Houston and Houston (No 2)

[2009] FamCA 183

FAMILY COURT OF AUSTRALIA

HOUSTON & HOUSTON (NO. 2) [2009] FamCA 183

FAMILY LAW – CONTEMPT – Contravention of Court orders – Prima facie case conceded – Reasonable excuse under s 70NAE – Credibility of Respondent Mother – Held that the contravention was blatant and long standing – Penalty reserved until final determination of matter

APPLICANT: Mr Houston

RESPONDENT: Ms Houston

FILE NUMBER: BRC 10248 of 2007

DATE DELIVERED: 17 February 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 17 February 2009

REPRESENTATION

APPLICANT: Mr Houston appeared on his own behalf

SOLICITOR FOR THE RESPONDENT: Mr Alley, Solicitor as town agent for Slater & Gordon, Solicitors of Perth appeared for the Respondent Mother

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Shoebridge of Counsel appeared for the Independent Children’s Lawyer

Orders

IT IS ORDERED THAT:

(1)The Mother is found to have contravened Order (3) of this Honourable Court dated 28 February 2007.

(2)The issue of penalty to be imposed upon the Mother be reserved to trial of this matter set down for four (4) days commencing 10.00 am on 27 July 2009 in the Brisbane Registry of the Family Court of Australia.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10248 of 2007

MR HOUSTON

Applicant

And

MS HOUSTON

Respondent

REASONS FOR JUDGMENT

1. On 28 February 2007 Jordan J made orders in the following terms:

   "2.The mother shall have sole parental responsibility in relation to the children. 

   3(a)The children shall spend time with the father for up to four hours or such lesser time as the contact centre can make available each alternate weekend on a Saturday or Sunday as may be accommodated by the contact centre.

   (b)Such time that the children spend with the father shall be supervised.

   (c)The fortnightly time that the children spend with the father shall alternate between [I Contact Centre] and [L] Contact Centre or if [L] Contact Centre is unable to provide such services, such other contact centre in the Brisbane or Gold Coast regions as may be available to accommodate the children.

   4.The mother shall take all steps necessary to secure the provisions of [L] Contact Centre or such other contact centre in accordance with the provisions of paragraph 3(c) hereof.

   5.The mother shall deliver the children to the contact centres at the commencement of each contact period.

   6.The father shall have telephone communication with the children each Wednesday night at 6.00 pm Queensland time with the father to initiate such telephone call and the mother to provide the father with a contact number at all times."

2. I note that the Reasons for Judgment and the orders that Jordan J made were after a five day hearing.  In the course of his judgment, his Honour had this to say at paragraph 59.  He is responding to submissions on behalf of the father that the mother was alienating him from the children by way of retribution or to have Mr M substituted as a father figure in the children's lives.  His Honour said: 

   "Whilst that must remain a prospect to be considered, many aspects of the history would appear to mitigate against that theory.  The mother continued to provide the father with extensive contact during a period of great turmoil when the father's house was raided by the police when his house was suspiciously burnt down on the very same day he was charged with cultivation of drugs and there were substantial legal struggles relating to the provision of DNA and in circumstances where the mother gave a statement against the father to the police which according to the mother resulted in her being subjected to threats made against her and Mr [M].  As Mr Theobold, counsel for the mother, submitted she continued to provide contact in that environment and in doing so she was displaying actions which were not those of a woman determined to use every excuse to withhold the children and embark upon a process of alienation.  It might be thought that after separation, after the altercation, and during the time of these quite significant criminal events, the mother had ample excuse to curtail or withhold contact.  However, in terms of evaluating the mother's motives since separation, it is telling, in my view, to note that she chose not to avail herself of any of those opportunities and rather chose to continue to provide the contact".

3. Paragraph 76 of his Honour's reasons he adverted to Dr G’s observations of the interaction between the children and their father: 

   "I must take account of the various positive relationships between the girls and their father.  At the same time Dr [G] cautions against drawing firm conclusions in relation to such matters, given that abuse and attachment are not mutually exclusive.  Nevertheless, it is appropriate that I take account of the observable reactions between the children and their father which would indicate that they are entirely relaxed and comfortable with him and they do not exhibit any signs of fear or reservation that could provide evidence to support conclusions of abuse".

4. At paragraph 90:

   "The mother has proposed that the parties alternate contact centres between [Northern New South Wales] and Brisbane and that prospect was not resisted by counsel for the father.  Although the mother chose to move to Brisbane and the father will find the task of travelling to Brisbane difficult physically, the focus must remain upon the children.  Under such a regime the children will be required to travel to [northern New South Wales] only once per month rather than fortnightly and this manoeuvre should hopefully resist the children's resistance to that exercise".

5. Subsequent to his Honour's orders the father has seen his three daughters on one occasion and that was the first fortnight after his Honour's orders.  The three children are: N, born in 1999 and twins R and K born in August 2000.  The position is, the father instituted numerous proceedings after the mother left Australia for Ukraine on 15 March 2007.  The father instituted contravention proceedings.  He did it initially by way of an application for final orders but subsequently he filed an application for a contravention in the proper format.

6. There is only one count of contravention.  Objection was taken to its form in that the father claimed the contravention consisted of the mother taking the children to the Ukraine.  It was quite properly pointed out that there was nothing in the orders that precluded that.  Clearly the father's annexed schedule of the final orders sought by him included a declaration that the respondent mother has contravened O 3 made by Jordan J on 28 February 2007, that the children spend time with their father.

7. That was the charge that I put to the mother.  She conceded the facts that there had been no telephone communication and no physical contact from 15 March 2007 until the present time, but she said she had a reasonable excuse.  The father, in the intervening period, has litigated endlessly and has made numerous complaints about the New South Wales Police, the Federal Police, the Chief Justice of this Court about Jordan J’s decision and I gather numerous other Departments over the period.  He has been very determined in his efforts to locate his children.  Numerous location orders have been issued, particularly since it came to the Court's attention that the mother and children had returned to Australia as at May of last year.

8. The mother, quite properly, did not require the father to establish a prima facie case.  It was conceded that once I overruled the legal technical point about the wording of the charge, that it really was a question of the onus shifting to the mother to establish she had a reasonable excuse.  It is abundantly clear that the father has neither seen nor heard from any of his daughters for that period of two years.  Section 70NAE is in the following terms: 

   "Meaning of reasonable excuse for contravening an order".

9. Subsection 1: 

   "Circumstances.   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 sub-s (2), (4), (5), (6) and (7).

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

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

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

10. There was cross-examination on that aspect.  That point is not pressed.  I am more than satisfied the mother fully knew her obligations under the order.  Sub-paragraph 3: 

    "Court to explain obligations and consequences of contravening an order".

11. That relates to a person having an excuse under sub-paragraph 2.  Sub-paragraph 5 deals with: 

    "Contravening an order dealing with whom the child is to spend time with.  A person, the respondent, is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in the person and a child not spending time together as provided for in the order, if –“:

12. This is the critical part:

    (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 a person referred to in paragraph (a)".

13. The father has a working knowledge of the legislation in the period that he has been dealing with it.  He seeks orders pursuant to s 70NBA, Variation of Parenting Order.

    "A Court having jurisdiction under this Act may make an order varying a primary order if:

    (a)the proceedings in relation to the primary order are brought before the Court having jurisdiction under this Act; and

    (b)it is alleged in those proceedings that a person committed a contravention of the primary order and either:

    (i)The Court does not find that the person committed a contravention of the primary order, or

    (ii)The Court finds that the person committed a contravention of the primary order".

14. And then sub-s (2) deals with considerations the Court must take into account before altering a primary order.  I have yet to determine what orders, if any, should be put in place in the future in relation to the children spending time with their father.  The mother was the only witness in her case.  She gave evidence that the property settlement issues were resolved and consent orders were made and that appears from the orders which subsequently issued by his Honour.

15. The time for payment under the property settlement order became due in early March.  There was communication, one infers, from the father to his lawyers, to the mother's lawyers, to the mother.  The mother says that after hearing word that the father was depressed and was too depressed to leave his property to go to the bank to arrange for payment, she became alarmed, knowing how he reacted when he was depressed and, as I understood her evidence, it was at that stage she decided to flee the country.

16. The mother's evidence is that shortly thereafter she contacted the Ukrainian Embassy and arranged to have the three children recorded on her passport.  It is not entirely clear why she did not place the fourth child also on the passport.  The youngest child subsequently travelled to the Ukraine about a week later with her father, Mr M, on an Australian passport.  There is a suggestion in the submissions that it was not until the mother received a phone call from a Officer V, a New South Wales police officer that she finally decided to flee the country.

17. The import of that message, as I understood it, was that unless the mother came to New South Wales to give evidence the interim apprehended violence order would be set aside and the father's guns would be returned to him.  Whether the mother made up her mind then or whether it was at the time of the phone call from her solicitors on 5 March, it does not impact on my findings.

18. The mother was about to flout Court orders made after a five day trial.  She said she intended to leave the country permanently.  She was going to flout the orders on a permanent basis.  She says she had obtained a result at the hearing that was quite unexpected.  She says she was leaving the country because she was fearful of the father, yet she was being offered protection by the New South Wales Police Force of an apprehended violence order and she elects not to pursue that remedy but instead to take the law into her own hands.  There is no country in the civilised world that permits that sort of conduct.

19. On the following weekend, Mr M, the mother's partner, drove the three girls down to northern New South Wales.  On one version of events the mother stayed behind because she was packing up.  On the mother's version now she was too fearful to attend.  Of itself, that was a breach of O 5 of Jordan J orders.  Those orders were that the mother shall deliver the children to the contact centre at the commencement of each contact period.

20. Exhibit 1 is the file from the I Contact Centre.  The file note indicates Mr M’s behaviour was quite out of line.  It is normal for a person to deliver children to a contact centre and then depart the contact centre.  That is why changeovers take place there.  He clearly did not do that.  I shall not read from the incident report, but it presents a very poor image of the behaviour of Mr M on 10 March as the clear aggressor, the person who was behaving inappropriately.

21. I find it difficult to accept that the mother could make all the necessary arrangements to travel overseas with three young children in the space of nine or so days.  She had to get the children's names on the passports.  She had to pack up the house, arrange to shift all their possessions by boat to the Ukraine.  She had to arrange airline tickets, presumably make arrangements for somebody to take over the lease or things of that nature.  There would have been dozens of matters to be attended to.

22. I note in the proceedings that so far as establishing a reasonable excuse is concerned, the onus is on the mother.  She has made no attempt to subpoena Officer V or to subpoena the New South Wales Police records.  She has not attempted to bring Mr M forward by telephone or any other means as a witness.  He has not filed an affidavit in these proceedings.

23. I will return to the guns for the moment.  The guns had been seized, apparently, when the apprehended violence order was first filed back in about 2005.  Some time after that, probably in about 2006, the mother moved to Brisbane with the children and the step-father.  She says she did not feel it necessary to continue to obtain the Apprehended Violence Order.  She said she felt safe in Brisbane.  She was informed, as I clearly stated, that unless she came back to New South Wales to continue to press for that order, the police would have no alternative other than to return the firearms to the father.

24. There is a complete illogicality to the mother's evidence.  The mother says she was aware the father had a sawn off shotgun in his possession and if it was not in his possession it was in his brother's possession.  It did not matter two hoots whether there were four firearms held by the New South Wales Police and whether or not they were going to be returned to the father, he had a firearm in his possession according to the mother and yet it was this piece of information from the police recently relayed, that precipitated the flight from the country.

25. An obvious thing she could have done would have been to attend in New South Wales, contest the proceedings and ensure that the firearms were not going to be returned, if her belief was logical and genuine.  The father says that, in any event, because he had a conviction for cultivation of cannabis, the firearms were not going to be returned to him.  There is no evidence that the mother made the slightest inquiry from anyone in any official capacity to verify what the true position was.

26. I note that the father apparently, in his fairly litigious manner, brought proceedings in the Administrative Determination Tribunal in New South Wales seeking an order for the return of the firearms.  I gather the outcome of those proceedings was unsuccessful.  The father had lived on a farming property in the central coast area of New South Wales for a considerable period of his life.  I find nothing sinister about the fact that he possessed a number of firearms.  It is common for folk on country properties.

27. It is not in dispute, but that it was 15 March the mother left the country.  In about August of that year she came back to attend Mr M’s brother's funeral.  She said in her evidence she returned for five days.  The passport, exhibit 2, would indicate she was here for 12 days.  It is only a minor discrepancy, but it is part of a whole swathe of evidence where the mother's evidence, I find, is inconsistent and/or totally unreliable. 

28. Mr M and the mother had set up a business in the Ukraine.  The business did not prosper.  By February 2008 Mr M had returned to Australia and obtained work in the northern New South Wales area in the district in which his family reside.  The mother returned to Australia in May of that year with the children.  She met up with Mr M.  Whether he purchased the vehicle or she purchased the vehicle is not to the point, together they drove to Western Australia where they have remained ever since.

29. The basis of the mother's reasonable excuse is fear of her personal safety from the father's conduct.  In her evidence, the mother first claimed she had received written threats from the father which caused her to leave and she referred to items which appeared on Facebook.  This was at the commencement of cross-examination by counsel for the Independent Children’s Lawyer.

30. When pressed about such threats the documents were disclosed and it was ascertained that they had not been posted on Facebook until November 2008.  The document in question is authored by the father but the recipient of the message is not clear.  The offending sentence is said to be:

    "I think if [the mother] saw me right now she would blow a fuse.  Either that or I would set a record for the corpse with the highest amount of stab wounds".

31. The mother says this in her answers before me:

    "That that was part of a justification for not complying with the orders".

32. Well the first and obvious comment to make is that that was not posted until 20 months after she first started disobeying this Court's orders.  The second obvious point to make is that on my reading of that it does not consist of a threat.  I interpret it as the father saying that he would be the one being stabbed by the mother.  I accept that the English language is a second language for the mother.  I would be inclined to give the benefit of the doubt to her in certain respects of interpretation of documents and such like, but for the fact that the document she gives as an excuse at the commencement of her cross-examination was a document that has not come into existence until November 2008 and it is a document that has been badly misinterpreted. 

1. The mother agreed in cross-examination there was no communication with her by the father in the period from 28 February until the 15 March.  The father had been seeing the children on a regular basis albeit supervised up until the time of the trial before Jordan J.  No concerns were expressed which would indicate the mother was in such fear that it would be necessary to never comply with his Honour's orders.  In paragraph 50 of her affidavit filed by leave on yesterday's date she says:

   "I was made very aware by [the father] after the orders were made that he did not accept the finding made by his Honour, [the father] was extremely angry and aggressive".

2. That is what she swore in this affidavit document sworn on 13 February, Friday of last week.  There was no communication either written or oral from the father; the other evidence does not live up to proof that he was not accepting of the finding.  She had a message that he was depressed.  The mother relied on the fact that if somehow because she had been a police informer against the father or had provided a statement to the police about the father's cultivation of cannabis that somehow she was at great risk.  Those events occurred in 2005.  The mother could have raised them before the Court and sought sanctuary, protection of State Courts or Commonwealth Courts.  That was not done.  She conceded the father did not know her residential address in Brisbane though at the hearing apparently he found out what schools the children were at.  Presumably the mother could easily have changed schools.

3. The Reasons for Judgment of Jordan J at paragraph 46 records the observations of Dr G, she says:

   "In his appearance before me the father presented well, he was clear and consistent in his denials of abuse and nothing emerged during the course of the limited cross-examination of the father on this topic which gave rise to a concern about the veracity of his testimony".

4. The mother again purports to give as reliable evidence the fact that the father had a personality detachment disorder.  There is only the mother's word on this.  She says the father told her that when he saw a psychologist at some point in time.  This aspect was not explored to any extent.  Presumably that was the time when they were together and the evidence could have been placed before Jordan J, it may have been, but there is certainly no reference to it in his Honour's reasons.  The mother says that her mother told her the father had said he was going to organise a hit-man in Ukraine.  She then refers to an assault incident; a complaint was made to the police in Odessa.  I have considered this material.  I am not prepared to accept the mother's account.  I accept from the limited material that she appears to have been a victim of an assault.  I accept that there appears to have been a complaint to the police.  What I am cynical about and cynical in the extreme is the mother's claims that when being assaulted, the name of the father was used by her assailant.  I note that the complaint to the police was in April 2008.  Mr M was already in Australia and the mother was about to leave Ukraine with the children to return to Australia the following month.  She must have been only too conscious of the fact that proceedings were still on foot in this jurisdiction and that she was in ongoing contravention of the orders of this Court.

5. I make the following observations on the mother's oral testimony.  During the course of the time that she was in the witness box she was at various times argumentative, vague or not responsive.  The Independent Children's Lawyer submitted, "She generally lacked credibility".  I have to say that I adopt that observation.  I understand the mother is on Oxycontin a powerful opiate based painkiller.  I did not explore that aspect as it is not relevant to the issue of contravention.  But just as I have made, I believe, proper allowance for the fact that English is not the respondent's first language, I made allowance for the possibility that she is on Oxycontin.  There is reference to that in the material that has been produced to the Court.  She presented in a somewhat similar manner to litigants in the past who have been on Oxycontin.  I do accept that that would in part explain her presentation.  I accept the force of the submission that her evidence generally lacked credibility.

6. On occasion her presentation was assertive and forceful, at other times offhand and sneering particularly when being questioned by the father.  I looked for any sign from the mother that she exhibited any degree of fear of the father.  None was apparent.  I am not prepared to accept that the respondent has established she had a reasonable excuse for contravening the orders made on 28 February 2007.  I am not prepared to accept her account of events generally.  There are numerous inconsistencies and I do not have to particularise those but there are the obvious ones such as her knowledge and belief that the father had access to a shotgun, and yet the release of further firearms to him was the precipitating event.  It simply does not make sense that if she simply heard from her solicitors that he was depressed that she would as a result of that information determine to not comply with orders and to leave the country permanently.

7. I have to say that there does appear to be elements of a hidden agenda in this matter that have not quite bubbled to the surface and I am not quite sure why.  I do not have to establish a motive for why the mother behaved in the fashion that she did.  I could speculate, I could speculate endlessly, but I do not find it to be particularly helpful.

8. For the reasons given I find the contravention established.  I find the contravention was blatant and longstanding.  What I propose to do at this point in time is move to the issue of what should be the outcome in relation to child related interim orders.

9. I will then turn to the issue of penalty.  I could deal with the issue of penalty first and if anyone at the Bar Table wishes me to adopt that course I will consider it, but it is preferable to make a determination about future arrangements for the children.  I have to say in considering the future arrangements for the children based on events of the past two years, I have little confidence that the mother could be relied on to adhere to any assurances she may be prepared to give to the Court.  I will hear from her, I am not saying I am prejudging the matter, but I have been case managing this matter, I think for in excess of 12 months.  I note when Ms F the Family Consultant made arrangements for the mother to attend as a result of Court orders, she indicated she would not attend until she sought legal advice.  That is not what the orders said.  An appointment was made for the mother, she did not attend.  Another appointment was made for the mother, she did not attend.  She was ordered to appear personally in a Court in Brisbane, she did not attend.  I am wanting to see firm basis, that the mother will honour any assurances that she gives to the Court. 

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate: 

Date:  17 February 2009