that she had no reasonable excuse for failing to comply with them.
77I find contravention #5 proved, and find that the mother did not have a reasonable excuse for the contravention. In this instance, mother's attitude to the father and to her obligations pursuant to the orders was obstructive and truculent, and her behaviour was reprehensible. I accept the father's evidence that he was "worried sick" when he could not locate Child A.
Alleged contravention #6
78The Term 1 school holidays in 2015 commenced on Friday 3 April and concluded on Sunday 19 April. Pursuant to para 5(g) of the primary orders, Child A was to spend the first week of the holidays with the father (from 5 p.m. on Friday 3 April to 5 p.m. on Saturday 11 April).
79The father's contact period covered the Easter break: Friday 3 April 2015 was Good Friday.
80The father recognised that Easter was a special occasion not dealt with specifically in the primary orders. He contacted the mother on 25 March 2015 to ask her if she wished to discuss arrangements for Easter. She responded that she had already made arrangements for the relevant period: she proposed to take Child A to Town B during the first week of the holidays. She also added that: "The second week Child A would be with you."
81The parties communicated further about the subject, but no agreement was reached.
82At approximately 6.30 a.m. on 2 April 2015, the father sent the following text message to the mother:
I am supposed to pick [[Child A]] up today at 5 p.m. I get in at 7 from site so I can pick her up at 8 or [Mrs Hocking] can come get her.
83Mrs Hocking is the father's wife.
84The father sent two further text messages to the mother, the second being (in his words) "stern and strong … advising her of the consequences of her actions". The mother then responded, saying that she had left her mobile phone at home and that she had just arrived back from work. She added:
… I did discuss Easter with you last week!
85The parties then exchanged further text messages in which the mother said, among other things, that she had informed the father of their plans and that he had chosen not to discuss the matter with her. As pressure mounted on the mother to explain her actions, she said that Child A was refusing to go with the father and that she (the mother) was "caught in the middle": see MA3, annexure 2.
86I am satisfied that the mother made arrangements for the first week of the holidays without consulting the father beforehand. I find that she did not care whether the father might disagree with those arrangements. I reject any suggestion that some form of agreement or implied agreement was reached between the parties regarding arrangements for the first week of the holidays. Knowing that his contact period covered the Easter break, the father was prepared to contemplate a change in the contact arrangements – but the mother was not prepared to negotiate.
87I also find that the mother made no attempt to encourage or persuade Child A to spend the first week of the holidays with the father. The mother had no intention of altering the arrangements that she had unilaterally put in place.
88I have already discussed the mother's attitude to the orders, and to her obligations pursuant to them. I am satisfied that the mother intentionally failed to comply with the relevant order. I am also satisfied (for the reasons already given) that she understood the obligations imposed upon her by the primary orders and that she had no reasonable excuse for failing to comply with them.
89I find contravention #6 proved, and find that the mother did not have a reasonable excuse for the contravention. As was the case in relation to contravention #4, the mother's attitude to the father and to her obligations pursuant to the orders was dismissive and presumptuous.
Alleged contravention #7
9024 April 2015 was a Friday. Pursuant to para 5(a) of the primary orders, Child A was to spend time with the father from 5 p.m. on that day to the commencement of school on the following Monday.
91Saturday, 25 April 2015 was Anzac Day.
92In response to a text message from the father on Friday morning, the mother wrote:
… [Child A] is going to a birthday party on Saturday! Her friends Mum is picking her up and dropping her off from my house! She does not want to go to contact until Saturday afternoon!
93The father then proposed alternative arrangements, pursuant to which Child A could attend the birthday party from his home.
94Further text messages were exchanged between the parties, among which was a request from the father for the mother to provide him with the contact details for the parents of Child A's friend.
95The mother then invited Child A to communicate directly with the father, who informed the father by text message that she did not wish to spend time with him that weekend. Child A also said that she did not know that it was the father's contact weekend.
96In keeping with his personality as I have described it elsewhere in these Reasons, the father then responded:
[[Child A]] if this is you. If you talk to me I am prepared to make arrangements around contact but you need to talk to me. You have to obey the orders and if you don't, it's your mother's fault or responsibility. She gets in trouble for your bad behaviour or refusal to cooperate. She not you. The judge made it very clear last time and had her in tears. This is you doing it.
You say it is your choice but your refusal to obey your mum could get her in jail, heavily fined or you sent to live with me permanently. Your behaviour is your choice. Cooperate with your mum and I and we will be flexible. If not, as parents we will take action.
97The father was cross-examined by the mother about this message. He admitted that it was "very brutal and to the point". He endeavoured to justify his decision to send the message as follows:
… If her behaviour reaches a certain point where she is putting other people in danger or other people and talking to her as an adult, like what she wishes to be, it was laying it on the line to her very clear… This was trying to say to her: "Look, we are playing for sheep stations here". This is not simply a matter of somebody trying to stop you doing what you want to do; this is serious stuff.
98When the mother suggested that he was blaming Child A for the mother's actions, and for the court's response to those actions, the father said:
I am putting her responsibility for her behaviour back on her.…
I accept it's not going to be good for my relationship with [Child A], but my relationship with [Child A] is as a parent – and as a parent you have to do make decisions that aren't popular with your children.
I could have worded the message better but I had to… put to her quite succinctly that she was messing everybody around and it is the same if she had been shoplifting or she had done something else equally bad that would have reflected on us.
99The father endeavoured to suggest that the mother had "brought Child A into the dispute" when she gave her phone to Child A to communicate with the father. He accepted, however, that the mother had not raised anything about court procedures or judgments and that she had not used threats or intimidation; she had simply allowed Child A to discuss the subject of contact with the father.
100Not surprisingly, Child A's response to the father's text message was as follows (minor grammatical errors corrected):
You're the one getting her in trouble. You're the person making my mum cry. She has done nothing wrong but to protect her child. Why is it so hard for you to understand I don't like you, your actions, your judgments. Why is it so hard for you to understand the meaning (of) no contact. Why I don't want contact is because I have a life, friends, family etc. I don't need to waste my time on being unhappy at contact. Can't you see that? A true father would understand (his) child's feelings, not force them to do something to make them sad. A father loves a child, not puts them in pain. A father cares about the child, that's why he puts the child first. I have put up with your needing contact and court crap and I have had enough. Stop dragging me into… I. do. not. want. contact.
g)to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
h)to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
3)If a court varies or discharges … a community service order …, the court may give any directions as to the effect of the variation or discharge that the court considers appropriate.
4)A court must not make an order imposing a sentence of imprisonment on a person under this section in respect of a contravention of a child maintenance order made under this Act unless the court is satisfied that the contravention was intentional or fraudulent.
5)A court must not make an order imposing a sentence of imprisonment on a person under this section in respect of —
a)a contravention of an administrative assessment of child support made under the Child Support (Assessment) Act; or
b)a breach of a child support agreement made under that Act; or
c)a contravention of an order made by a court under Division 4 of Part 7 of that Act for a departure from such an assessment (including such an order that contains matters mentioned in section 141 of that Act).
6)An order under this section may be expressed to take effect immediately, at the end of a specified period or on the occurrence of a specified event.
7)When a court makes an order under this section, the court may make any other orders that the court considers necessary to ensure compliance with the order that was contravened.
125It is important to note that a court may only make an order under s 205SB(2)(a), (d) or (e) if it is satisfied beyond reasonable doubt that the grounds for making the order exist: see s 205F(3).
126If the current contraventions were to be regarded as more serious contraventions (as opposed to less serious contraventions), I would have concluded that the most appropriate order to make in the circumstances would be to fine the mother pursuant to s 205SB(2)(d). I am aware, however, that the Court can only impose a fine if it is satisfied beyond reasonable doubt that the grounds for making the order under s 205SB(2)(d) exist.
127For the sake of the exercise, I have revisited the evidence provided by the parties in relation to the current contraventions and my discussion of those contraventions above, together with the other findings set out in these Reasons (including my findings regarding the parties themselves). I am satisfied that the current contraventions have been proved beyond reasonable doubt. Indeed, I am satisfied that the contraventions have been proved beyond reasonable doubt even if I were to regard the father as having the burden of proving – to that standard – that the mother did not have a reasonable excuse for the current contraventions. Put another way, I am satisfied that the following "elements" have been established beyond reasonable doubt in relation to each of the current contraventions:
a)that the mother contravened the primary orders within the meaning and contemplation of s 205C; and
b)that the mother did not have a reasonable excuse for the current contraventions within the meaning and contemplation of s 205E, or otherwise.
128As discussed above, however, I am not satisfied beyond a reasonable doubt –
a)that the current contraventions comprise "more serious contraventions";
b)that it is more appropriate to deal with the current contraventions under Subdivision 6 than under Subdivision 5; and
c)that the imposition of a fine or fines is the only, or only appropriate, disposition available to the Court.
129Although I have not fined the mother in the present proceedings because I have concluded that the current contraventions should be dealt with under Subdivision 5 and not Subdivision 6, I would observe that the precise or preferred approach to exercising the Court's powers under Subdivision 6 does not appear to have been authoritatively determined. Relevantly, the applicability of certain sentencing principles remains unclear – at least in relation to sentencing options other than imprisonment: see, for example, Dobbs & Brayson (2007) FLC 93-346, McClintockv Levier (2009) 41 Fam LR 245; see also Langer & Griffin [2013] FamCAFC 170, where the Full Court said at [55]:
... [Nowhere] in his Honour’s reasons does he indicate why a sentence of six months is appropriate, nor did he make reference to comparable sentences .... We further note that he did not address any of the well known and well accepted matters that are seminal considerations to the sentencing procedure such as an assessment of the objective seriousness of the conduct, general or specific deterrence, rehabilitation, mitigation or aggravating factors. To fail to even mention them reflects in our opinion a scant regard for the liberty of the citizen and a failure to appreciate the purposes for which sentences of imprisonment are imposed.
130Now is not the time to discuss sanctions or sentencing options available under Subdivision 6; nor is it appropriate to discuss the applicability or otherwise, or even the relevance, of the sentencing principles set out in s 6 of the Sentencing Act 1995 (WA). Suffice it to say that considerations such as the seriousness of the relevant conduct, aggravating and mitigating factors, the need to have regard to the totality of sentences or penalties, the protection of the community and rehabilitating the offender seem to be of far greater significance than deterrence (whether general or specific). Indeed, deterrence is only mentioned once in the Sentencing Act 1995 (WA): in s 90 in the context of a sentence for life imprisonment for murder. Rehabilitation is not mentioned directly in s 6, but is referred to elsewhere in the Sentencing Act 1995 (WA), in the context of community based orders (including a community service requirement), intensive supervision orders and conditional suspended imprisonment. Taking all these factors into account (although ignoring deterrence for current purposes) I would have formed the view that a fine of $100 in respect of each of the current contraventions is appropriate. In other words, if the current contraventions could properly have been dealt with under Subdivision 6 of FCA, I would have imposed on the mother a total fine of $500.
131Exercising the powers available to the court under s 205SB(7), I would also have required the mother to attend –
a)the Mums and Dads Forever program; and
b)an appointment or series of appointments with a family consultant for the purpose of educating her regarding the nature and extent of her obligations pursuant to the primary orders and the unhelpfulness of maintaining her current expressed attitude to those obligations.
132Finally, I would have varied the primary orders in the manner described below.
Variation of the primary orders
133Section 205G deals with the Court's power to vary the primary orders in the context of contravention proceedings. The "default" position (as it were) is that the Court does not have power to vary the primary orders unless proceedings seeking such variation have been brought. Further, if the Court concludes that it has power to vary the primary orders, it must regard the best interests of the child as the paramount consideration (see s 66A), and take into account the primary and additional considerations referred to in s 66C, when exercising that power.
134Notwithstanding the default position under s 205G, the Court retains power, in certain (undefined) circumstances, to vary the parenting orders when it is necessary to do so. Section 205G(3) is as follows:
This section does not limit the circumstances in which a court may vary a primary order.
135I propose to vary the primary orders. To leave them in their present form would not be in Child A's best interests. The only variation I am minded to make, however, is to impose a condition that all contact be subject to Child A's wishes.
136I do not intend to traverse laboriously all the requirements of s 66C. Not all of the considerations in that section are relevant or significant. I remind myself, however, that Child A's best interests comprise the paramount consideration in any determination as to whether or not the primary orders should be varied.
137The primary orders provide that the mother is to have sole parental responsibility for Child A, although she is required to consult the father in relation to any decision to be made about issues concerning Child A's care, welfare, and development of a long-term nature. The mother must also make a genuine effort to come to a joint decision with the father about such issues. If the parties are unable to come to a joint decision, the mother's view will prevail.
138Child A is now 15. I am satisfied that her wishes are extremely important.
139Child A has a close and loving relationship with the mother. That is not to suggest that the relationship cannot also be volatile. She has lived all her life with the mother and there is no realistic possibility of orders being made to the effect that she should live with the father.
140Child A has a meaningful relationship with the father. That relationship will continue whether or not the primary orders are varied. As is apparent from the events discussed in relation to contravention #7, however, that the father's insistence upon Child A spending time with him in accordance with the primary orders is more likely to put his relationship with Child A at risk than a variation to the primary orders pursuant to which contact is made subject to Child A's wishes.
141There has been a long history of Child A being exposed to her parents' acrimonious relationship. In spite of the acrimony between them, however, the father has continued to see and spend time with Child A – although not without significant difficulty. To put it bluntly, however, the game is no longer worth the candle. In my opinion, Child A's emotional and psychological health demands that the pressure be removed from her. Paradoxically, her relationship with both parties is likely to improve if contact arrangements contained in the primary orders are made subject to her wishes.
142I reiterate that Child A's views in relation to contact with the father should be given considerable weight. Although she is a teenager with her own problems, I am satisfied that she is sufficiently mature to decide contact arrangements for herself. Similarly, I am satisfied that she has an adequate level of understanding of the likely impact of such decisions on her parents and on herself. At the same time, she is sufficiently mature to deal directly with the father regarding contact arrangements. In doing so, she is less likely to play one parent off against the other or to make misleading statements to either of them.
143I am satisfied that Child A has a close relationship with the father's son, Mr D, and a close and loving relationship with her half-brother. Her relationship with the father is strained due to the effect of her parents' long-running dispute regarding parenting issues, including both parties' sometimes confrontational approach to that dispute and the mother's resentment of and lack of respect for the primary orders (and the parenting orders which predated the primary orders). I have discussed the parties' attitude and behaviour towards each other elsewhere in these Reasons.
144I am satisfied that Child A has a close and loving relationship with the mother and her half-sister.
145The only other consideration of significance relates to whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings regarding Child A. This consideration looms large in the context of the current proceedings. In my opinion, the need to try to prevent the institution of further proceedings involving Child A is urgent and imperative. No other consideration, whether solely or jointly with other considerations, comes close to counterbalancing this need.
Orders
146On the assumption that the mother is prepared to enter into the bond referred to above, the orders I propose to make are as follows:
On the contravention applications filed by the father on 25 August 2014, 16 October 2014 and 23 June 2015 coming before the Court, upon hearing the applicant father and the respondent mother in person, and upon:
(1)the Court being satisfied that the mother has committed contraventions of an order under the Family Court Act 1997 (WA) ("FCA") affecting children – being contraventions of paragraphs 5(a) and (g) of the orders made in the Magistrates Court, 150 Terrace Road, Perth on 9 June 2014 ("the Primary Orders");
(2)the mother not having proved that she had a reasonable excuse for the said contraventions;
(3)no court having jurisdiction under the FCA having previously made an order in respect of a contravention by the mother of the Primary Orders; and
(4)the Court being satisfied that Subdivision 5 of Division 13 of Part 5 of the FCA applies to the contraventions referred to in 1 above,
IT IS ORDERED THAT:
(5)Pursuant to section 205O(1)(a) of the FCA, the mother must:
(a)attend and complete, as soon as practicable, the Anglicare WA Mums and Dads Forever program (“the Program”);
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the Program to the father.
(6)Pursuant to section 205P(4)(a) of the FCA, the Director, Family Court Counselling and Consultancy Service be requested to arrange for the mother to attend an appointment (or, if necessary, a series of appointments) with a family consultant ("the nominated family consultant") on a date or dates to be advised in writing by the Family Court Counselling and Consultancy Service ("the Appointments") for the purpose of
(a)explaining to and educating the mother regarding the nature and extent of her obligations pursuant to the Primary Orders and these orders, and the unhelpfulness of maintaining her current expressed attitude to those obligations; and
(b)giving the mother such assistance as is reasonably requested by the mother in relation to compliance with, and the carrying out of, the parenting orders.
(7)The Court may direct the nominated family consultant to give the Court a report on such matters relevant to the Appointments above as the Court thinks desirable.
(8)The mother must attend the Appointments in accordance with the recommendations of the nominated family consultant from time to time.
(9)Pursuant to sections 205O(1)(d) and 205P of the FCA, the mother must forthwith enter into a bond (in the amount of $500 – but without surety and without security) for a period of one year to:
(a)be of good behaviour; and
(b)strictly comply with all parenting orders made in the Family Court of Western Australia and the Magistrates Court, 150 Terrace Road, Perth (including the Primary Orders and the orders made this day); and
(c)attend the Appointments in accordance with the recommendations of the nominated family consultant from time to time.
(10)The preamble to paragraph 5 of the Primary Orders be varied to read:
Subject to any other agreement between the parties, and subject to [Child A's] wishes:…
(11)Save for the variation of the Primary Orders referred to in paragraph (10) above, the Primary Orders remain in full force and effect.
(12)The said contravention applications otherwise be dismissed.
I certify that the preceding [146] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
9 October 2015
0
2
0