Krach and Krach (No. 2)

[2013] FamCA 298

FAMILY COURT OF AUSTRALIA

KRACH & KRACH (NO. 2) [2013] FamCA 298

FAMILY LAW – CHILDREN – with whom a child spends time – contravention application filed by mother – father admits contravention but argues reasonable excuse – reasonable excuse found – application dismissed

Family Law Act 1975 (Cth)

Childers v Leslie (2008) FLC 93-356

APPLICANT: Mr Krach

RESPONDENT: Ms Krach

FILE NUMBER: MLC 2897 of 2008

DATE DELIVERED: 6 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 11 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

THE COURT ORDERS THAT

1. The mother’s Application for Contravention filed 17 December 2012 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Krach & Krach (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2897 of 2008

Mr Krach

Applicant

And

Ms Krach

Respondent

REASONS FOR JUDGMENT

1. On 15 December 2012 the mother went to the father’s home to collect the two children of the marriage, who are now aged 12 and 11, at the commencement of her weekend time with them. She deposes in her Affidavit filed 17 December 2012 that the father had advised her by email that he would not be making the children available to spend time with her. When the children did not come out, she says she sent a text message to the father advising him that she was at his house waiting to collect the children and asking where they were. She says that the father sent her a text message in reply advising her that he would not be making the children available until a meeting had taken place with what she described as the “discharged counsellor”. The wife’s case is that the father has contravened paragraph 6(e) of the orders made by consent on 13 February 2012. 

2. It is not in dispute that the father did not make the children available to spend time with the mother that day however, he says that he had a reasonable excuse for contravening the order.

3. This matter has a long and very conflictual history. On 5 June 2009 after a 22 day hearing Bennett J made orders which reversed what, until then, had been an arrangement whereby the children lived with the mother and spent only supervised time with the father on the basis of allegations of sexual abuse made by the mother against him. Bennett J found that the allegations of sexual abuse were unfounded and that in all of the circumstances it was in the children’s best interests that they live with the father. Her Honour made orders for the mother to spend supervised time with the children for a period of six months increasing to unsupervised time each alternate weekend. In April 2010 the father filed an application seeking to vary the orders made by Bennett J and sought orders that the mother’s time with the children continue to be supervised indefinitely.

4. The problems with the mother’s time with the children continued until 13 February 2012 when, following a psychiatric assessment of the mother, family therapy with Dr JJ and the preparation of a family report by Mr N, the father and mother consented to a discharge of the orders made by Bennett J on 5 June 2009 and replacement orders which provided for the two children of the marriage to continue living with the father, that he have sole parental responsibility for them, and that the parties and the children attend upon a counsellor nominated by the Independent Children’s Lawyer for the purposes of facilitating and progressing the mother’s time with the children from supervised to unsupervised time.

5. These orders provided for the implementation of time commencing with supervised time, thereafter moving to unsupervised but not overnight time, and thereafter moving to each alternate weekend from 10.00 am Saturday to 5.00 pm Sunday for a period of six months, and thereafter from after school on Friday until 5.00 pm Sunday in each alternate week. The orders also provided that the mother’s time with the children only be increased to alternate weekends from 10.00 am Saturday to 5.00 pm Sunday upon the recommendation of the counsellor nominated by the Independent Children’s Lawyer.

6. The parties attended upon Ms MM as recommended by the Independent Children’s Lawyer and it is common ground that there was agreement, based upon the recommendations of Ms MM, that the mother spend increasing periods of time with the children, ultimately staying overnight with the mother for the first time on 3 November 2012. The children stayed overnight with the mother on three occasions prior to the weekend of the 15 December 2012 when the mother alleges that the father contravened the order.

Legal Principles

1. Section 70NAC of the Family Law Act 1975 (Cth) (“the Act”) provides that a person is taken to have contravened a parenting order if:

   (a)where the person is bound by the order — he or she has :

   (i)intentionally failed to comply with the order; or

   (ii)made no reasonable attempt to comply with the order; or

   (b)otherwise — he or she has:

   (i)intentionally prevented compliance with the order by a person who is bound by it; or

   (ii)aided or abetted a contravention of the order by a person who is bound by it.

2. Section 70NAE(5) of the Act sets out the circumstances in which a person is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending that time together as follows:

   (a)   The respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)  The period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).  

3. However it is clear as affirmed by Warnick J in Childers v Leslie (2008) FLC 93-356 that s 70NAE(1) of the Act is inclusive and the circumstances in which the court might find that there was a reasonable excuse are not limited to actions necessary to protect the health and safety of a child.

4. The standard of proof for the purposes of this application is the balance of probabilities. The mother bears the onus of proof of establishing that the order has been contravened and the father bears the onus with respect to establishing that there was a “reasonable excuse” for that contravention.

Alleged Contravention

1. In this case the father, having admitted that he did not make the children available to spend time with the mother on 15 December 2012, bears the onus of proving that he had a reasonable excuse for not doing so.

2. It is his case that when he collected the children following the first occasion of overnight time with the mother the children were crying hysterically as he reversed out of the driveway of the mother’s home. After driving around the corner he stopped to comfort the children who told him that they had been scared all night and that the mother had refused to let them call him for comfort because she told them she was not allowed to call the father’s home when the children were in his care and that it would be unfair if they were allowed to call him when they were in her care. The father also deposed that the children had complained about the mother denigrating him, a significant issue throughout the proceedings.  

3. The father says that the children asked to see Ms MM and it is common ground that the parties and the children attended upon Ms MM on 13 November 2012. In the course of that meeting the children discussed with the mother and Ms MM the need to give overnight time another go and the father deposed that it was agreed that it would be appropriate for the children to be able to call the father to talk to him and to say goodnight if they wished to do so. The father also agreed that when the children were in his care they should be allowed to call the mother if they wished to do so.

4. The father’s case is that at that meeting the parties also discussed the children’s wish to attend a church youth night on 1 December 2012 and that Ms MM suggested that arrangements be put in place for the children to attend.

5. The father deposed that on 17 November 2012 following the meeting with Ms MM the children spent the night with the mother, that as agreed they were able to telephone the father to say goodnight and that both of the children seemed happy. He says that upon their return to his care the children reported having discussed the church youth night with the mother and that the mother had agreed that they could attend as a result of which the father emailed the mother proposing that he collect the children beforehand and return them to her care the same night so that she could spend the remainder of the weekend with them.

6. The father’s evidence is that what followed was a series of emails from the mother in which she firstly suggested that the children not be returned to her care after the youth night and thereafter said that she would not agree to them attending the youth night as they were to attend a function at the CC Church in Town BB with her. He says that the children attempted to discuss the matter with the mother but that she would not agree to them attending the youth night notwithstanding their previous agreement with the mother.

7. The father says he encouraged the children to go to their mother’s as scheduled and prepared them for the possibility that they would not be able to attend the youth night.

8. The father says that at 12.26 pm on Saturday 1 December 2012 he received a call from one of the children asking to be picked up. He said that she was whispering but was “very distraught” and that the phone went silent and was hung up. As the father was unwell, he asked his wife to go and collect the children on his behalf. He says that when his wife and his mother arrived at the mother’s home one of the children was at the window mouthing “she won’t let me out” and was banging on the window. He said they then observed the same child going to the front door, attempting to get out and being pushed back inside by the mother. The father’s mother advised the mother that they would be calling the police for assistance. Some five to ten minutes later the mother left her home with the children in her car. She pulled up next to the father’s wife and mother and told them that the children were fine. The father said that he had been told by his wife that the children were sobbing.

9. It is common ground that the children attended the function proposed by the mother at CC Church. At approximately 9.30 pm that night the husband said he received a call from the children, that the children were sobbing and that they told him they were scared and wanted to come home. The father reassured them that he would be there to pick them up at 5.00 pm the following day and that they should go to sleep.

10. The father says that when he collected them the following day the children were both crying hysterically and told him they never wanted to go back to their mother’s home again and that they thought that the mother was not going to allow them to go home that night. The father also deposed that the children described the mother denigrating him, that they had both been made to read the orders dated 13 February 2012 and that the mother had explained to them that no function was going to interfere with her time with them, especially not one that he wanted to take them to. He said that the children had told him that they did not feel safe or comfortable with the mother.

11. As a result of what had occurred, the father emailed Ms MM to arrange for her to speak to the children as both children were adamant that they did not want to go back to their mother’s home and definitely did not want to stay overnight. Ms MM made an appointment for the following Tuesday 4 December 2012. The mother did not attend the appointment with Ms MM. Ms MM spoke to the children and the father says thereafter advised that she felt it was not in the children’s best interests to visit the mother whilst the issues that had arisen remained unresolved and scheduled a further appointment for 22 January 2013. On 14 December 2012 Ms MM forwarded an email to both the father and the mother in which she said as follows:

    My current view is the teething problems of the children’s weekend time with [the mother] need to be worked out with [the mother] and the children. I would have preferred to have this occur with [the mother] in attendance at the appointment on the 4^th of December 2012; unfortunately [the mother] was not able to attend leaving the issue between the children and [the mother] unresolved. That appointment is now scheduled for the 22^nd of January 2012 (sic); this is my earliest availability. At this point given the issues between the children and [the mother] are unresolved I do not believe it is in the children’s best interests to attend weekend time with their mother, until that appointment occurs …

    I think further parental conflict over or in front of the children or conflicts overt or covert between [the mother] and the children is not in their best interests, as this will only exacerbate the current difficulties.

    I would recommend that the children and [the mother] try to maintain positive telephone contact over the next few weeks, leading up to the appointment on the 22^nd of January 2013. It is my view that if the calls are pleasant and the emotional turmoil of the last two visits has been able to settle the children are more likely to be able to move forward in January.

12. The mother conceded that there had been some discussion at the meeting with Ms MM on 13 November 2012 about the children’s wish to attend the youth night, albeit that she suggested that it was only one of the children who wished to attend and that there had not been any agreement reached. She also acknowledged that although she said she had made arrangements for the children to attend a family function at CC Church on the same date, she had forgotten, and it was not mentioned at the meeting with Ms MM. This is consistent with her email to the father dated 22 November 2012 that the tickets had arrived that day, reminding her of the date. She did not give evidence to the contrary or cross-examine the husband about his evidence that the children had told him that they had discussed their attendance at the youth function with the mother and that she had agreed that they could attend. In all of the circumstances I am satisfied on the balance of probabilities that the mother had agreed that the children could attend the youth function as discussed with Ms MM, later changing her mind, and that in all of the circumstances the children would have been expecting to attend.

13. The mother also conceded that the children were upset about not being able to attend the youth night, although it was her case that it was primarily an issue for one of the children who had a “hissy fit” and that, although the children were initially upset, they got over it and had a great time at the function she took them to, that she and the children had dealt with the issue, and that the children were enjoying themselves until they went home to the father. She also suggested that the children were more upset by the father’s wife and mother arriving with the police, although there is no evidence before me that the police did in fact attend.   

14. Whether or not the children had resolved any issues they may have had by the time they left the mother’s home or, as the father deposed, were upset when they were collected by him, and whatever the cause of them being upset may have been, it is clear from Ms MM’s email to the parties dated 14 December 2012  that after speaking to the children it was her opinion that there were issues with the children’s time with the mother and that her advice was that until those issues were resolved it was not in the children’s best interests “to attend weekend time with their mother”.

15. The mother acknowledged receiving the email from Ms MM, however it was the mother’s case that they had attended their last session with Ms MM pursuant to the orders and that Ms MM had completed her role with the family and no longer needed to see the children. She did not attend the appointment on 22 January 2013. Her case was that Ms MM’s role was to facilitate her spending overnight time with the children and that once overnight time commenced she had no further role. This, of course, is not consistent with her own evidence that after the first occasion of overnight time the parties and the children attended an appointment with Ms MM to discuss issues that had arisen. It is difficult to see why a matter of weeks later the mother would say that Ms MM should no longer provide assistance to the family. To the contrary, Ms MM would appear to be well placed not only to make the observations she did about what she considered to be in the best interests of the children but also to assist the parties and the children to resolve any issues that might arise. The mother herself relies upon the recommendations of Ms MM with respect to the children being ready to spend overnight time with her.

16. The mother also said that she was not given sufficient notice of the appointment on 4 December 2012, had other commitments at that time and finally, that she could not afford the ongoing appointments with Ms MM. However, there is no evidence of the mother attempting to either negotiate with the father in relation to the cost of the attendance upon Ms MM on 4 December 2012 or making another appointment with Ms MM at a more convenient time.

17. Following the appointment on 22 January 2013 the father forwarded an email to the mother advising her of the outcome of the session with Ms MM as follows:

    … Upon conclusion of the session, [Ms MM] has advised that it is her professional opinion and within her capacity under the current orders [L] and [S] are not ready for the progression to overnight time with you.

    It has been suggested to which I agree that the children’s visitation recommence for day time only, from this Saturday 26^th January 2013 between 10am and 5pm and each fortnight thereafter, and that the children be monitored by [Ms MM], for their readiness in the future, to possibly to progress to overnight time.

    Can I suggest that in the future, for this to work, you will need to come and be involved in these sessions with [Ms MM], as it is what was intended for us as per [Mr N’s] last report dated 27^th January 2012.

    I believe that it should be at least a minimum of 6 months, to which the girls visit on a Saturday 10-5pm each fortnight, to enable them to resettle and feel confident with the visitation.

    I am sure that over time this whole issue could be sorted, without court and a judges (sic) intervention, but in saying that, I have prepared my application to have current orders dated 13^th February 2012 varied …

18. On 25 January 2013 the mother sent an email to the father advising him that she was looking forward to seeing the children that Saturday and that she would “collect them at 10am and see what their thought are of staying overnight. I am happy for them to stay over as per the Orders however, given I want what is best for them, if they want to return to you at 5.00pm, I will make them available for you to collect them.”

19. I am satisfied  that as the children did not stay overnight with the mother this weekend that they did tell the mother that they wanted to return to the father and that she accepted that this was what they wanted. The husband says that after spending time with the mother the children told him that the mother had told them that she would accept day time until the hearing of her application for contravention on Tuesday 12 February 2013. This was not challenged by the mother. On 12 February 2013 the proceedings were transferred to this Court. The mother has continued to spend time with the children during the day each alternate weekend pending the determination of her contravention application.

1. Both parties focussed on the question of whether the sessions with Ms MM on 4 December 2012 and 22 January 2013 were or were not in accordance with the orders made 13 February 2012. Whether the sessions with Ms MM were or were not court ordered is not really the point and I am satisfied that as a result of her involvement pursuant to the orders Ms MM was well placed to express an opinion about the children’s welfare and, more importantly, for the purposes of the contravention application it was reasonable for the father, given her previous involvement, to have arranged to attend with the children upon Ms MM and thereafter to act upon her advice.

2. In all of the circumstances, I am satisfied on the balance of probabilities that the father had a reasonable excuse for contravening the order on this occasion. Although Ms MM had previously recommended that the children’s time with the mother be increased to overnight time having consulted with both the father, mother and the children after the first occasion of overnight time, and the father and the children on the 4 December following the third occasion of overnight time, it was her clearly stated view, which she made known to both the father and the mother, that it was not in the children’s best interests to spend weekend time with the mother until the issues between the mother and the children had been resolved. I am satisfied that it was reasonable in all of the circumstances for the father to have accepted and acted upon that advice. On that basis I propose to dismiss the mother’s application for contravention.

3. I note that the mother has filed a further Application for Contravention which has been listed for hearing in the Judicial Duty List on 10 May 2013. The father has filed an Application seeking to vary the orders of 13 February 2012. That application will have to await the determination of the mother’s Application for Contravention. Arguably, the contravention application will do little to resolve what appear to be the underlying issues in this case. Although the mother is entitled to file an application that the father be dealt with for contravening the order and to have that application heard and determined by the court, it is important to bear in mind that contravention proceedings are intended to ensure compliance with orders but do not necessarily address the question of whether the orders sought to be enforced may themselves be deficient or not in the children’s best interests. It is open to the court pursuant to s 70NBA of the Act to make an order varying the primary order because it is the best interests of the child or children that are paramount. Given the history of this case, I do not propose to do so until I have heard from the father and the mother with respect to this issue, albeit that this may not be possible until the mother’s further contravention application has been heard and determined.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 6 May 2013.

Associate: 

Date:  6 May 2013