Jacobs and Sitch

[2017] FamCA 510

FAMILY COURT OF AUSTRALIA

JACOBS & SITCH [2017] FamCA 510

FAMILY LAW – CONTRAVENTION – reasonable excuse – where 12 year old boy tells police of what has happened but which father says is untrue – where no charges laid – whether mother says child will not attend contact – reasonable excuse found.

Family Law Act 1975 (Cth)

APPLICANT: Mr Jacobs

RESPONDENT: Ms Sitch

FILE NUMBER: MLC 10230 of 2009

DATE DELIVERED: 7 June 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 7 June 2017

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Tesoriero

SOLICITOR FOR THE RESPONDENT: Bayside Solicitors

Orders

1. That the application for contravention filed by the father on 28 April 2017 is dismissed.

2. That there be no order for costs.

3. That an interim hearing be fixed before the Senior Registrar at 10.00am on 20 July 2017.

4. That the mother file and serve an application initiating proceedings together with any interim orders that she seeks pending the final determination by no later than 4.00pm on 23 June 2017.

5. That the father file and serve a response together with any interim orders that he seeks pending the final determination by no later than 4.00pm on 7 July 2017.

6. That each party file such affidavits in support of the interim orders they seek by the same dates referred to above.

7. That the reasons this day be transcribed and be placed on the court file.

8. That for the purposes of the hearing on 20 July 2017, an Independent Children’s Lawyer is appointed (noting that the previous Independent Children’s Lawyer in the proceedings was Mr Finn).

9. That pursuant to Section 68L(2) the Family Law Act 1975 the child X born … 2004 be separately represented AND IT IS REQUESTED that Victoria Legal Aid arrange such separate representation. 

10. That forthwith upon appointment by the said Victoria Legal Aid or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

11. That within 48 hours of notification of such appointment the parties, and if represented the solicitors for the respective parties, provide to the Independent Children’s Lawyer copies of all relevant documents relied upon.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jacobs & Sitch has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10230  of 2009

Mr Jacobs

Applicant

And

Ms Sitch

Respondent

REASONS FOR JUDGMENT

1. This is an oral application for summary dismissal of a contravention application filed by Mr Jacobs on 28 April 2017.  He alleged two breaches of orders that were said to have been made on 13 August 2015 by Bennett J.  I am not entirely convinced that the orders were, in fact, made on 13 August because, if one reads the orders literally, they were simply reiterating what had been made by orders of the Senior Registrar in December 2014 and February 2015. 

2. The law in relation to summary dismissal in Australia is clear.  The person who asserts summary dismissal has to show that the application is doomed to fail, has no prospect of success or concepts of that nature. 

3. The five grounds that are asserted here are as follows, and I shall deal with them sequentially.  First, that there was no order annexed to the application and that contravenes Chapter 21 of the rules:  I agree entirely that that is a defect but it is not one that should preclude the Court from refusing to hear the application.  The reason behind that is that the rules are intended to make the substantive work of the Court operational and in this case, bearing in mind that these parties have been litigating for eight years or thereabouts, it would be hard for the mother to convince me that she was not aware of the nature and extent of the order and her obligations under it.  On that basis, to the extent that it is a technical breach, I would waive the breach anyway.

4. The second ground is that there is no reference to a previous contravention.  That, too, is a technical problem and, for the same reason that I have just articulated, no-one is prejudiced by that.  Indeed, it is controversial that the legislation, unlike the criminal jurisdiction, permits this Court to know of past breaches when assessing whether or not a contravention has occurred.  As part of that assessment, the Court is obliged to look at which category of seriousness the matter falls into.  On that basis there is no prejudice to the mother.

5. The third ground is that the father's affidavit is limited (in admissibility form) to paragraphs 13 and 14 of his affidavit.  Flawed though that evidence may be, the relevance of evidence as distinct from its admissibility are two different things.  What he asserts is effectively that a breach has occurred but he does not set out any of the details about it.  In my view that problem can be cured on the basis that the mother concedes that the contact relationship, as dictated by the orders, is not occurring.  Again, the mother is not prejudiced by the absence of the evidence there. 

6. Whether it might make some difference that the father did not turn up, I do not know, but he certainly makes reference in the second of the two paragraphs to the fact that he went to a police station for some unknown reason and reported the fact that the order had not been complied with.  Hopefully, there was no bank robbery or murder occurring at that time to involve the police department in trivial things such as this.

7. The fourth ground is that the order of December 2014 required the father to produce a report in relation to his partner, Ms J.  It seems undisputed that the December 2014 hearing was adjourned to 13 February 2015 and, to the extent that that report was not produced by that time, in my view the order ceased.  If it was not raised at that stage it cannot be now.  There is no substance or merit to that submission.

8. The fifth is that there is no reference in the father's material to an order made by Judge Lucev of the Federal Circuit Court who dismissed a previous contravention.  Those are matters that go to the credit of the father.  They are not matters that should indicate whether or not this particular application has merit.  I do not propose to grant the application for summary dismissal.

   RECORDED   :   NOT TRANSCRIBED

9. This is an application for contravention of orders made by this Court on 17 December 2014 and subsequently varied on 13 February 2015, and possibly reinforced or reiterated on 13 August 2015.  The orders relate to the parties' child, X, who is now twelve and a half years of age. 

10. The significant part of the orders can be seen in paragraph 3 of the orders of Bennett J of 13 August 2015 in which her Honour reinforced that the child's time with his father should be on alternate Saturdays from 9 am in the morning to 5 in the evening on an unsupervised basis and in the absence of Ms J.  It would seem that for the last two years those orders have been continuing but in March of this year, a problem occurred and the child has not had time with his father since. 

11. That simple synopsis would not do justice to the facts in this case.  In addition to the order of Bennett J, there have been proceedings in the Magistrates' Court of Victoria, specifically at Suburb K, under which an intervention order was made against Ms J and, relevantly, specifically in relation to the child.  That order was due to expire on 24 April but has been extended and there is currently a defended proceeding pending in July.

12. Consistent with the defence to that application, or as I understand the defence to be raised by Mr Jacobs, he would seek that ultimately in this Court, a further hearing should take place to have the restrictions associated with Ms J discharged and thereafter, to use his expression, the parties will get on with their lives.  After the best part of eight years of litigation in this Court, I am not quite so optimistic.  My concern is that the child is now twelve and a half years of age and there is a very limited window of opportunity for the parties to get his relationship sorted out.  Failing that, in the latter part of his teenage years he will make up his own mind and, to use the colloquialism, vote with his feet.

13. The application before the Court arises out of a specific allegation that the mother did not produce the child pursuant to the orders on 1 April and, secondly, a fortnight later.  It is not controversial that the child did not attend on those dates.  The dispute in this case is whether or not the mother had a reasonable excuse for non-attendance.  Her evidence is that the child told her certain things and, as a consequence of her subsequent discussions with him, she says that she could not get him to go to see his father.

14. In March, the child told his mother of having had various contacts with Ms J.  It is unnecessary for me to detail just what those contacts were, save to say that the child is now telling his mother that he does not want to go to see his father any more.  There seems to be some debate as to whether or not what that means is that the child would be happy to see his father so long as Ms J was not around, or whether in fact he has lost all confidence in his father.

15. Having regard to the fact that there is an intervention order in place relating to Ms J, one must say that it is not simply a childish whim.  There are serious allegations in this case that have obviously been made in the past against Ms J and, although they are presumably somewhat dated, whichever magistrate made the orders in the Suburb K Magistrates' Court, he or she must have been satisfied that they were sufficiently serious, and likely to occur again, to warrant the intervention order being made.  On that basis I should not simply dismiss the child's concerns.

16. Having told his mother that there had been contact with Ms J, the child was taken to a police station.  Because of his age and the controversial nature of what he was asserting, the police indicated that the mother was not to be present and they sent both mother and the child away.  They subsequently called the mother to bring the child back but this time he was to have Ms L from the M Victims Assistance Program present during the interview.  That interview took place with a Constable N on 28 March 2017 in the evening.

17. In that interview, according to the statement, the child told the police officer that he spent every second Saturday with his father and that he was dropped off to his father at McDonald's which is consistent with the order that Bennett J made.  He said that his father picked him up and took him to his home where his father had lived since what was described as the first intervention order was made.

18. One of the problems with this statement and the matters to which I am about to refer is that my understanding of the mother's evidence is that the statement was already prepared, a few more facts were added and it was signed.  It certainly looks to me like some of the language used in this statement is not that of a 12-year-old child.  Be that as it may, the mother was absent when this statement was made. 

19. What the child went on to say was that he, his father and Ms J lived at the address and that Ms J had been with his father for around seven years.  He said that when he went to his father's home, Ms J was either sleeping in one of the bedrooms or came out a little bit later.  He said she was never at the handover point because if that occurred, his mother would not let him go to his father.  He said he knew that Ms J could not be anywhere near him because it was against an order.

20. Interpolating there, it is troubling that a child of twelve and a half years of age is so cognisant of the details of the state intervention in his parents' life.  In part in cross-examination, that became evident when the father put to the mother that she had put these ideas in the child's head and, indeed, coached him or manipulated him.  He pointed to past observations of people, including police officers and Department of Health and Human Services' workers who took the view that the child had been coached.

21. The dilemma for me in relation to any finding about that is that those matters relate to something that precedes the child getting into his teenage years.  I would not draw too much from the fact that a child under 10, as he then was, was manipulated in some way as distinct from the statements that are now being made as a twelve and a half year old. 

22. X went on to tell the police officer that what had been going on for six to seven months was that Ms J was never there when his father's family was there because they knew that it was wrong.  How the child knew that, the police officer did not investigate.  The child went on to say that if his father went out, Ms J did not go with them because in his mind, she knew she might be seen with them because there was a "federal police station" nearby that might see her.  I take it that that was a reference by the child to the intervention order.

23. He went on to tell the police officer that whilst at dad's home once or twice Ms J had sat on the couch next to him whilst he was watching a movie.  He could not remember the date but she had been dropped off at her work which he described as a “shop” near Suburb B whilst he was still in the car.  It was put to the mother that she would know that the child was wrong about that and that Ms J had left that job some three years ago, but I am not at all convinced she knew anything about that.

24. In part, one of the problems with the factual scenario is that Ms J filed an affidavit, and was not required for cross-examination, in which she said she denied the things that were asserted against her.  Effectively therefore, in respect of whether or not those particular incidents as described by the child occurred, I have got two different versions. 

25. The police chose not to prosecute Ms J.  Ms J's evidence is that the police officer told her there was no evidence.  If indeed she was told that, it was completely wrong because there is evidence.  That evidence is the evidence of the child.  I suspect what the police officer was saying was that the prosecution would be required to prove their case beyond reasonable doubt.  It is a criminal offence to breach an intervention order, and what the court would be faced with, was two opposing versions, one from an adult and one from a child.  It seems more likely to me that the police chose not to prosecute because they were of the view that they would not succeed on the prosecution.

26. My task is entirely different.  I am not determining this matter on the standard of the criminal court, which is beyond reasonable doubt, but rather on the balance of probabilities.  Whilst there may have been assertions in the past, not only by the father but also by other professional witnesses, that they thought that the child was being coached by his mother, I could not be satisfied that that is the case here having regard to his age.  It strikes me as rather unusual that a 12 year old would go to a police station and brazenly make allegations of this nature.  On the balance of probabilities it seems to me more likely that what he was saying was correct.

27. X said that he was aware of what the intervention order said about Ms J.  It is again conceivable that the police had already told him about those things and I am not sure whether the suggestion was put to him about his rights.  That arises because the child went on to say that his father had told him that Ms J could be within five metres of him, and then he went on to say that his mother showed him the order and explained that that was not right.

28. What that tells me is that the child was put in a really conflictual position.  His mother tells him one thing, his father tells him the other but, to the extent that he is still a 12-year-old child, he is being dragged into the conflict as to what is right and what is wrong rather than being left alone to be a child.  What the police officer then deducted from all of that was, the child understood that Ms J was breaching the order.  That sounds like a remarkable statement for a child, and again I wonder whether the police officer used that language rather than the child's own words.

29. Importantly in the context of this case, the Court has to decide on the balance of probabilities, that is, what probably happened here.  the child told the police officer, and I quote:

    I saw [Ms J] hacking mum's Facebook and changed the password a couple of months ago.  She was also pretending to be someone else on dating sites, stalking mum, pretending to be a guy.  I knew this because I saw [Ms J] at dad's house on a dating site.  She was pretending to be a man and chatting to mum.  I saw this about three weeks.  [Ms J] does not know that I saw this.

30. There is evidence which arose in cross-examination from the mother that confirms that she did have difficulties with her password and problems with Facebook, in addition to which she had spoken to a number of people, including some whom she named and, although the father says that he knew nothing about that, the mother says that the person knew him.  That tends to corroborate what the child says even if his mother coached him to the use the words.

31. Bearing in mind that he is twelve and a half years of age and, indeed, said to be reasonably mature, it seems to me that I could not conclude that he was coached or that he was just making up the things that were said to the police officer.  Subsequent to that interview, the police took no action.  The mother then chose to discuss the issue with the child and he told her that he was not prepared to go to his father's because he had lost confidence in his father's capacity to do what he was to obliged to do in the first place, namely, protect him from Ms J.

32. That being the case, I return to the issues that the Court has to determine.  As I have already observed, the issue about whether the order was fulfilled is not controversial.  The question is whether the Court is satisfied that, for the purposes of section 70NAE of the Act, the respondent has a reasonable excuse for contravening the order.

33. Section 70NAE does not have any restricted provisions that limit what matters the Court can take into account in determining whether there has been a reasonable excuse.  My concern is that the child has been prepared to speak to a police officer in the absence of his mother, make the allegations that I have just described, and now would face the prospect that he simply went back to his father, it defies logic that he would not know that he had caused his father some angst by being at the police station.  At twelve and a half years of age, it is hard to imagine that he would not know that his mother was at court today and therefore sooner or later, he will find out that his father thinks that he is a liar. 

34. His father has said in no uncertain terms that what the child told the police is untrue.  That assertion is corroborated by Ms J who says that the child’s assertions did not happen.  On that basis, the credibility of the child sadly is very much in issue in this case.  My task is to decide whether I consider the excuse for not producing the child is reasonable.  The excuse here is that she cannot make a twelve and a half year old child, who is almost the same size as she is, and who is quite indignant about the fact that the orders that have been made both at State level and at Commonwealth level, have been breached.  In my view there is a reasonable excuse here and the application must fail.

1. The conclusion of the contravention application then triggers the provisions of section 70NBA.  That particular provision of the Act empowers the Court to do a number of things, including varying the existing orders.  In my view it would be inappropriate to endeavour to alter the orders in any way today because I could not make any of the relevant findings under section 60CC of the Act, nor could I be satisfied that an alternative to the order is proper.  There is clearly a dispute between the parents as to whether the child is manipulated, whether he is making this up, or whether indeed he genuinely does want a relationship with his father absent Ms J. 

2. The only way I could determine that issue would be to have the matter at least examined on an interim basis, and I suspect the senior registrar is the appropriate person to do that providing he has the relevant information.  If I simply set an interlocutory hearing before the senior registrar and all he had was the evidence of a similar nature to what I have had today, I suspect the senior registrar would be in the same position in being unable to find out what exactly has occurred for the child. 

3. There will be an interim hearing, and I leave it to the parties to decide whether they agree and have some form of expert call evidence as to exactly what is in the child's mind.  It concerns me that I am putting the child in a position where is back on the treadmill of the conflictual relationship with his parents again, but the only other alternative is to make an order for the appointment of an independent children's lawyer who may very well speak for the child. 

4. It seems to me that I should do both and in those circumstances I propose to fix an interim hearing before the senior registrar and make an appointment for an independent children's lawyer.

   RECORDED   :   NOT TRANSCRIBED

5. This is an application under section 70NDC for an order for costs.  Section 70NDC requires the Court to consider making an order if one of two circumstances in particular arises and in this case, having regard to the findings I have made, both of those findings occur. 

6. I have declined to make an order for costs here because the respondent to the proceedings has had a grant of Legal Aid, and whilst that simply means that the burden of all this will fall on the community, the alternative is that the father, who is in a position where he would have about $200 a week to live on after he pays his living expenses.  It would not seem to me to be very sensible to have costs orders paid on an instalment basis out of that sum.

7. On that basis I decline to make an order for costs.  The application for costs is refused.  I will have these reasons transcribed and placed on the Court file.

I certify that the preceding forty one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 7 June 2017.

Associate: 

Date:  18 July 2017