LAWRENCE & DEHN

[2015] FamCA 475

FAMILY COURT OF AUSTRALIA

LAWRENCE & DEHN [2015] FamCA 475

FAMILY LAW – CONTRAVENTION – Where the mother seeks a contravention order – Where the father found without reasonable excuse to have contravened the orders – Where more serious contravention – Where orders varied pursuant to s 70 NBA – Where father ordered to enter into a bond – Where father ordered to pay costs

Family Law Act 1975 (Cth)ss 70NBA, 70NFA, 70NFE

Lawrence & Dehn [2014] FamCA 517
McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92
McClintock & Levier (2009) 41 Fam LR 245

APPLICANT: Ms Lawrence

RESPONDENT: Mr Dehn

FILE NUMBER: PAC 4894 of 2008

DATE DELIVERED: 17 June 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 18 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Batey

SOLICITOR FOR THE APPLICANT: Smythe Wozniak Legal

COUNSEL FOR THE RESPONDENT: Ms Boyle

SOLICITOR FOR THE RESPONDENT: Eddy Neumann Lawyers

Orders

1. The parties do all things and make all necessary arrangements and appointments for the parties and the children to attend for family therapy provided by Mr H and attend and ensure the children attend and/or undertake all therapy recommended by Mr H. The child C’s attendance at family therapy is subject to the advice and recommendations of his treating medical professionals.

2. That the parties shall be at liberty to provide Mr H copies of the affidavits in this matter and a copy of the Family Report dated 28 April 2013

3. That the father pay the mother’s costs of these proceedings as agreed, or failing agreement, as assessed.

4. That any sum payable by the father in respect of Order (3) for costs be applied to the reduction of the mother’s child-support liability.

5. That the father advise the mother immediately as to any change or addition to the child’s treating medical practitioners and any change in the hospital or addition of any other medical facility in relation to the treatment of the child.

6. The father is required to enter a bond without surety and without security in the sum of six thousand dollars ($6000) to be of good behaviour for a period of eighteen (18) months from the date of this order

7. Pursuant to section 68L of the Family Law Act 1975 (Cth), interests of the children F born in 2001 and the child C born in 2000 are to be independently represented by a lawyer in these proceedings.

8. The Legal Aid Commission of New South Wales, Parramatta Office, is requested to make arrangements as soon as practicable to secure appropriate representation for the children’s interests. The Legal Aid Commission is to be provided with a copy of these Reasons for Judgment for their information.

9. The parties are to provide to the Parramatta Office of the Legal Aid Commission of New South Wales, at Level 5, 91 Phillip Street, Parramatta NSW 2150 or DX 8293 Parramatta, forthwith copies of all documents upon which the parties rely in these proceedings, together with all existing Orders and copies of any relevant reports.

10. Leave is granted to the Independent Children’s Lawyer, when appointed, to issue such subpoena as he / she considers relevant to the issues before the Court.

11. Leave is granted to the Independent Children’s Lawyer, when appointed, to have photocopy access to documents produced on subpoena in these proceedings.

12. The Independent Children’s Lawyer is exempt from fees pursuant to Division 2.3 of the Family Law (Fees) Regulations 2012 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lawrence & Dehn 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 PARRAMATTA

FILE NUMBER: PAC 4894  of 2008

Ms Lawrence

Applicant

And

Mr Dehn

Respondent

REASONS FOR JUDGMENT

introduction

1. Following the breakdown of their 10 year marriage in 2005 the parties reached agreement in relation to the future parenting of their two children, C and F, in which the children lived with their mother, Ms Lawrence, and spent time with their father, Mr Dehn. The children’s circumstances then changed significantly and they came to be cared for by their father.

2. On 7 May 2013 final parenting orders were made by consent by a judge of this Court. In broad terms the orders provide that the father have sole parental responsibility for the children and that they live with him and spend time with their mother, for a few hours on a Sunday afternoon once per month and on special days. The orders also require the father to provide the mother with details of medical attendances by the children in relation to any significant illness in a timely fashion. This order is of significance as the child has had serious health difficulties throughout his life, including a brain tumour.

3. On 11 July 2014 I found that the father had committed a contravention of one of these parenting orders by failing to provide the mother in a timely fashion with details of medical attendances by the child in relation to significant illnesses between 15 December 2013 and 18 April 2014. Pursuant to s 70NBA I varied the primary orders by making an additional order allowing for the mother to receive information directly from the treating medical practitioners in relation to the children’s health. The balance of orders by way of penalty were adjourned to a future date. The mother had also brought a second application alleging two further contraventions which were not dealt with at the time.

4. After the contravention was found proved there were a number of other Court events and the matter was adjourned on a number of times. Although the mother had not at that stage pursued her second contravention application, it was common ground between the parents that the mother has not spent any time with the children in accordance with the orders.

5. During this period of successive adjournments from August 2014 to May 2015 orders were made by consent for the parties and children to attend family therapy, so long as it was not contraindicated by the child’s treating medical practitioners.

6. At a court event on 15 December 2014 an Independent Children’s Lawyer (ICL) was appointed and it was hoped that this lawyer could assist in facilitating the family therapy and provide relevant information to the court. The Legal Aid Commission, as I understand it, declined to fund an ICL in this matter because the proceedings have to date related only to a contravention.

7. Family therapy was not successful in the sense that it did not result in a rekindling of the relationship between the children and their mother.

8. On 18 May 2015 final submissions were made by each of the parties in relation to penalty with respect to the proven contravention. This judgment deals with that matter.

Background

1. In order to understand the submissions of the parties in relation to penalty, some further detailed background is required.

2. The father, who is 49 and the mother, who is 44, were married in 1995.

3. The elder child, C was born in 2000 and is currently 15. The child has an intellectual disability, which may be a result of an acquired brain injury in relation to a brain tumour which has been present since he was an infant and associated surgery. As I understand it, the surgery removed a large part of the brain tumour.

4. In November 2001, the parties’ second child, F, who is now aged 13 was born.

5. In January 2005 the parties separated.

6. Pursuant to orders made in October 2005 in the Federal Magistrates Court, as it was then known, the children lived with their mother and spent four out of five weekends and holiday time with their father.

7. Although it was not known by the father at the time, in 2005 the mother developed an dependence upon the drug methamphetamine, commonly known as “ice”. She also at some stage dealt in this substance and associated with the criminal milieu, including forming personal relationships with others involved in criminal activity.

8. In September 2007 the parties divorced. The father has subsequently remarried and he and his partner have two children.

9. At some time in 2011 there was an incident at the mother’s home which has been described as “a home invasion” at which the children were present. This involved three men with a gun and a bat breaking into the home, assaulting another man and stealing money, to which police attended.

10. On 7 September 2012, the father retained the children in his full time care. In addition to the home invasion, it is not disputed that the child was maltreated by a friend or partner of the mother, who had been in some way involved in the care of the children. It is the father’s case that the children were also neglected by the mother. I understand that the Department of Family and Community Services was involved at the time, though the nature and extent of this involvement is unknown.

11. Interim orders made on 17 September 2012 provided for the children to live with the father and spend time with their mother, supervised by a maternal uncle each Sunday afternoon. As I understand it, F did not always attend these visits. Further interim orders were made in November 2012 in relation to the children’s time with their mother.

12. The mother completed a three-week residential drug rehabilitation program in October 2012, and it is her case that she has not used any illicit substance since September 2012.

13. In February 2013 a family report was ordered. This report was released in April 2013.

Family Report

1. At the time of the assessment by a family consultant the father’s proposal was that the children spend a weekend, from Friday to Monday, with their mother once per month, so long as she remains drug free and does not engage in dealing activity and expose the children to other drug users and offenders. According to the family report tendered in these proceedings by the father, the father described this proposal to the family consultant as a long term proposal in relation to the future parenting of the children and did not wish to return to Court for parenting matters. At that stage the father also told the family consultant that he envisaged the children spending additional time with their mother in the future if they want to, and if the mother is drug free.

2. The family consultant was of the opinion that although the father appeared to indicate that he was prioritising the safety and stability of the children, whilst facilitating an opportunity for them to maintain a relationship with their mother, he indicated that he would struggle to facilitate that relationship. At that stage the children, especially F, had been refusing to spend time with the mother, but the father was unable to provide any suggestions as to how the relationship could be encouraged. The family consultant was of the opinion that the father displayed apparent contempt for the mother, had little respect for her and seemed to view the children’s resistance toward her to be justified punishment of her. The family consultant was of the view that the father did not seem to have any genuine belief that it was in the children’s best interest to have a relationship with their mother.

3. Although it is not entirely clear, it appears that at the time of the assessment by the family consultant in April 2013, recent hair follicle tests indicated that the mother was using methamphetamine, though the timeframe that this use relates to is not clear. The family consultant was of the opinion that the mother had acknowledged responsibility for her past behaviour but did not appear to appreciate fully the risk that she had placed the children in or the emotional impact that her behaviour had on the children and tended instead to blame the father for turning the children against her and exaggerating the level of risk to the children in her care.

4. The family consultant was particularly concerned about the home invasion incident, the mother’s ongoing drug use after this incident and placing the children in the care of an abusive former associate and felt that the mother’s descriptions indicated that she minimised the risk of harm that the children were exposed to. The family consultant was also concerned that based on the mother’s own reports of the drug use and F’s reports that the mother was “substantially physically and emotionally unavailable to the children”. The mother’s statement to the family consultant that the children’s experiences weren’t “that bad” was, in the view of the family consultant, “indicative of her minimisation of the children’s negative experience and her struggle to appreciate F’s emotional experience and the impact of that on the relationship.”

5. The family consultant was also concerned about the possibility of the mother’s continued methamphetamine use, which if correct would raise serious concerns about her ability to maintain abstinence, her recognition of risk to the children, her ability to prioritise the children’s needs over her drug dependence and would call into question her honesty in the proceedings. In the opinion of the family consultant, it may also possibly indicate a serious personality disturbance or significant mental health problem. The family consultant described ongoing methamphetamine use, if it occurred, as a “major risk factor for the children”.

6. The recommendations of the family consultant were that some measures could be put in place to minimise the risk of harm to the children, such as spending small amounts of time with the mother, and having that time supervised. Taking into consideration the risk factors, the family consultant was of the view that the children should be encouraged to maintain a meaningful relationship with their mother in circumstances which minimise the risk of harm. She was concerned that there was a risk that the mother may be demonised which she did not consider to be beneficial to the children.

7. The family’s consultant’s general conclusion was that “it is vitally important that [the father] is able to encourage the children’s relationship with their mother, whilst prioritising their safety.” She also emphasised that the children need to be protected from the parents’ conflict. The recommendation was that the children live with their father and spend time with their mother once per month for a day on the weekend in the company of a maternal family member and additional time in accordance with any agreement reached between the parents. Other recommendations were made, including that the children should be given an opportunity to speak to their mother by telephone once per week, that they participate in specialised counselling for children affected by a family member’s drug use and that the mother continue to participate in ongoing drug testing.

The Orders

1. The recommendations of the family consultant were not tested as the matter did not proceed to trial, but was settled by way of consent orders on 7 May 2013. Those consent orders are largely as recommended by the family consultant but provide for the mother to spend less time with the children than had been recommended. This time is for four and a half hours on the first Sunday of each month, Mother’s Day and Christmas Day and such other times as is agreed to between the parties. All of the time the children spend with their mother is to be supervised by a maternal uncle, aunt or grandmother. Additionally, the orders provide that the mother is to telephone the children by calling F’s mobile telephone once a week. The orders also provided for the mother to undergo hair follicle drug testing on two occasions within 12 months of the final orders.

2. As previously noted, there was also a specific order in relation to information about medical attendances and significant illnesses in relation to the children. That order is in the following terms:

   20. That the father provide the mother in a timely fashion with details of medical attendances by either of the children in relation to any significant illnesses and any relevant information and reports and the mother shall be at liberty to telephone the children’s medical practitioner.

3. From the time the orders were made in May 2013 the father took the children to the designated changeover location on the designated Sunday once a month but the children did not get out of the car. On each occasion F said to the mother “we aren’t going to see you today” or words to similar effect. The mother has also had very little contact with the children on the telephone since the orders were made.

the contravention

1. The following facts are taken from the findings set out in my Reasons for Judgment dated 11 July 2014 (Lawrence & Dehn [2014] FamCA 517) and from the undisputed facts in the affidavits of the parties subsequently filed in relation to penalty.

2. In November 2013, the child C started having seizures related to his brain tumour again after a long period where he had been seizure free.

3. In an email dated 24 November 2013 from the father to Dr D, a paediatric neurologist treating the child, the father requested an urgent appointment with Dr D for the child, who had “recently shown signs of at least four significant absenteeisms over the last two weeks with two this afternoon”. This email also says “please don't contact the childs maternal mother (sic) [Ms Dehn] ([Lawrence]).”

4. Dr D's records indicate that the child was seen with his father at the neurology clinic at Sydney Children's Hospital on 24 January 2014. The mother was at this time unaware of any health issues regarding the child.

5. Between 17 and 23 March 2014 the parties communicated via email in relation to signing passports for the children.

6. On 21 March 2014 the mother received some information from a friend, concerning the child’s health.

7. On 23 March 2014 arrangements had been made for the children to attend lunch with the mother and maternal family members and after lunch the mother was to sign the passport forms. The father arrived at the restaurant with F on that day but not the child. F did not pass from her father’s care on that day and the family lunch with the children or signing of the passports did not eventuate.

8. On 24 March 2014, the mother spoke to Dr D on 24 March 2014 who told her that there were “some issues [with the child’s health]”.

9. On 25 March 2014, through arrangement with the principal of F’s school, the mother spent time with F at the school in the presence of the school counsellor and the principal. The mother signed F’s passport application and provided F with a mobile phone.

10. The mother had a further conversation with Dr D on 26 March 2014.

11. On 14 April 2014 the mother’s solicitors wrote to the father informing him of the information the mother had concerning the child’s medical condition and treatment and informed him that he was in contravention of the court orders. The solicitors said that they “[r]equire that [the father] advise [the mother] when and where the child will be undergoing surgery.”

12. On 1 May 2014 the father sent an email to the mother, which said

    as per cause (sic) 20 of the court orders, the child has been diagnosed with a tumour in his left forearm and is being referred to [G Hospital] today. No appointment has been confirmed at this stage.

    This email made no reference to the brain tumour, nor did it provide any details in relation to the treatment for the child’s tumour in his forearm. The father also wrote “please note your email and phone have been blocked as a result of your history of harassment via these channels”

13. Some time prior to 1 May 2014 the child had been diagnosed with a malignant tumour in his forearm. This condition is described by the child’s oncologist, Dr K as “a life-threatening disease… where even the possibility of amputation has been entertained”. The child commenced chemotherapy treatment in May 2014 for this tumour which involved regular hospitalisation over a course of four months. It is not clear when the mother became aware of the seriousness of this condition.

1. On 5 May 2014 the mother filed her contravention application and the matter first came before the Court on 30 June. On 11 July 2014 the contravention in relation to the father’s failure to provide information concerning the child’s medical treatment was found proved in the father’s absence. The matter was adjourned to 1 August.

2. On 1 August 2014 the father sought to reopen the proceedings to adduce evidence in relation to a reasonable excuse for the contravention. This application was dismissed and the matter was adjourned to 12 August 2014 in relation to penalty for the contravention.

3. On 3 August 2014 when the children were next due to spend time with the mother, the father arranged for the children to be taken by another person to the changeover point specified in the orders to spend time with their mother. The children apparently did not leave the car and passed letters they had written at the suggestion of the father to the mother. The father says that the child wrote his letter on Saturday 2 August and F wrote hers on Sunday 3 August and that with the children’s permission he took a photocopy of each of the letters.

4. On 12 August 2014 at a Court event when orders were made, it was noted that the children had not been spending time with their mother in accordance with the 7 May 2013 orders and that therapy with a qualified therapist was to commence to facilitate this time commencing. The parties consented to orders for them to attend upon a therapist for the purposes of confidential family therapy and both children were to attend as required by the therapist, subject to the opinion of the child’s oncologist so far as his attendance was concerned. The primary orders for the mother to spend time with the children were also suspended at this time.

5. On 20 August 2014 the oncologist expressed the view that while he understood the logic of counselling at that stage, the child was going through what the doctor described as “a major ordeal in the treatment of his cancer”. The doctor was of the opinion that any such counselling “would best take place once [C] has got through his current crisis”.

6. C underwent surgery to remove the malignant tumour from his forearm on 29 September 2014. The mother attended the hospital at that time, but was not permitted to see the child.

7. It is not clear from either parent’s affidavit when the therapist Mr L began seeing F. In an email to the father’s legal representative, Mr L said that he saw F on three occasions and found her to be compliant and the father supportive of the process. In the email dated 14 December 2014, Mr L expressed the opinion that F was not, at that stage, ready to meet with her mother and recommended that more time be allowed “for old wounds to heal”. He said that he would be willing to play a role in further counselling although it may take “upward of six months for F to regain some semblance of trust in her mother”.

8. As at May 2015 the chemotherapy program for the child’s malignant tumour in his arm was complete and his treating practitioners were determining the appropriate treatment for his brain tumour. As I understand it, there have been several specialist medical practitioners involved in the child’s care, including an oncologist, orthopaedic surgeon, neurologist and a neurosurgeon.

9. The current position of the child’s treating oncologist, Dr K, in relation to the child’s contact with his mother is unclear. In a letter dated 13 May 2015, directed “to whom it may concern” attached to the father’s affidavit the doctor said, in relation to the upcoming brain surgery that “the stresses on [the child] remain enormous”. He went on to say

   I continue to believe that we should avoid the addition of further stresses over these next several months at least, and if a reintroduction of his mother to [the child’s] life was to pose such a stress, then I would think that this would not be optimal timing for such a reintroduction

   However, in a letter attached to the mother’s affidavit from Dr K directed to the Court dated 5 May 2015, the doctor states that he understands that the mother would like to visit the child during hospitalisation. He says

   I can confirm that supervision can be provided during any visits which the Court allows, provided that they are during regular working hours. Furthermore I would consider it feasible that times can be identified for any such visits to be at times when [the child’s] father...is not present.

10. In an affidavit filed by the mother, a senior clinical psychologist at the Children’s Hospital, who previously knew the mother when the parents were married and the child was receiving treatment in relation to his brain tumor as an infant, says that she is prepared to manage the reintroduction of the mother to the child and provide directions to the mother in relation to how this should occur with a view to minimising the psychological risk to the child while he is in hospital should the mother elect to attend before, during or after any medical procedure. She says that any management or direction she will provide will be in consultation with the child’s health professionals.

the law

1. Contraventions are dealt with under Part VII, Division 13A of the Family Law Act 1975 (Cth) (‘the Act’).

2. The scheme of the Division is that a proven contravention where there is no reasonable excuse can be dealt with as either a less serious contravention under Subdivision E, or a more serious contravention under Subdivision F.

3. In addition, the Court always has the power to vary an order under s 70NBA . That power was exercised to deal in part with this contravention on 11 July 2014, the date on which I found the contravention proved. On that date I varied the primary order by adding an additional order as follows

   The mother is permitted to communicate with and attend upon any treating medical practitioner in relation to treatment provided to the children for any significant illness or condition and to receive any relevant information and reports and such treating medical practitioners are hereby authorised to provide such information directly to the mother.

Less serious or more serious contravention?

1. So far as the balance of penalty is concerned, it is submitted on behalf of the mother that Subdivision F should apply, that is, that the contravention should be treated as a more serious contravention. The orders proposed by the mother are further variations to the primary order under s 70NBA, and it is submitted that the father be subject to a bond by way of penalty.

2. So far as the bond is concerned it is submitted on behalf of the mother that the father has indicated by his actions that he has no intention of complying with order 20 of the May 2013 orders (the order which has been contravened). It is submitted that nothing short of a bond is appropriate in these circumstances.

3. No submissions were made on behalf of the father about whether the contravention should be dealt with under Subdivision E or F.

4. It is submitted on behalf of the father that the Court should not impose a bond without having any evidence of the children’s views, which must be a relevant issue to the father’s compliance with orders in the future. It is also submitted that the variation made on 11 July 2014 gives the mother power to deal with the doctors directly and that a bond will not assist in the enforcement of the orders. It is also submitted on the father’s behalf that the primary order 20 be discharged so that the father is relieved of any ongoing obligation in relation to providing information to the mother as the mother is able to obtain that information directly under the order made on 11 July 2014.

5. I am of the view that this is a matter that should be dealt with under Subdivision F, that is, as a more serious contravention. In order to be treated under Subdivision F, s 70NFA(1) provides that a primary order must have been made, the Court must be satisfied that the person has committed a contravention and has not proved a reasonable excuse and either s 70NFA(2) or (3) applies. As noted above, there is a primary order and I have found a contravention without reasonable excuse.

6. Section 70NFA(2) applies where a Court has not previously made an order imposing a sanction or taking an action in respect of a contravention or previously adjourned the matter in respect of a contravention (as is the case here) and the Court is satisfied that the person has behaved in a way that showed a serious disregard of his or her obligation under the primary order.

7. I am satisfied that the father showed such a serious disregard for the following reasons

   ·The father’s contravention was a continuing one over a period of some months. The father first contacted the child’s paediatric neurologist on 24 November 2013 requesting an urgent appointment as the child’s seizures had reappeared after a number of years without them having occurred. Even though he communicated with the mother on a number of occasions and for other purposes in March 2014, he did not mention the child’s medical condition. The father did not inform the mother of any concerns about the child’s medical condition until 1 May 2014, at about the same time that the child’s oncologist commenced chemotherapy for a malignant tumour in his arm which the doctor described as a “life-threatening disease”.

   ·The father asked Dr D, the neurologist, in November 2013 not to contact the child’s mother even though he was aware that order 20 provided that the mother “shall be at liberty to telephone the children’s medical practitioner”.

   ·In addition to contravening the order over five months, even then the father did not provide the mother with “details of medical attendances…and relevant information and reports,” especially in relation to the child’s malignant tumour. In his email of 1 May 2014, the father did not inform the mother of the child’s treating oncologist in relation to his malignant tumour in his arm. At that stage the mother had been communicating with Dr D, the neurologist, in relation to the brain tumour.

   ·The father’s email sent on 1 May 2014 also appears to have been prompted by a letter from the mother’s solicitors requiring further information in accordance with the orders, rather than as a result of an independent decision to comply with the primary order.

   ·Even when the father did provide some information to the mother on 1 May 2014, he added “please note that your email and phone have been blocked as a result of your history of harassment via these channels”.

   ·It also appears that the father continues to provide only minimal information to the mother rather than “any relevant information” as required by the primary order. Order 20 in its original form remains but the mother can only gain the benefit of the additional order made in July 2014 of obtaining information directly from treating medical practitioners and communicating with them and attending upon them if she is aware of the identity of those practitioners.

   ·The contravention was found proved in the father’s absence as he failed to attend Court when the contravention was dealt with.

8. As a result of these matters I also have real concerns about the father’s future compliance with the primary orders and the order made in July 2014. In accordance with the principles in the matter of McClintock & Levier[1], the focus of the Court when dealing with a contravention is to enforce future compliance with orders and the focus is on the individual concerned, rather than on general deterrence or policy.

   [1] (2009) 41 Fam LR 245 at [233]-[235] per Cronin J, at [156]- [158] per Coleman J.

Good behaviour bond?

1. The mother seeks that the Court impose a bond under s 70NFE, being one of the available penalties for a contravention of this subdivision.

2. Section 70NFB(1) provides that the Court must under this subdivision make an order that the person who committed the contravention pay all of the costs of the other party to the proceedings under this subdivision unless it would not be in the best interests of the children to make the order. No submissions were made on behalf of the father as to order 8 proposed by the mother. I am not satisfied that such an order would not be in the best interests of the children, so such an order in relation to costs will be made.

3. The Court is also required to consider making another order or orders under subsection (2) that the Court considers to be the most appropriate of the orders in the circumstances. The alternative orders available under subsection (2) are a community service order, an order requiring the person to enter into a bond, the imposition of a fine or a sentence of imprisonment.

4. As noted earlier, it is submitted on behalf of the mother that only the imposition of a good behaviour bond will result in the future compliance by the father with  the orders.

5. On behalf of the father it is submitted that such an order is not appropriate as it would not assist in enforcement of the primary orders. Secondly, it is submitted that it would not be appropriate to require compliance with orders through the imposition of a bond where the consequences of the bond are so serious, in circumstances where the orders require that the mother spends times with the children.

Variations to the primary order

1. On 18 May 2015, when submissions were made in relation to penalty, the father also filed an Application in a Case seeking to discharge the orders in relation to the mother spending time with the children, order 20 (the contravened order) requiring the father to provide certain medical information and orders associated with the children’s international travel. An order was also sought that Mr L, the therapist who engaged with the children in late 2014, provide a report in relation to F. It is proposed that this report assess F’s maturity, her wishes regarding spending time with her mother, and the impact upon F of being required to spend face-to-face time with her mother if the orders were not in accordance with her wishes and the impact upon F for family therapy with an alternative therapist.

2. In my view some of these orders sought are in the nature of final orders (such as no order for time with the mother) and should be sought by means of an Initiating Application. In any event, I was not in a position to deal with that application which was filed on short notice, particularly as the matter had only been listed for the purposes of completing of submissions in relation to the contravention and the other outstanding contravention. In the circumstances the father then sought that the Court adjourn submissions in relation to penalty and consider making only the order in relation to obtaining a report from Mr L. I refused the application to adjourn the proceedings on this basis especially as the penalty in relation to a contravention which occurred between November 2013 and May 2014 and found proven in July 2014 had not yet been finalised.

3. In relation to the father’s submission concerning the inappropriateness of requiring compliance with orders relating to the mother’s time with the children, having regard to the age of the children, the mother proposes that further orders be made to facilitate compliance with the primary orders rather than ensure compliance with them in their original form. It is to be remembered that from August 2014 the primary orders in relation to the mother’s time had been suspended and by consent family therapy intervention was to be attempted.

4. Submissions made on behalf of the mother in relation to the appropriateness of imposing a bond on the father, responding to the father’s submissions in this regard and seeking further variations of the parenting orders are interrelated.

5. In making this interrelated submission, it is submitted on behalf of the mother that s 70NBA(2) applies. That subsection provides that if Subdivision F applies to the contravention, when making an order varying a primary order in addition to regarding, under s 60CA, the best interests of the child as the paramount consideration, the Court must take other considerations into account if they are relevant. It is submitted on behalf on the mother that a relevant consideration is set out in s 70NBA(2)(c). This subsection provides

   because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court’s opinion, for the person to attend a post-separation program, or a part of such program

6. No submissions were put on behalf of the father in relation to this consideration. I am satisfied that it is not appropriate for the father to attend a post-separation parenting program in these circumstances. It does not appear to me that the father’s actions relate in any way to a lack of knowledge about post-separation parenting or that he would benefit from such a program.

7. In my view, having regard to the matters set out in paragraph 64 of these Reasons, the father is resistant to complying with any order which requires him to share any form of ongoing co-parenting with the mother. In his Application in a Case he now seeks that order 20 be discharged and also seeks that the orders in relation to the mother’s time with the children be discharged. Although the further contraventions relating to the mother’s time with the children have not yet been dealt with, it is not disputed that the mother has not spent time with the children since the orders were made as required by the orders.

8. The additional variations to the primary orders sought by the mother in these proceedings, set out as order 1 to 6 in her typed Minute and the additional handwritten order include a number of significant changes to the regime of time with the mother provided for under the primary orders. The proposed variations provide for the mother to attend at the children’s schools or a hospital at which a child is seeking medical attention “for the purpose of face-to-face contact” with the mother. They also propose that family therapy be conducted through an alternate therapist, Mr H. These variations are themselves parenting orders and thus I must treat the children’s best interests as the paramount consideration. In addition, for the reasons indicated earlier in this judgment, I must also take into consideration that because of the father’s behaviour it is not appropriate for him to attend a post-separation parenting program.

9. The orders permitting the mother to spend time with the children at a school or hospital are opposed by the father. So far as this time occurring at the school is concerned, I accept the submission put on behalf of the father that there is no evidence on behalf of either of the children’s schools that they would be prepared to facilitate such arrangements. So far the proposal for the mother to spend time with the children in hospital is concerned, the proposed variation is stated in very broad terms and is not limited to the current circumstances relating to the child. Even in relation to the child, as indicated earlier in my judgment, there is conflicting evidence from one of his treating practitioners, Dr K, as to whether a reintroduction of the mother to the child’s life would be stressful upon the child. For these reasons I am unable to find that orders 1 and 2, as proposed by the mother in relation to spending time with the children at school or hospital, are in the children’s best interests.

10. In relation to the mother’s time with the children, it is not proposed by the mother that the orders of May 2013, which were suspended in August 2014, continue to operate in their original form. It is proposed that the parties take necessary steps for the children to attend upon family therapy with an alternate family therapist, Mr H and follow directions and recommendations made by Mr H. The father’s concerns of serious consequences for him that may follow if he were required to enter into a good behaviour bond in circumstances where the children may not wish to see their mother in my view do not arise under the proposal of the mother. He will only be required to comply with the arrangements and appointments for the children to receive family therapy.

1. So far the best interests of the children in relation to the mother’s proposed orders are concerned, the starting point in my view is that in May 2013, the parties must have both been of the view and the Court was also of the view in making those orders, that those orders were in the best interests of the children. It is to be remembered that the amount of time that the children were to spend with the mother under those orders was less than the time recommended by the family consultant.

2. So far as the primary considerations are considered, in my view, the May 2013 orders do provide the children with the benefit of having some sort of relationship with their mother, although it may not be regarded as a meaningful relationship having regard to the meaning given to that expression by the Full Court.[2] The family consultant was of the view that the children should be encouraged to maintain a meaningful relationship with their mother in circumstances which minimised the risk of harm.

   [2] McCall & Clark (2009) FLC 93-405; (2009) 41 Fam LR 483; [2009] FamCAFC 92

3. So far as the risk of harm is concerned (being the other primary consideration to which greater weight should be attached) the May 2013 orders contain the safeguards recommended by the family consultant such as a limitation on the time, that it occur under supervision and that the mother continue to participate in ongoing drug testing. There is no evidence to suggest that the mother has continued to misuse any substance, or that these safeguards, particularly having regard to the age of the children, would not address the need to protect the children from harm. 

4. In relation to the additional considerations, I first have regard to the views expressed by the children. I do not attach weight to the children’s views as expressed in the letters that they handed to their mother on the last occasion that they saw her in August 2014 considering the circumstances in which those letters were written. Although F’s views, said to have been expressed to Mr L in late 2014, have not been put before the Court in an ideal manner, I do attach some weight, especially given her age, to her feeling “not ready at the moment” to see her mother.

5. Mr L did however say that it may take upwards of six months for F to regain some semblance of trust in her mother, and while he did not see further counselling as fruitful in December he said he would be willing to play a role at a later stage if the parents and F agreed. It is clear that the father and possibly F do not agree to further counselling. In my opinion, F’s view should not be determinative given that she is still only thirteen years old. The child’s views, at this stage, are unknown but in any event given his precarious health position and intellectual disability, this is also not determinative.

6. The children have been in the primary care of their father for two and a half years but I do not have any current evidence about their relationships. In April 2013, the family consultant said that the children appeared comfortable in their interactions with their father and stepmother. She said that the child had some negative views of experience with the mother, but also appeared “interested and keen to interact with” her. The family consultant reported that the child’s emotional connection to his mother is unclear but he appeared to have a significant lack of trust in her. The family consultant said it was also difficult to get a clear picture of F’s relationships. She noted that F’s description of her relationship with her mother was primarily negative, but was concerned about an element of influence from the father and stepmother, which she described as “not necessarily malicious, but more a misguided attempt at protection”.

7. Given that the father has held sole parental responsibility for the children since May 2013 it has not been possible for the mother to take the opportunity to participate in making decisions about long term issues relating to the children. It is not disputed that the mother had on each occasion attended the designated changeover place and time to enable her to spend time with the children under the orders and had a supervisor with her as required but the children did not ever pass into her care.

8. It appears from the reference to the mother’s child support liability in her proposed Minute of Orders that she is assessed for child support but no further evidence in relation to this matter is before me.

9. Under the proposed varied order there will not be any change in the children’s circumstances unless the proposed family therapy is successful. Currently the children are not spending any time with their mother; even the limited time provided for under the orders.

10. There do not seem to be practical difficulties with F attending the therapist as proposed. Mr L indicated that previously that F was compliant and the father was supportive of the process. In my view, the evidence concerning the child’s medical condition is such that any reintroduction of the child to his mother, including through a therapeutic process with a therapist should be subject to the opinions of the child’s treating medical and other health practitioners involved in his care.

11. Under the proposed variation it is only sought that the reintroduction of the children to their mother be facilitated through the use of family therapy. The primary orders are to remain suspended, rather than discharged. The final goal will only amount to four and a half hours of time per month with the mother. In these circumstances the capacity of the children’s parents is not a particularly weighty issue.

12. In my view, the fact that the orders have not operated in the manner intended since they were made is a significant factor in this case. While not having determined two outstanding contraventions there is no dispute that the children have not received the benefit of spending time with the mother, or communicating with their so that their relationship with her, even in the limited sense envisaged in the orders, has not been supported. The proposed Minute of Order that will allow for family therapy to occur under the direction and recommendation of an extremely experienced therapist, Mr H, is a further attempt to ensure that the children receive the benefit of the orders that the parents agreed to. In my view, it is appropriate and in the children’s best interests for them to receive therapy from Mr H, as Mr L only appeared willing to participate in further family therapy if agreed to by all of the parties, including F.

13. Having regard to the foregoing, I am satisfied that the mother’s proposed orders set out in orders 4, 5 and 6 of her Minute of Orders are in the best interests of the children. I make orders substantially in these terms with some amendments to allow for matters explored in these Reasons. I also make a further order in relation to the appointment of an Independent Children’s Lawyer as it is clear from the father’s application that he is now seeking to have the order with respect to the children’s time with their mother discharged.

14. In my view, having regard to the hierarchy of penalties available for more serious contraventions and in light of my findings concerning the contravention A bond is the appropriate penalty in the circumstances. The maximum length of such a bond is two years. In my view, an appropriate length in these circumstances is 18 months and the sum to be forfeited in the event of a breach should be $6,000.

15. I am of the view that an order incorporating some parts of the additional proposed order, requiring the father to advise the mother immediately of any change in the child’s condition or change or addition the medical practitioners, or any change in hospital or medical facility, is in the child’s best interest. As indicated in these Reasons, the mother cannot make her own inquiries and receive information independently of medical practitioners if she is not aware of them. However, I accept the father’s submission that the additional handwritten order is too broad and would be unduly onerous in requiring the father to advise the mother immediately of any change in the child’s condition given his significant health problems, but makes the orders otherwise as proposed by the mother

16. For the foregoing reasons I make the orders set out at the forefront of this judgment.

I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 June 2015.

Legal Associate: 

Date:  15 June 2015