Jenkins and Lloyd (Contravention)

[2010] FamCA 408

FAMILY COURT OF AUSTRALIA

JENKINS & LLOYD (CONTRAVENTION) [2010] FamCA 408

FAMILY LAW – CONTRAVENTION

APPLICANT: Mr Jenkins

RESPONDENT: Ms Lloyd

INDEPENDENT CHILDREN’S LAWYER: Ms Buchanan

FILE NUMBER: MLC 2364 of 2007

DATE DELIVERED: 21 April 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 21 April 2010

REPRESENTATION

FOR THE APPLICANT: In person

FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Ms Buchanan

Orders

1. That the alleged contravention by the mother of paragraph 4(d) of Orders made on 4 September 2009 is proved in that the mother was two hours late in delivering the child B born … December 2006 to S Contact Centre on 20 December 2009 for the purposes of spending time with the father and that the mother had no reasonable excuse. 

2. That in respect of the aformementioned contravention and pursuant to s70NEB (1) (a) of the Family Law Act 1975, the mother MS LLOYD shall within 7 working days from the date of this order make contact with Life Works Relationship Counselling and Education Services, the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program.  If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for the mother, the mother shall attend that program or that part of the program.

3. That pursuant to section 70NEB (1) (a) (ii) of the Family Law Act 1975, the father MR JENKINS shall within 7 working days from the date of this order make contact with Life Works Relationship Counselling and Education Services, the parenting program provider as nominated by the court and attend before the provider for an initial assessment of suitability for a post-separation parenting program.  If assessed by the provider as being suitable to attend a program or part of a program and the provider nominates a particular program for the father, the father shall attend that program or that part of the program.

4. That the alleged contravention by the mother of paragraph 4(d) of the Orders made on 4 September 2009 is proved in that she failed to deliver the child B born … December 2006 to S Contact Centre on 10 January 2010 for the purpose of spending time with the father and did so without reasonable excuse.  In relation to this contravention I impose no further consequential orders or penalties.

5. That I otherwise reserve the issue of payment by the mother of the father’s costs of this day pursuant to s70NEB1 (f) and(g).

6. That otherwise the contravention application filed 30 March 2010 is hereby dismissed.

7. That the reasons for judgment this day be transcribed and that copies be made available to the parties and to the independent children’s lawyer in the substantive proceedings and to the Director of Child Dispute Services for the attention of Mr V, family consultant.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  

MR JENKINS

Applicant

And

MS LLOYD

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me for determination of the father’s contravention application filed 13 March 2010 in which he alleges that:-

Count 1

(a)On 20 December 2009 the mother was approximately two hours late in delivering the child, [B] born […] December 2006 to the [S] Contact Centre for the purpose of him spending time with the father pursuant to paragraph 4(b) or (d) of orders made on 4 September 2009 and was two hours late without reasonable excuse.

Count 2

(b)That on 10 January 2010 the mother failed to comply with paragraph 4(d) of the order made 4 September 2009 in that she failed to deliver [B] to the [S] Contact Centre at all and there was no time spent between the father and [B] on that day. 

1. The primary order is paragraph 4(d) of the order made on 4 September 2009[1].  It provides that the child spend time with the father variously but including:-

   provided that the father has exercised all the time to which he is entitled pursuant to the preceding provisions of this Order, or the parties otherwise agree, [the child] spend time with the father once per week from 10 am to 4 pm with changeovers to be effected the Contact Centre on times and dates to be nominated by the centre in consultation with the father and advised to the mother not less than 14 days prior to the day.

   [1] The judgment is published at [2009]FamCA 832.

2. That primary order has been neither appealed nor varied nor set aside and there is no application before me to vary the order now. 

3. The father appeared on his own behalf. 

4. The mother appeared on her own behalf.  The mother was given the opportunity, which she took, to see the duty solicitor at court today.

5. Ms Buchanan of counsel appeared on behalf of the independent children’s lawyer. 

6. Prior to the father’s contravention application, this matter was listed to today for directions for a final hearing.  The orders made on 4 September 2009 (of which the primary order is one) followed on a hearing of some five or so days after which I pronounced interim orders.  In preparation for today, Mr A, family consultant has prepared a further report.  It is dated 25 March 2010 and has been released to the parties.  I have allocated the final hearing days to 16, 17 and 18 June 2010.  Upon those directions being given, the independent children’s lawyer asked to be, and was, excused.  The independent children’s lawyer has not participated in these contravention proceedings. 

7. The father relied on an affidavit sworn by him on 23 March 2010 save that the reference therein to the primary order having been made on 29 June 2009 is incorrect.  The father was required to be cross-examined by the mother and was.

8. The mother did not file any material in response to the contravention application.  She relied on evidence from herself and from her partner, Mr H.  Each were cross-examined. 

9. Additionally, various documents were tendered on behalf of the mother. 

10. In this judgment, statements of fact are findings of fact.

11. In relation to count one, the mother agrees that 20 December 2009 was a day upon which the father was entitled to spend time with the child pursuant to the primary order.  She admits that she was two hours late and says that she was late because she “forgot about the time.”  In the mother’s case, there was no reason advanced as to why justifying the very important obligations under a spend time order to slip her mind.  Whereas she was two hours late, she offered, and the father accepted, the child staying with him for an extra hour at the conclusion of the time provided for in the order.  There was a dispute in the evidence in relation to an offer of any further make up time.  The mother says that the father was offered a further hour to occur later in the week and the father denies this was so.  However, the father says that he was content with the extra hour he had with the child, until 5 pm.

12. I find count one to be proved and I am not satisfied that the mother’s forgetfulness constituted a reasonable excuse or was otherwise understandable.

13. In relation to the second count, the mother again acknowledges that 10 January 2010 was a day upon which the father was entitled to spend time with the child pursuant to the primary order.  She acknowledges that she did not deliver the child to the S Contact Centre and that no time took place.  The mother says that she has a reasonable excuse for her failure to comply.  The mother’s evidence was that on an earlier time to be spent, being 27 December 2010, she and her partner, Mr H, collected the child at the conclusion of the child’s time with the father.  They noticed that the child was somewhat unsettled.

14. In the presence of the mother and Mr H, the child is alleged to have said “[Mr H] is a dickhead.”  The mother’s evidence was that she and her partner asked the child to repeat himself a sufficient number of times for them to be sure that he was uttering “[Mr H] is a dickhead” and later on, “Mummy’s a dickhead,” or words to that effect. 

15. The mother further alleges that once they returned to their home the child was put in time‑out by way of a punishment and had explained to him the inappropriateness of his language.  The mother’s evidence is that the child then said, “Daddy’s going to burn [Mr H’s] car down and throw rocks at it.”  Again, the child was required to repeat himself so that both the mother and later Mr H, her partner Mr H, were clear as to what he had said.  The mother’s case of reasonable excuse is that she believed the child’s mental safety was in issue and,

    “If that was what he could learn in six hours, I did not think it would get any better.”

16. This is the basis upon which the mother agrees that she unilaterally suspended the operation of the father’s time with the child and has done so to this day although no further contraventions have been alleged in that respect 

17. The mother was challenged by the father as to whether the child said these statements at all.  The mother’s response was, “I don’t see how [the child] could or would make it up.  It seems a very violent thing for a three year old to think up.  Two weeks prior to that he had stopped going to child care, it was school holidays and he was only with the family,” or words to that effect. 

18. In evidence, the father offered no alternative explanation as to why the child would say these things. 

19. I had the opportunity to observe the mother and her partner, Mr H, in court give evidence and be cross-examined.  I assess their demeanour as being truthful when they relayed these incidences.  I am conscious that children of the age of three and upwards frequently make up statements in order to get attention, often as a result of being in a highly conflictual family such as this.  It seems to me, however, that the detail and purport of the alleged statements is too sophisticated to be manufactured by a three-year old.  On balance, I am satisfied that the child made these statements. 

20. The mother says further that in the week following 27 December, the child exhibited regressive behaviour.  He ceased to be toilet trained; he had night terrors and was quite distressed. 

21. The father denies having said anything that could be interpreted by the child as an intent to damage the car of the mother’s partner or to encourage or permit the child to refer to the mother and her partner as “dickheads.”  He does admit to having previously used rude language and possibly even the word “dickhead” in a car when confronted with what he perceived to be poor driving by others but says that this did not occur on 27 December.

22. In cross‑examination by the mother, the father was taken to paragraph 23 of the family report of Mr A, to which I’ve earlier referred.  The interviews for this report were done on 16 March 2010.  Paragraph 23 includes the following:

    At times, his comments about her were also personally offensive.  For example, he stated, “She needs to keep her legs shut.  I have lost all respect for her as a person, except that she is the mother to our child.”

23. The father’s uncontained behaviour in relation to the mother was a matter which occupied a great deal of the hearing before me in 2009.  One of the comments I recall from that hearing was a comment which the father made in open court concerning the inability of the mother to “keep her legs shut.”

24. In response to a question as to whether or not that was an accurate record of the family consultant, the father’s evidence was, “Well, it’s pretty obvious”.  He was referring to the fact that the mother was now five months into her pregnancy with twins, of whom Mr H is the father.  It was a point well made in the mother’s cross examination of the father.

25. In cross‑examination by the father of Mr H, the father reacted in a way that implied that he was taking some exception to the fact that Mr H referred to the mother’s residence as being “our home.”  He grimaced at the expression and started to laugh.  He then said that his name is still on the lease to that property.  The import of the father’s reaction was clear.  It was resentment of Mr H and a questioning of Mr H’s presence in the mother’s household in lieu of himself.  The father’s demeanour in court supported the conclusion that the child uttered the words attributed to him, and likely did so by some overt or covert encouragement, or modelling, or conditioning of the father. 

26. Children are confused by parents who do not communicate or cannot act civilly to one another.  They will, in due course, learn to cope with the situation but those defences or shutting down mechanisms will come at an emotional cost to the child.  The evidence of the family consultant at the trial was that the child had not, at that time, reached a developmental stage where the conflict would inevitably impact on him.  I have no difficulty with the contention that in the long term, the fact that the child makes comments such as this indicates that somewhere he is exposed to circumstances which are harmful and deleterious to his emotional wellbeing. Whether the comments emanate from the mother or the father is something that I will have to determine at the final hearing.  However, if ultimately the court is satisfied that attitudes which stand to, or do, undermine the child’s relationship with the mother emanate from the father, then it might also be satisfied that the deficits to the child of having a meaningful relationship with the father outweigh the advantages.  Put simply, if the father cannot control his behaviour and insulate the child from his negative feelings toward the mother and her boyfriend, there may have to be a reduction or an extinguishment of any time between the child and the father.  However, that is not an answer to today’s allegation that the mother contravened the primary order without reasonable excuse.  The issue is whether the mother was justified in unilaterally stopping the contact, not bringing any application to put right or regularise her position, and merely waiting to answer a contravention application brought by the father.

27. The mother’s case is that she did various things, but did not tell the father of the basis of her refusal to comply with the primary order.  I am satisfied that the mother could have attempted communication with the father, either by writing to him at his last known address by a letter addressed to him care of the contact centre.  She knew that the father was in communication with the contact centre because they contacted her on 10 and 17 January 2010.

28. In terms of other steps which the mother took to address a situation which she says she considered was vey harmful to the child, the mother’s evidence was that in the week after 27 December, which was the father’s last visit with the child, she did not do anything.

29. In early January, the mother was told of an appointment at Royal Children’s Hospital, for which she had been waitlisted sometime ago.  It was an appointment to see a paediatrician, Dr LH.  The appointment was allocated for February 2010.  Initially the mother’s evidence was that in response to the child’s disclosures on 27 December, she sought paediatric treatment for the child, it was, in fact, that she availed herself of an appointment for which she had been waitlisted for some considerable time prior to the alleged statements.

30. On 10 January 2010, the contact centre telephoned the mother after the father appeared at the centre to inquire about the child’s non-appearance at the centre.  The mother’s evidence was that she told the centre that she would not be coming until she obtained legal advice, and she had told them earlier in the week that was her attitude.  From the mother’s evidence, however, there was nothing to indicate that the father had been contacted or apprised of the reasons that she was not complying with the primary order. 

31. In the week of 17 January 2010, the mother sought some legal advice.  She had sought legal advice on an earlier occasion over the New Year, but found her solicitors to be on holidays.  On 17 January 2010, or in that week, she completed an application form for assistance from Legal Aid Commission of Victoria.  Ultimately, there was some defect in that application and it was resubmitted or refined.

32. In the weeks of 12 and 19 January 2010, the mother did not do anything further that what I have outlined.  She was waiting for a response from Victorian Legal Aid about her eligibility for assistance.  Her evidence as that she asked her lawyers, Altavilla, if she should file her own contravention application in relation to the child’s statements and she said that she had been told to wait and see if the father filed any proceedings.

33. On 2 February 2010, the independent children’s lawyer contacted the mother, asking why she had been refusing to comply with the orders.  The mother responded to those communications by an email sent on 4 January and again on 5 January and again on 2 February.  There were minor variations in the three emails.  The mother advised the independent children’s lawyer that she was not allowing the child to spend time with the father for various reasons which included:-

    a)the father had refused to return the communication book to her;

    b)the father abused his rights to make entries in the communication book by writing threateningly and in an intimidatory manner;

    c)on 27 December 2009, the child had told her and her partner that they were both “dickheads” and the child had informed them that, “Daddy said he was going to burn [Mr H’s] car down.” 

34. On 9 February 2010, Legal Aid Victoria notified the mother that her application for assistance was refused.  The mother appealed that decision.  The appeal was rejected approximately a week later. 

35. On 22 February, the mother went to a women’s legal service and took with her the family report from the last proceeding (the one to which I have referred above in these reasons had not yet been completed).  Her evidence was that she advised those solicitors why she was withholding the child.  Still she did nothing, however, to advise the father and she did not instruct those solicitors to do anything to advise the father.  She was advised to, and did, wait for the further family report to be prepared.  The mother said that, last week, they contacted her and said if she would pay the brief fee of counsel, they would represent her today. 

36. Neither party has made any application to vary or discharge the primary order.

37. A reasonable excuse is described is section 70NAE(2) as occurring if the mother contravenes the primary order because or substantially because she did not, at the time of the contravention, understand the obligations imposed by the order.  That is not the case here. 

38. In section 70NAE(5), a reasonable excuse is taken to exist if the respondent mother believed, on reasonable grounds, that not allowing the child and the father to spend time together was necessary to protect the health or safety of a person, in this case, it is alleged by the mother, the child, and that the period during which, because of the contravention, the child and the father did not spend time together was not longer than necessary to protect the health or safety of the child.

39. I have already indicated that, in the long term, the matters complained of by the mother may inform my assessment of the benefit to the child of having a meaningful relationship with the father.  But, in the short term, and knowing that a final hearing was close on the horizon, I am not satisfied that it was reasonable for the mother to take matters into her own hands and fail to comply with the spend time orders as she did. 

1. The mother could have taken steps through the independent children’s lawyer and/or the contact service to make known her concerns and to put the father on notice that if this behaviour continued, she would make an application to the court to suspend or vary the time which the father can spend with the child.  She did none of those things.  Accordingly, I am satisfied that this count is proved and without reasonable excuse.  I am not satisfied that the non-compliance was only for so long as was necessary to protect the child.  The mother was inactive when she should have been proactive.  There should, in my view, have been time between the father and the child.

2. These are the options contained within subdivision E of Part VII, Division 13A, which relates to contraventions without reasonable excuse, but less serious contraventions. 

3. It is agreed that the mother has not previously been found to have failed to comply with an order, or a court has not adjourned proceedings in respect of a contravention.  The purpose of these consequential orders are, of course, to outline to the court what orders it can make to “enforce compliance with orders under this Act affecting children,” (section 70NAA(1)).  They are not to punish or penalise.  They are designed to secure compliance with the order into the future, it being accepted that the order is in the best interests of the child.

4. Under section 70NEB(1), I can make an order directing either the mother or the father, or both, to attend a post-separation parenting program, (section 70NEB(1), subsection (a)).

5. I can order that there be compensatory time between the father and the child, (section 70NEB(1)(b)). 

6. I can adjourn the proceedings to allow either or both of the parties to apply for a further parenting order that discharges, varies or suspends the primary order, (section 70NEB(1)(c)).  That has not been done in this case, and the final hearing is less than eight weeks away. 

7. The court can make an order requiring the mother to enter into a bond pursuant to section 70NEC. I explained to the mother that the effect of a bond would be that, if she subsequently breached the order and was found to have no reasonable excuse, she would be dealt with for this contravention as well as the further contravention.  A bond is a promise to the court and often includes a promise to be of good behaviour and to abide the orders of the court.  That is the sort of condition that I would impose of the mother were she to enter into a bond.  The mother says that she does not want a bond. In my view, it is not appropriate to require the mother to enter into a bond in circumstances where she objects to doing so. I draw no adverse inference from the fact that she isn’t going to enter into a bond although I have made known to her some of the various consequences which flow from non-compliance with orders including the risks to her status as an on-going primary parent of the child. 

8. I can require the mother to pay some of the costs of the other party.  The father seeks one extra hour per occasion.  I’m not inclined to increase the time at this stage.  It already commences at 10 am and concludes at 4 pm. Before this matter comes on for final hearing before me, Melbourne will have more wintry and cooler weather so I am not inclined to extend the time.

9. The mother says that she would benefit from a post-separation parenting program.  I’m not convinced that the mother’s willingness to attend a program is because of appreciation by her of the merits of the content of the program or an appreciation by her that that is the consequential order that will have least impact on her.

10. The mother has already undergone a post-separation parenting program, she says. The father has done a post-orders parenting program. Neither seem averse to doing another program and that’s what I’ll impose today. That is, that they both do a post-separation parenting program if at all practicable prior to the commencement of the final hearing. In making this order I fully understand that neither of them may be accepted into respective programs before the hearing comes around. In all of the circumstances of the case and having regard to the options in section 70NEB (1)(a) to (e) inclusive, I do not propose to impose any further orders or sanctions on the mother.

11. I do not consider, in respect of count 1, that consequential orders are necessary.  The time has been made up.  It is unfortunate that the mother allegedly forgot and that she has now been found to have failed to comply with an order as a consequence of her forgetfulness. 

12. In relation to the second count, it is really in respect of the mother’s inactivity that I am not satisfied that there was reasonable excuse.  I also consider that the harm to the child was not harm of the nature that warrants an immediate and unilateral suspension of the time.  It is more properly a matter which is to be weighed and considered at the final hearing for which I have already provided. 

13. The father makes application for costs.

14. I will reserve the issue of payment by the mother of the father’s costs of this day pursuant to section 70NEB (1) subparagraph (f) and subparagraph (g). At such time as I do consider the issue, the mother and father ought to have had regard to the reasons of the Full Court in Oscar and Traynor [2008] FamCAFC 158 where their Honours considered what constitutes “costs and expenses” recoverable from another party. It was decided that “costs” are fees payable to a practitioner and “expenses” are monies paid to a third party for work done in the case or for services provided to the person claiming costs in his/her capacity as a party.

I certify that the preceding fifty four paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  21 May 2010