HYNE & KINNEAR

[2017] FCCA 1841

FEDERAL CIRCUIT COURT OF AUSTRALIA

HYNE & KINNEAR [2017] FCCA 1841

Catchwords:
FAMILY LAW – Contravention application – long history of litigation between the parties – long and consistent views of the children (now aged 13 and 9) recorded in family reports in 2015 and 2017 of their refusal to spend any time with their Father including following the making of Orders by consent in 2016 for the children to spend time with the Father – acceptance of Mother’s plea of “reasonable excuse” based on children’s strongly held opposition to spending time with the Father – some actions by the Father have been threatening to the Mother and admitted by the Father as designed to hurt her – consistent evidence from a number of family consultants to the effect of the damage to and resistance from the children spending time with their Father – amendment to the April 2016 final Orders in best interests of the children.

Legislation:

Family Law Act 1975, (Cth), ss.60CA, 60CC(3)(a), 70NAE, 70NAF, 70NBA, 70NDA

Cases cited:

Childers v Leslie (2009) 39 Fam LR 379

Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC 91-113

Daly & Campbell (2005) FLC 93-236

Dobbs and Brayson (2007) FLC 93-346

Applicant: MR HYNE

Respondent: MS KINNEAR

File Number: MLC 2404 of 2011

Judgment of: Judge Neville

Hearing date: 14 July 2017

Date of Last Submission: 21 July 2017

Delivered at: Canberra

Delivered on: 11 August 2017

REPRESENTATION

Counsel for the Applicant: Dr J Behrens

Solicitors for the Applicant: Neilan Stramandinoli Family Law

Counsel for the Respondent: Mr G Howard

Solicitors for the Respondent: Watts McCray Lawyers

ON A FINAL BASIS, THE COURT ORDERS THAT:

1. In relation to the three Contraventions alleged in the Application filed by the Father on 17 October 2016 (at paragraphs 6 – 9) regarding the Mother’s contraventions of the final parenting Orders made on 11 April 2016, the Court accepts the Mother’s pleas of admitted with reasonable excuse.

2. The Contravention Application filed by the Father on 17 October 2016 be dismissed.

3. The Final Orders made on 11 April 2016 shall be varied as follows:

   (a)Orders 2.1, 2.2, 2.3 and 3 shall be discharged; and

   (b)The children, X (born: (omitted) 2004) and Y (born (omitted) 2007) (“the children”) shall spend time with their Father in accordance with their wishes.

4. Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.

5. Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.

6. All extant Applications are dismissed and the matter is now finalised and will be removed immediately from the docket.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

MLC 2404 of 2011

MR HYNE

Applicant

And

MS KINNEAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 11^th April 2016, the parties entered final parenting Orders, by consent, in relation to their two children, X (born (omitted) 2004) and her brother, Y (born (omitted) 2007).  Those Orders provided for the children to live with their Mother (who now lives in Sydney), and to spend specified time with their Father, who now lives on the (omitted), Queensland.  Both parents have re-partnered.  The Father has two young children with his current Wife.

2. To speak generally, the Father complains that the Mother has been preventing the children spending time with him, and more generally is not encouraging (and actively discouraging) the children’s relationship with the Father.

3. An extensive litigious history preceded the 2016 Consent Orders.  That history included the preparation of 6 family reports between October 2011 and 30^th June 2017.  Each of those Reports was admitted into evidence (Exhibits B1 – B6).  The principal purpose of these Reports being so admitted was essentially to provide significant historical and other context.  They also provide, to the degree apposite, relevant comparative material, including views of the children.

Contravention Application

1. The Father filed a Contravention Application on 17^th October 2016 alleging the following contraventions of the final parenting Orders made on 11^th April 2016:

   a)9^th September 2016 – “The Respondent without reasonable excuse refused to allow myself visitation with my children.”

   b)1^st October 2016 – “The Respondent without reasonable excuse refused to allow myself time with my children X and Y.”

   c)14^th October 2016 – “The Respondent has not sent children’s passports to the court as ordered.”

Minute of Orders Sought by Applicant Father

1. The Father filed an Amended Minute of Interim Orders Sought in Court on 14^th July 2017.

2. That Minute of Orders Sought was as follows:

   1) That the parties forthwith do all things and sign all documents as may be necessary to enrol the parties and the children, X born (omitted) 2004 and Y born (omitted) 2007 (“the children”) into urgent reportable therapeutic family counselling with Dr C or if not available Ms M both of The Relationspace in (omitted), Sydney with a view that such family counselling is being sought to encourage the children to spend time with the father.

   2) That for the purpose of Order 1 above:

   a) Each party shall forthwith and no later than 7 days from the date of these Orders, take steps to contact The Relationspace to arrange any initial intake sessions;

   b) Each party shall do all things necessary to attend any organised counselling sessions and shall facilitate the children’s required attendance;

   c) Each party shall follow all reasonable directions and recommendations of the counsellor undertaking the therapeutic counselling including in relation to:

   i) Obtaining information from the parties’ and/or the children’s respective psychologists or counsellors if applicable;

   ii) The recommended care arrangements for the children to spend time with and/or communicate with their father; and

   iii) Participation in any courses recommended to either party of the children.

   d) The Father shall pay the costs of the family therapeutic counselling.

   3) That with the leave of the Court, the parties shall provide to The Relationspace a copy of:

   a) The Orders made by the Court on 2 June 2017;

   b) The Memorandum to Court of Ms M dated 31 May 2017;

   c. The Orders dated 11 April 2016; and

   d) The Memorandum to Court of Ms M dated 30 June 2017.

   4) That pursuant to Rule 8.01 of the Federal Circuit Court Rules 2001, the matter be transferred to the Sydney Registry.

   5) That the matter be relisted on the request of either party after the release of a report from The Relationspace. 

   6) That pursuant to Section 68L of the Family Law Act 1975 (Cth), the Court appoint an Independent Children’s Lawyer through the NSW ACT Legal Aid Commission as soon as is practicable and the Independent Children’s Lawyer is requested to meet with the children with a view to encouraging them to spend time with their father for a period of no less than 4 hours on a date and time to be agreed between the parties but prior to the July 2017 school holiday contact period.

   7) That the Father’s Contravention Application be adjourned to a date convenient to the Court.

   8) Such further or other Orders as the Court deems appropriate.

Minute of Orders Sought by Respondent Mother

1. The Mother filed a Minute of Orders Sought on 10^th July 2017.

2. That Minute of Orders Sought in relation to the April 2016 final Orders was as follows:

   1) That the Orders of 11 April 2016 shall be varied as follows:

   1.1) Orders 2.1, 2.2, 2.3 and 3 shall be discharged; and

   1.2) The children shall spend time with their father in accordance with their wishes.

   2) That the father's Application for Contravention filed 17 October 2016 be dismissed.

   3) That the matter be removed from the pending cases list.

Evidence of the Parties

1. Both parties gave relatively brief oral evidence in relation to the Father’s Contraventions alleged and the Mother’s admission of them but with reasonable excuse.[1]

   [1] See s.70NAE (this section provides the definition of “reasonable excuse”) and s.70NDA (this section provides for the situation where a contravention is established but with “reasonable excuse”).

2. The Father’s evidence, in summary form, was as follows:

   (a)He accepted that the children had said to the family consultant that they did not wish to see him.  But he did not accept that they did not actually want to spend time with him.

   (b)Nor did he accept that spending time with him, if they had said they did not wish to do so, would potentially cause them harm and be counter-productive.  He said that under the right conditions it would be beneficial for them, and that with professional assistance his relationship with the children could be rebuilt.  He did accept that the children had been exposed to violence between their parents, notably at change-over.

   (c)The Father acknowledged that he had sent the Mother various derogatory comments.  He said that he did not “think about” the Mother because the issue [now] was about the children.  But he also confirmed that if, in the future, the children asked about their Mother’s behaviour, he would tell them.[2]

   (d)He confirmed that he sent the Mother an email, dated 3^rd July, which was disparaging and hurtful towards the Mother.  He said he was “upset” at the time he sent it.[3]  He also confirmed that a number of matters he raised with the Mother about her were untrue.

   (e)The Father confirmed that he sought a Recovery Order which would have had the effect of removing the children from their primary carer.  He said he sought such an Order because he was not aware of the “environment” in which the children were living.

   (f)He said he accepted that the children love their Mother and that they do not have a negative view of her.  From the most recent Family Reports before the Court (Exhibits B5 & B6), the Father confirmed that, as set out in them, the children know that the Father has a negative view of the Mother.

   (g)The Father confirmed that his correspondence with the Mother contained comments by him that he would not stop “ever” taking action to secure his time with the children.  He said that this was meant to refer to him continuing to seek redress through the Court to secure time with the children.  It was not here relevantly discussed whether the constant litigation was considered by the Father to be in the best interests of the children.  He rejected the contention that his intention was to remove the children from the Mother’s care.

   (h)He confirmed that in other text/SMS messages (formally tendered) to the Mother he wanted to hurt her by the comments about her [allegedly] working in a (omitted) strip club.  He acknowledged that this conduct was wrong.[4]

   (i)He said he had not paid child support, until very recently, because he thought that the Mother might spend the money on drugs.[5]

   [2] See the reference to the relevant email in which he wrote this, discussed in his oral evidence (T 18), but later in his oral evidence, he said that he would not do so (T 19).

   [3] Collections of emails between the parties became, respectively, Exhibits A & A1.

   [4] See T 23.

   [5] T 24.

3. I might observe here that while the Father was a reasonably convincing witness in his oral evidence, it was quite difficult to assess whether his intense focus on the children was evidence of a genuine and lasting conversion (so to speak) to be child-focussed given the documentary evidence of his very bitter and antagonistic relationship with the Mother.  A number of not too long ago emails to the Mother exhibited a concerning degree of intent to injure her emotionally, but which he passed off as him being angry at the time.  Such evidence could readily be taken as indicating either or both of him not being as concerned about the children as asserted at the hearing, and or that his emotional regulation left something to be desired.  Moreover, the Father’s more recent attempts to communicate with the children do seem to be surprisingly recent, with little evidence of more consistent and regular attempts by him to do so.

Evidence of Respondent Mother

1. The Mother’s evidence, summarised, was as follows:

   (a)The Mother said that she had attempted to comply with the Consent Orders of April 2016.

   (b)She said that she considered all correspondence and/or communication with the Father always to have an ulterior motive, and in particular, are attempts by the Father to manipulate and intimidate her.  She said that “she knew him”, inferring that she knew his “ways” of operating.  She said that in his correspondence he was always “setting her up to fail.”

   (c)The Mother also confirmed that she knew her obligations under the Consent Orders and tried, in vain, to get the children to spend time with their Father.  The more she tried, she said, the worse it got.  She said that the children were adamant that they did not wish to spend time with their Father.

   (d)She confirmed that in the past, the children were separated in their Father’s house, in circumstances where they very much wanted to remain together, which point they endeavoured to communicate with the Father but to no apparent avail.

   (e)The Mother said that the Father’s attitude and actions towards the children have eroded the children’s desire and even interest in spending time with him.  She said that because the Father always presses to spend time with the children, they react against such pressure.  As well, they have been to so many counsellors and family consultants, they are very tired of being interviewed and, in their view, with their “views” never being taken seriously, they just do not want to engage any more with their Father.

   (f)The Mother also said that the few communications from the Father to the children were more about him rather than about the children.  In her view, the Father just has to focus solely on the children, and be consistent in his communication with them (which, she said, he was not).  In time, she said the children might “come around” to spending time with the Father if he was consistent in his communication with them.

   (g)She confirmed that the Father was authorised to obtain reports and other information regarding the children directly from their schools.

   (h)The Mother said that she was genuinely scared of the Father, not least because of his former drug contacts (the Father was convicted and served time for in prison for drug offences).  I need not elaborate on this part of the Mother’s evidence.

   (i)The Mother raised the prospect with the children of going to family counselling with the parents.  The children reacted very poorly to this suggestion.

   (j)The Mother has provided a direct email address for the children to the Father.  The children have a separate mobile phone to receive calls from their Father.

   (k)The Mother outlined at some length the various ways, and the frequency of her attempts, to get the children to speak with and or to spend time with the Father, including pursuant to agreement between the parents as reflected in Court Orders.[6]

   (l)The Mother said that the children “came to understand” the controlling nature of the Father, to see “his true colours.”

   (m)She said that she did not contact the Father with information about the children, among other things, because he never contacted her or them.  She also said that the children become anxious about the thought or prospect of seeing their Father.

   (n)In her view, the Father was using the Court and his email correspondence to “get to the Mother”, to “attack and threaten” her.  She said that the Father was very controlling of her and was trying to control her “like he used to.”

   (o)In relation to the counselling service proposed by the Father, the Mother said that she was generally aware of what services it provided but had not otherwise “checked out” the proposed service’s website.  She did not doubt that the services were or would be professional but the children were getting frustrated that no one was listening to them and they did not want to see another “professional” in relation to their Father.  At the moment, in the Mother’s view, there was no point trying this further counselling/therapy service.

   [6] In this regard, see the extensive discussion at T 48 – 49.

2. Again as a general proposition, in my view, the Mother gave her evidence fairly, and in something of a “world-weary” fatigue at the persistent return to the Court.  I detected no malice but only a genuinely protective concern for the children.

Submissions on behalf of Applicant Father in relation to Contravention Application and Future Parenting Orders

1. The Father filed written submissions in relation to the Contravention Application on 10^th July 2017.

2. Those submissions were as follows (footnotes omitted):

   Contravention

   1) It is alleged the Mother contravened the Order made by consent on 11 April 2016 (“the April 2016 Order”) without reasonable excuse as set out in the Application-Contravention, filed 17 October 2016, noting the breach of paragraph 12 is not pursued.

   2) The only face-to-face time which the April 2016 Order provides for the children- X (aged 13) and Y (aged 9)- to spend with the Father (failing agreement otherwise) is for two days in each of the Term 2, Term 3 and Term 4 school holidays.  No overnight time is provided for.    

   3) It is uncontroversial that: the first occasion when this time was to take place after the April 2016 Order was Saturday 9 July 2016; the children did not spend time with the Father on that date despite the Father’s seeking that they do so; and the children have spent no time with the Father since then. 

   4) It is submitted that the Court will readily conclude that, on the balance of probabilities, the Mother has contravened the April 2016 Order in that, pursuant to section 70NAC:

   a) the Mother was bound by the Order and was aware of her obligations, noting she entered into it by consent; and

   b) the Mother intentionally failed to comply with the Order or made no reasonable attempt to comply with the Order; in that

   c) she hindered or prevented the Father and the children from spending time together in accordance with the Order (s.65N).

   5) The evidence will show that:

   a) The Father provided the Mother with the required notice under Paragraph 3 of the April 2016 Order.  This confirmed he intended to have time with the children on the dates in the Order-para 7 of the Father’s July Contravention Affidavit;

   b) The Mother sent the Father emails on 2 July 2016 and 25 September 2016 indicating that she would not be making the children available –paragraphs 3 and 4 of the Father’s October and Annexures 2 and 4, and paragraph 9 of the Father’s July Contravention Affidavit of 10 July;

   c) The parties did not agree to vary the arrangements provided for in Paragraph 2 of the April 2016 Order -paragraph 9 of the Father’s July Contravention Affidavit.  The Father made it clear by his email to the Mother dated 5 July 2017 that he required that time went ahead in accordance with the April 2016 Order- Annexure 2 to the Father’s October Affidavit. 

   6) The Mother has offered no explanation for her failure to comply with the April 2016 Order, other than that “Both X and Y are adamant they don’t want to attend any more visitations at all.  We are not going to stress them out over this any longer” (email of 2 July 2016- Annexure 2 to Father’s October Affidavit) and “Both X and Y were asked if they would like to attend the visit in Sydney, Both have declined” (email of 25 September 2016- Annexure 4 to Father’s October Affidavit).  The Mother in the email of 2 July does say “It has not been without encouragement from us but we can only try so much.”

   7) The line of authorities, commencing with the decision in In the Marriage of Stravros, confirm in clear terms the obligation on parents to facilitate and encourage contact ordered by the court.  In Stevenson v Hughes Fogarty J stated that a parent must take ‘[a]n active role with an obligation to positively encourage access’.   It is simply not good enough for the Mother effectively to leave the decision to the children.  It is noted that Y is only 9 (8 at the first alleged contravention), and that the contravention occurred on the first occasion and less than 3 months after the April 2016 Order. 

   8) In the search for a solution moving forward, the Father does not seek the penalties enabled by Subdivision F of Division 13A, notwithstanding that the Court may form the view that the Mother “showed a serious disregard” for her obligations under the April 2016 Order (s. 70NEA(4)).  Rather he seeks that the Mother attend a post-separation parenting program (s.70NEB(1)(a)), and seeks the Primary Order be varied (at this stage on an interim basis), and compensation time, as set out below.

   Parenting Aspect

   9) Pursuant to s.70NBA(1), the Court can vary a parenting order whether a contravention is established or not. Section 70NBA does not limit the general power of the Court to vary an order under the Act (s.70NBA(3). It is submitted this would include a power to suspend the Primary Order and make interim and procedural Orders, as the Father’s Minute effectively seeks. As is always the case in making a parenting order, the best interests of the children are the paramount consideration.

   10) The Father is committed to doing whatever he can to restore the children’s relationship with him.  His emails to the children on 21 and 22 June 2017 (Father’s July Parenting Affidavit, Annexure D) demonstrate his love for, and commitment to, them.  He deposes to his previous efforts and to the difficulties previously of communicating with the children- Father’s July Parenting Affidavit, paragraphs 9-14.  He has taken steps to rectify his child support arrears- Father’s July Parenting Affidavit, paragraph 17. 

   11) The Father is no longer seeking a substantial variations to the April 2016 Order.  He is seeking a method to put his relationship with the children back on track through tailored therapeutic counselling and an initial visit to “break the ice”.  It is submitted the Father is showing insight and sensitivity to the children’s circumstances by proposing therapeutic intervention.  The Mother also sought such intervention until 2 June 2017 when she changed her proposal to seek a variation of the April 2016 Order such that the children only spend time with the Father by agreement.

   12) If the relationship between the children and their Father, siblings and extended paternal family is to be salvaged, then therapeutic intervention should be given a chance.  It is the Father’s evidence that, although there is a long litigation history to this matter, no therapeutic process has yet been tried- Father’s July Parenting Affidavit, paragraph 5.  The Father deposes to his commitment to rebuild his relationship with the children and says that “I will comply with any recommendations that the therapeutic counsellors recommend, including attending any courses”- Father’s July Parenting Affidavit, paragraph 6. 

   13) The therapeutic intervention sought by the Father is through “The Relationspace”.  This is an organisation headed by Dr C, specialising in assisting families and children who are in the family law system.  That service is based in Sydney, where the Mother and children now live, and the Father will travel from Brisbane to attend.  The Father will pay for such service (Minute of Interim Orders sought by the Applicant Father).  This Honourable Court would be satisfied that the use of such an expert and specialised service would not involve a risk “of pathologizing the children, such that they may perceive themselves to be responsible for the breakdown in arrangements for spending time with their father” (CIC Memorandum, 31 May 2017 (“CIC memorandum”), paragraph 63).  It is also noted that when they spoke with Ms M the children “were both ambivalent about seeing a counsellor”- not that they indicated they would not do so (paragraph 56).

   14) The Father’s Proposed Orders seek a modest period of initial contact with the children, following by therapeutic intervention.  In stark contrast, the Mother’s current proposal is not child focused and would likely produce a result where the children have no relationship at all with the Father or the other family members, including a baby sibling and a toddler sibling.   

   15) The Child Inclusive Conference Report dated 1 June 2016 (“the CIC Report”) is only one piece of the evidence and is not tested.  The Father’s evidence at paragraph 8 of his July Parenting Affidavit is that he only met with Ms M for 11 minutes and he was not observed with the children.  The Father gives evidence that directly contradicts some of the evidence provided by the Mother to Ms M.   As Ms M notes herself at paragraph 62, her assessment is limited and preliminary.

   16) Ms M does not consider alternatives for handover or report on the possible impact on the children short and long term of having no relationship with their Father or no contact with him. Obviously, the Court is not bound by the recommendations of the CIC Report, and the children’s views are only one of the section 60CC(3) considerations. Simply to discharge the time with children spend with the Father and not give therapeutic intervention a chance, as is being sought by the Mother, is effectively “giving up” on the prospect of the children having these relationships and that does not accord with the objects and principles of the Act.

Submissions on behalf of Respondent Mother in relation to Contravention Application and Future Parenting Orders

1. The Mother filed written submissions in relation to the Contravention Application on 12^th July 2017.  Those submissions were as follows:

   Re: Alleged Contraventions

   1) These submissions are in relation to the Application – Contravention filed by the Applicant on 17 October 2016.

   2) I apologise to the court for the delay in filing these submissions. I only received a copy of the father’s further affidavit material this morning (12 July 2017).

   3) The Respondent will be admitting the breaches of the orders and arguing that a reasonable excuse applied to her behaviour.

   4) Cross examination of the applicant father is sought.

   5) The mother seeks to rely upon the Family Consultant Memorandum dated 1 June 2017 prepared by Ms M as well as the supplementary note to that Memorandum from Ms M dated 30 June 2017.

   Re: Parenting Orders Sought

   1) These submissions are in relation to the parenting aspect of the matter. It is noted that the court has the power to make parenting orders arising from Contravention Proceedings whether or not the contravention is proved (s. 70NBA). 

   2) I apologise to the court for the delay in filing these submissions. I only received a copy of the father’s further affidavit material this morning (12 July 2017).

   3) The mother seeks orders in accordance with the document filed on 10 July 2017. She seeks orders that the children’s time with their father be in accordance with their wishes.

   4) It is clear that the children currently have strong views that they do not want to communicate with or spend any time with their father.

   5) The mother seeks to rely upon the Family Consultant Memorandum dated 1 June 2017 prepared by Ms M as well as the supplementary note to that Memorandum from Ms M dated 30 June 2017. It is noted that Ms M has had a previous extensive involvement with the parties given that she has previously prepared a Memorandum to the Court on 26 February 2013 and a Family Report dated 14 August 2013. Her comments in the current Memorandum need to be understood in the context of that extensive prior involvement of Ms M with these children.

   6) Ms M records the children’s “strongly expressed views” at paragraph 61 of the memorandum and opines that these views need to be carefully considered given their strength. At paragraph 62 Ms M goes further and says that any orders requiring that the children spend time with their father is “likely to be counter-productive at this point and may negatively impact on the children’s emotional well-being.”

   7) The mother proposed therapeutic counselling for the children and their father. This showed a willingness by the mother to engage the father in a positive attempt to rebuild his relationship with the children. Nonetheless, Ms M concludes that such counselling is contraindicated unless the children were to voluntarily attend and would risk “pathologising the children”.

   8) The mother’s proposal allows the father to communicate freely with the children in writing including to provide letters, gifts and cards. The orders also allow for the possibility of telephone or other electronic communication, although it is conceded that the children are likely to be unwilling participants at this point.

   9) The process for the father to rebuild his relationship with the children needs to start from an interest in the children to do so – not an order requiring them to attend. It is likely that any such order would be futile given the children’s strong resistance to spending time with their father.

   10) If the father were to regularly, although perhaps not too frequently, write to the children in the positive way that he has been then there is the chance that the children’s interest will be sparked such that future time may be feasible.

   11) It is of concern that the father continues to make derogatory comments about the mother in his material. The mother is the children’s primary carer and is likely to continue to be their primary carer. The children report that the father is negative about their mother. This can only make a resumption of a relationship with the children less likely given their close affinity with their mother.

Submissions on behalf of Applicant Father in relation to the Court’s use of past Family Reports

1. The Applicant Father filed written submissions in relation to the Court’s use of past Family Reports on 20^th July 2017. Those submissions are as follows (footnotes omitted):

   1) The Court will make two decisions in this matter:  first, whether the Mother has discharged the onus on her to show “reasonable excuse” for the admitted contraventions of the April Order (“the Order”); and second, what variation (if any) of the Order is appropriate. 

   2) In making the first decision, the Court would not have regard to expert reports which pre-date the Order.  Such an approach would effectively allow a person bound by Orders to interpret their obligations with an eye to historic events; but a party may not “arrogate to himself a supervisory power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court’s order…” . The question of “reasonable excuse” would be determined on the Mother’s evidence in the Contravention proceedings; as was submitted orally, the evidence was simply inadequate to show that. 

   3) In relation to the second decision, the Court would place limited weight on the pre-order reports.  Without testing of the evidence, the Court would not proceed on the basis that any of the allegations/facts reported by either of the parties to the experts is true.  The Report of Dr S 29/10/15 is the most recent pre-Order report.  The writer (while also critical of the Father) opines that “Ms Kinnear expresses strong negative feelings about Mr Hyne” and that the children are likely to have been influenced by those negative feelings and concerns [54].  Ms M found similarly in the Family Report dated 6 February 2013 [53].  The Court would conclude from the oral evidence of Ms Kinnear at the hearing on 14 July 2017 that those “strong negative feelings” continue, and that she should not be the “gatekeeper” of time.

   4) The Dr S Report recommends that the children be assessed by an independent psychologist, notwithstanding that it records that X has already seen a psychologist on three occasions [41].  At [51] there is a recommendation for counselling for Mr Hyne and at [54] for Ms Kinnear.  The Dr S Report is not inconsistent with Orders which provide for therapeutic counselling for the parties and the children.  It is noted that intake sessions with the parents would occur first to determine suitability. 

Submissions on behalf of Respondent Mother in relation to the Court’s use of past Family Reports

1. The Respondent Mother filed written submissions regarding the Court’s use of past Family Reports on 21^st July 2017. Those submissions were as follows:

   1) These submissions are made in accordance with the orders made by the Court on 14 July 2017 in relation to the use that can be made of the previous reports prepared in this matter.

   2) It is submitted that the Court is entitled to consider the content of the previous reports and, therefore, to receive those documents into evidence. Given that the matter has been before the Court for a significant period (some 6 years or so), that history is relevant to see where the parties have come from in terms of the father’s time.

   3) In particular, it is important to show that the father’s relationship with the children has always been tenuous and has never been a particularly positive relationship. The current situation as put by Ms M and the mother is that the children, as a result of their negative experiences with the father, have a strong negative view about spending time with him. The downward trend in their relationship is apparent from a simple review of those earlier reports.

   4) It is noted that His Honour has been involved in the case throughout most, if not all, of the history and will have likely read each of the earlier reports at some point. It is unrealistic to suggest that the earlier reports should be excluded in circumstances where His Honour will have some recollection of the tenor of the reports even if not the detail.

   5) From an admissibility perspective, the rules of evidence are generally excluded from operation in parenting matters (including Contravention matters). The earlier reports are therefore admissible evidence. Each of the parties has now had an opportunity to address the earlier reports. On that basis, there cannot be any complaint made about a lack of procedural fairness in admitting the reports.

Consideration & Disposition

1. In my view, the Mother’s “plea” of admission with “reasonable excuse” should be accepted.  There is significant evidence before the Court regarding the “views” and disposition of the children towards their Father.  The primary parts of that evidence, which has been consistent at least since the Family Report of Dr S, dated 29^th October 2015 (Exhibit B4), are (a) the Mother’s evidence at the hearing, (b) the Report of Dr S, just noted, and (c) the two Reports of Ms M (dated 31^st May and 30^th June 2017).  I need not repeat the evidence of the Mother set out earlier in these reasons.

2. From Dr S's Report, I note the following comments (at the time of this Report, X was 11½ years old; Y was then just under 6 years old):

   [36] X came to the interview armed with items she wished to show to the Consultant.  She brought her phone, on which she had “secretly recorded” an incident at her last meeting with her father, and a diary in which she had recorded her feelings toward him.  The title of this diary was “I HATE HIM”.  The diary was not read or the video watched but the contents and issues involved in them were discussed with her.

3. Then at pars.38 and 40, Dr S noted:

   [38] X said she does not wish to spend time with Mr Hyne.  She said, “I don’t really know him.  I didn’t see him for four years”.  She said she finds him “really creepy”.  X said, “Whenever I am near him (Mr Hyne) I feel sick in my tummy and get a pounding headache”.  She said that Mr Hyne “yells at us” and “makes me feel uncomfortable”.  She claimed that Mr Hyne “keeps saying” that she and Y are “breaking Court Orders” (when they won’t see him or talk to him) and has told them “he will have full custody (of them) by Christmas (2015)”.  She said the prospect of this happening continually worries her.  She said she doesn’t like that “he says all these bad things about Mum”.  She said, “Y and I are so confused”.

   …

   [40]  X described the last time she had spent time with Mr Hyne as a traumatic event.  She said, as this was to be the first time she had a sleepover with Mr Hyne, it had been a worrying time for her and Y. She described how Mr Hyne had confiscated their phones and would not allow them to contact their mother.  She said he refused to listen to them when they told him they did not want to stay with him and made them go to separate rooms, even though they were upset and told him they wanted to be together.  When he finally relented and they were allowed to go home with their mother, she claimed that he said, “Congratulations, X.  You have won.”  She said thinking about this event makes her feel “sad”.

4. At par.42 of the same Report, Dr S said:

   X said she believes Y is more worried about Mr Hyne than she is.  She said that Y “is always crying” when it is approaching time to see or talk to Mr Hyne and said, “He gets frustrated and angry”.  She said she and Y talk together about their concerns and both agree they do not want to see or talk to Mr Hyne and support each other.  X said she has a number of close friends at school but feels unable to talk to any of them about her relationship with her father.

5. In the evaluation section of his Report, Dr S said, at pars.46 and 47:

   [46] X and Y impressed as happy and positive children while in the care of their mother and her partner.  It appears that they are progressing well at school and have friends and a lively social life.  However, both are reported to have demonstrated significant emotional and behavioural problems, allegedly caused by coping with spending time with or speaking to Mr Hyne.  

   [47]  Both children seemed determined to resist spending time with their father, or even to communicate with him.  Both Ms Kinnear and X claim that complying with the existing Consent Order has had a deleterious effect on the health, behaviour and emotional state of both children.  This impact does not appear to have been confirmed by any independent expert.  However, spending time with Mr Hyne has not resulted in X and Y developing a positive attitude toward him or a desire to maintain a relationship with him.  Given that Mr Hyne was absent from the children’s lives for about four years at a significant time in their early development, it is unsurprising that they may have a tenuous relationship with him.  Their present attitude makes it unlikely that it would be productive to force X and Y to spend time or communicate with Mr Hyne.

6. Of course, I cannot and do not make any findings in relation to these comments and observations by Dr S.  I note them because of their utility to highlight the strongly held views of the children about their Father and that they have been held now for quite some time.  As well, the reports by Dr S indicate that the Mother’s more recent report about the children’s views is consistent with their earlier expressed views.

7. In Ms M’s first and quite comprehensive Memorandum, dated 31^st May 2017 (Exhibit B5), she reported the following comments from the children.  It is important that the whole of this section be set out, thus (pars.42 – 56):

   [42] The children appear weary of the court process. They were cooperative about being interviewed; however both stated that they did not like having to attend the Court. Of attending the conference, Y stated that he felt “a bit nervous but now I feel fine.”

   [43] Neither child could express anything positive about spending time with their father.

   [44] Y had difficulty recalling time with his father because it was “a long time ago”, but could recall a few events. Y stated that, on one occasion while they were staying at a hotel with their father, his father requested that Y return the room key to the office and that, when Y refused, his father started yelling at him. He said that, on another occasion, when he refused to spend time with his father the children were taken to the police station. About this incident Y said that they were told that they were required to spend time with their father “because it was against the law” for them not to spend time with him.

   [45] X stated that she could not remember many details of spending time with her father. She said they would meet at the “(omitted)” in (omitted), and that on most occasions “we showed up but we didn’t stay.”

   [46] Both children recalled the occasion when the children were to spend overnight time with their father. Y said that, when he wished to return home and to telephone his mother, he was unable to contact her because his father had removed their mobile telephones earlier in the day. He said he was crying and X was trying to comfort him and his father told X to leave the room and go to her room. He stated “we tried to get our phone but he wouldn’t let me”, and said “I felt sad because I wanted to talk to my Mum and he wouldn’t let me.”

   [47] X said that, after dinner, they wish to call their mother “because we didn’t want to stay and he (her father) took both phones and we couldn’t get them.” She reported that “Y was crying a lot and our father was yelling to get in our own rooms.” She said that she was able to call her mother and put her father on the phone because she did not know the address of where they were staying. She stated that, when her mother collected them, her father said “good job X, this is all your fault, it could have been a good night but you had to ruin it.” She stated that following this they did not wish to spend time with their father “at all.”

   [48] X reported that the last time she saw her father was a visit prior to Christmas 2015, which she said she recorded on her iPod. She stated that “Y was crying a lot and didn’t want to go” and that her father was yelling for Y to get in the car. About this occasion, X said that, during the changeover, her father said to her mother and partner that they had said to the children that he was going to kill them. She said “they have never said that” and commented “I knew it wasn’t true because Mum and Mr J (mother’s partner) never say anything bad about him (her father) and Ms S (father’s partner).” She said that Ms S walked the children back to their car and was attempting to calm them down. She reported that, as Mr M was walking away and returning to his vehicle, her father stated “we will have full custody by Christmas.”

   [49] X appears to feel manipulated by her father. She said that her father would “bring lots of presents and that’s how he showed love. He gets things to bribe us.”

   [50] The children each reported that their father does not contact them and Y stated that “we get cards on our birthday but nothing else. He hasn’t called us forever.” Y stated that he received a text message on his iPad from his father with a picture of him, his wife and his baby. Y thought it was “weird” that his father had access to his iPad. X said they receive no telephone calls or text messages from their father.

   [51] Both children expressed a wish not to spend time with their father. Y said this is because of “all those things he’s done to me and I can’t get it out of my head.” He said that, while his father “talks nicely sometimes”, he feels frightened because he yells at them.

   [52] X stated that, if an order was made her to spend time with her father, she would “show up but I wouldn’t go.” She said this was because of “the things he said and what he did.” She said that, on one occasion when she did not wish to attend, both her father and Ms S “started crying and it seemed fake because there were no tears coming out of their eyes.”

   [53] X said she feels “uncomfortable” spending time with her father “because I don’t want to be with him”, and that, after her father said her mother and partner had said he would kill them, she felt “more uncomfortable.”

   [54] Y said that his advice to his father would be to “stop yelling” and, in the future, to be “calmer and not to be yelling.” He then added, “I still don’t want to spend time with him.” Y’s wishes for his family included “for Mum and Mr J to get married; for us to be healthy; and to be a happy family.”

   [55] X’s advice for her father was to focus on looking after his new family. She stated “I thought he would want to stop seeing us when B was born.” She said that, if she were the Judge, she would decide “no contact.” X’s wishes for her family were “to live a happy life and not have contact with our father.”

   [56] The children were both ambivalent about seeing a counsellor. Of her relationship with her father, X stated that “I don’t ever talk about it or need to talk about it”.

8. In her general assessment and recommendations (accepting that the Memorandum was of limited scope and formally untested), Ms M said, at pars.60 – 63 (emphasis added):

   [60] The children’s comments suggest that they have been exposed to conflict between the adults at changeover. This is likely distressing for the children and may contribute to their unwillingness to spend time with their father.

   [61] Both children expressed a wish not to spend time with their father. Given their age and stage of development and the children having previously engaged in spending supervised and unsupervised time with their father, the children’s strongly expressed views warrant consideration in formulating their arrangements.

   [62] From this limited and preliminary assessment, given the children’s expressed resistance to spending time with their father, requiring them to spend time with him, is likely to be counter-productive at this point and may negatively impact on the children’s emotional well-being.

   [63] The mother’s proposal that the children attend therapeutic counselling seems unlikely to be successful unless it is attended voluntarily by the children. It also carries the risk of pathologising the children, such that they may perceive themselves to be responsible for the breakdown in arrangements for spending time with their father.

1. In her most recent, very brief memo (dated 30^th June 2017) (Exhibit B6), which was written in response to specific questions from the Court, Ms M said:

   Note to the Court as per Order 5, made on 2 June 2017

   Could it be reasonably inferred that the influences in the Mother’s household have led to the children’s negative disposition towards the father?

   This “Note to The Court” is based on information available from the Child Inclusive Conference on Friday, 19 May 2017.

   It is noted that the children have spent no time with the father since the Consent Orders dated 11 April 2016.

   Each of the children is of an age when they may be reasonably cognisant of their mother’s attitudes towards their father. However, on the information available, it cannot be reasonably inferred that the mother has directly influenced the children’s views.

   The mother reported that she has appropriately supported the children maintaining a relationship with their father. She maintained that she has not discussed her views with the children, other than to inform them when they are to spend time with their father. Further, X reported that her mother and partner “never” make negative comments about her father and his partner.

   The children’s refusal to spend time with their father appears to be related to other factors. Their views of the father seem to be influenced by negative experiences of him, which they recounted and are recorded in the Memorandum of the Child Inclusive Conference on Friday, 19 May 2017. These include negative experiences at changeover, of conflict between the adults in the presence of the children and while spending time with their father.

   The children may have been exposed to allegations and negative comments made by the father about the mother and her partner. For example, the father alleges that the mother and her partner use crystal methamphetamine; have been observed buying drugs and appeared “drug affected” at changeover. If the children believe these allegations to be untrue, the allegations may negatively affect their view of the father.

   The children’s relationship with their father appears to have been further negatively affected by his having minimal contact with the children via telephone, Skype, email or mail.

   The drawn out and acrimonious nature of this dispute may have a detrimental impact on the children’s emotional well-being and development in the short and long term.

2. Section 70NAE of the Family Law Act1975 (“the Act”) sets out the meaning of “reasonable excuse.”  Given that both parties are legally represented I need not set out that quite lengthy section.

3. There is no question, according to well-known authority, that compliance with an Order must be genuine.  As well, “active steps” must be taken to encourage children to spend time with the other parent.  It becomes, according to the Full Court in Daly & Campbell, a question of whether, in all of the particular circumstances of the case, a person “has done all that could reasonably be expected” of them.[7]

   [7] Daly & Campbell (2005) FLC ¶93-236 at [44] and [49] (Kay, Warnick & Boland JJ).

4. The Mother’s affidavit evidence (filed 14^th July 2017), together with her oral evidence, in accordance with the “relevant standard” (s.70NAF), in my view relevantly establishes that the Mother’s plea of “reasonable excuse” has been made out.[8]  In this regard, in the light of the various Reports before the Court, and the Mother’s own evidence, there is a significant consistency in the views expressed by the children.

   [8] See Dobbs and Brayson (2007) FLC ¶93-346.

5. In the light of Warnick J’s comments in Childers v Leslie, at [28] – [35], to the effect that a “subjective” assessment of what is “reasonable” is insufficient for the purposes of s.70NAE of the Act, the independent evidence of Ms M, coupled with the historical comments of Dr S, plainly provide the Court with relevant “objective” evidence upon which the Court may properly find the “defence” of reasonable excuse made out as an objective fact.[9]

   [9] Childers v Leslie (2009) 39 Fam LR 379.

6. I accept the Mother’s evidence in relation to the situation in which she finds herself with the children (and their views) in relation to her inability to comply with the April 2016 Orders.  I also accept her evidence regarding the best course for the future.  That is to allow some breathing space, so to speak, for the children and for the Father to demonstrate his more consistent engagement with the children in corresponding with them.[10]

   [10] See the terms of s.70NBA, which provides that the Court may vary a primary Order even in circumstances where the contravention is not established or where, as here, the contravention is admitted but a reasonable excuse is found.

7. Given the consistency of the children’s views reported by a number of Family Consultants over a number of years, as well as the Mother’s evidence, I have no reason to question the important comment by Ms M, highlighted earlier in these reasons, regarding the risk of “pathologising the children” should they be required to attend a further assessment and therapy session as proposed by the Father.

8. In this regard, I remind myself (and others) of the [respectfully] pertinent comments in Cullen, where Strauss J (as part of a Full Bench otherwise comprising Watson SJ and Bell J) said (at Fam LR p.48):[11]

   There are few greater evils in family law than recurring litigation about custody and access.  It is detrimental to the child, particularly so if he is old enough to appreciate that his parents are in legal conflict.  It saps the mental, emotional and financial resources of the parties.  It taxes the resources of the court and of the community.

   [11] Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113.

9. In the light of the evidence to which I have referred, I accept the Mother’s plea in relation to “reasonable excuse”.  It follows that I do not see any relevant evidence (and none is referred to in any of the family reports before the Court) of any “alienation” or other attempt by the Mother to prevent the children spending time with the Father.[12]

   [12] In relation to the Family Reports admitted into evidence, noted earlier in these reasons, their utility indeed importance is the recording of the children’s views about their Father over a significant period of time.

10. In the light of the evidence and the Court’s findings, the Orders sought by the Mother should be made, which vary the April 2016 Orders. In my view, those slight variations are in the best interests of the children, pursuant to s.60CA of the Act. Given their ages, the history of the litigation, and the comments by Family Consultants over a number of years and a number of Reports, the views of the children (s.60CC(3)(a)) should be given particular weight.

11. To speak colloquially, the ball is now firmly in the Father’s court to establish and to maintain regular and appropriate communication with the children.  If that occurs, it may be that they will, over time, view spending time and communicating with him as beneficial rather than, as they have done for some time, an imposition and a burden.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:  11 August 2017