MALCHER & MALCHER

[2014] FamCA 1215

FAMILY COURT OF AUSTRALIA

MALCHER & MALCHER [2014] FamCA 1215

FAMILY LAW – CHILDREN – Contravention of parenting orders – Where the mother proceeded on three alleged breaches of orders made on 16 July 2012 – Where the father conceded a prima facie case but unsuccessfully argued a case for reasonable excuse for each alleged breach – Where it was clear that the father had an obligation under the orders to return the children to their mother on Monday evenings – Where the father submitted that the orders were interim orders and they are now two and a half years old – Where the father submitted the children wished to stay with him on Monday evenings and a specific application for this was previously refused – Where the father submitted that it would be reasonable to accept that he had a subjective belief that his actions were justified – Where the parties have been separated for more than four years with a multiplicity of applications about parenting matters – Where the Court found three contraventions of the orders without reasonable excuse.
FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – Where both parties agreed that consideration of imposition of a sanction be adjourned until after the hearing of an interim application – Where the father hesitated to give an undertaking to comply with court orders pending the hearing of an application for variation of the orders – Where the Court therefore suspended the orders in relation to the children spending Monday afternoons with the father – Disqualification – Where the judge recused himself from hearing further applications involving the parents.

Family Law Act 1975 (Cth) – Division 13A, s 70NAE

Cavanough and Cavanough (1980) FLC 90-851
Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell (2000) FLC 93-053
Gaunt and Gaunt (1978) FLC 90-468
Stevenson and Hughes (1993) FLC 92-363

APPLICANT: Ms Malcher

RESPONDENT: Mr Malcher

FILE NUMBER: SYC 3808 of 2012

DATE DELIVERED: 20 October 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 20 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lawson

SOLICITOR FOR THE APPLICANT: Barkus Doolan Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Batey with Ms Beck

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

Orders

1. That Dr A’s supplementary report is released to all parties and that, except with the Court’s permission, no person is to release the report, or provide access to the report, to any person other than the parties, their lawyers and the Independent Children’s Lawyer.

2. That the Court notes that the father concedes a prima facie case in respect of each of the three alleged contraventions.

3. That the Court finds that the father has breached order 2.2 of the orders of 16 July 2012 without reasonable excuse, the breaches having been on 18 August 2014, 1 September 2014 and 8 September 2014.

4. That the requirement for the children B born on … 2002, C born on … 2003 and D born on … 2006 to spend the Mondays with their father pursuant to order 2.2 of the orders of 16 July 2012 is suspended pending further order.

5. That these proceedings are adjourned to 10:00 am on 2 December 2014.

6. That Justice Johnston is recused from involvement in further proceedings other than the immediate contravention proceedings.

7. That 31 October 2014 is vacated.

8. That all applications are listed before the docket registrar at 11:30 am on 17 November 2014.

9. That all costs are reserved.

10. That the father is released upon his undertaking to the Court to appear at Court at 10:00 am on 2 December 2014.

11. That leave is granted to the wife to relist these proceedings on short notice.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Malcher & Malcher 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 SYDNEY

FILE NUMBER: SYC 3808 of 2012

Ms Malcher

Applicant

And

Mr Malcher

Respondent

REASONS FOR JUDGMENT

1. These are contravention proceedings relating to two children, B who was born in 2002 and D who was born in 2006.  The children’s mother who is the applicant in these proceedings is Ms Malcher and the children’s father is Mr Malcher.  For convenience I shall refer to them as “the mother” and “the father”.

2. The mother has filed two contravention applications, the first filed on 9 September 2014 and in that application, the mother made three complaints.  Subsequently the mother filed a contravention application on 7 October 2014 and that application contained a further two complaints bringing the total to five complaints.

3. At the outset of the hearing today, I informed the mother’s counsel that I would hear three alleged breaches on the basis that the mother only needed to establish one of the alleged breaches in order to have a sanction imposed.  In the circumstances, I was informed that the mother would proceed on the basis of an alleged breach on 18 August 2014 and an alleged breach on 1 September 2014, both those complaints having been contained in the mother’s contravention application filed on 9 September 2014.  I was also informed that the mother would select as her third alleged breach the first of the complaints which she made in her contravention application filed on 7 October 2014, that is an alleged breach on 8 September 2014.

4. In accordance with the requirements of the law, I orally informed the respondent father about the three alleged breaches, that is that without reasonable excuse he failed to deliver the children to their mother as required under orders of the Court made on 16 July 2012 on each of those occasions.  In respect of each of those matters, the father denied that he had done any such thing without reasonable excuse.

5. The hearing then proceeded on the basis that the father conceded a prima facie case in respect of each of the alleged breaches but he would argue a case for reasonable excuse in respect of each of these.

6. The father had filed an affidavit which set out the evidence in his case for reasonable excuse on each of those occasions.  That was an affidavit which was sworn by him on 17 October 2014 and served on the mother’s solicitors in accordance with directions which I made on an earlier occasion. 

7. As I say, the three occasions were 18 August 2014, 1 September 2014 and 8 September 2014.  The relevant court orders were made on 16 July 2012 and were consent orders.  Included within the orders is order 2.2 which provides as follows:

   2.That the children live with the Father on a two-week cycle during the following times:

   2.1…

   2.2On week 2 from after school Monday to 7 pm Monday and from after school Tuesday to before school Wednesday.

8. So the relevant order is 2.2 and the relevant part is in week 2 from after school Monday to 7 pm Monday.  Each of the alleged breaches is said to have occurred on Mondays and each of them is said to have been Mondays which were regulated by those orders imposing obligations on each of the parties in respect of the children spending time with their father at those times.  There was no suggestion on the part of the father that the father was not aware of the orders.  In fact, he readily conceded that he was aware of the orders.

9. Having heard his cross-examination, it is clear to me that he understood that he had obligations under the orders to return the children to their mother at 7 pm on each of those occasions. 

10. What the father has offered by way of reasonable excuse is set out in his detailed affidavit.  There were some objections to the material in that affidavit but most of the affidavit has survived.

11. On my reading of the affidavit and my understanding of learned counsel’s submissions, what the father offers as a reasonable excuse is as follows.  The orders are interim orders and they are now two and a half years old.  The father was anticipating that he and the mother would be able to come to final arrangements about the parenting of the children and in view of the time since those interim orders were put in place, there have been numerous changes so far as the children are concerned.

12. It is said that at the time that the orders had been made, the children were each younger, life was simpler, it was not very complicated for the children and the father to cope with the Mondays after school and that has become more complicated in recent times.  The thrust of that is that there have been changes in the children’s circumstances which have really changed what is in the children’s best interests.  It is said that the children are now older and that they have become far more vocal about the parenting arrangements that they wish to occur.

13. The father has a view, and it was suggested that this is also a view held by the children, that in circumstances where their sibling, C, who is the middle child some months ago left his father’s home following an argument, walked around the block to his mother’s home and has remained there since, that if it is good enough for C, it is good enough for them.  It is said that their voices ought to be heard and at least to some extent, they ought to be able to determine the residence arrangements for themselves.

14. It was also submitted that the Court’s single expert, Dr A, has recommended that the children spend more time with their father and, in particular, that B has a strong view and this is supported by Dr A that he would like to spend these Monday evenings in question at his father’s home.  The position of course is that the children, that is B and D, spend Tuesday evenings at their father’s home.  The thrust of what is said is that B would like to have the Monday evening there as well.

15. It was said that there had been some difficulties with Monday afternoon times because the father and children have difficulty travelling between the parents’ homes in peak hour traffic.  In my view, that might possibly be relevant to the latter of the three alleged breaches but it could not be relevant to the former two because until recently the parents’ residences were within a block or two of one another.

16. It is said that having to return the children on Monday afternoons does not permit the father to have quality time with the children because he is very much occupied in driving them to and from their various commitments.  Whereas previously, there was one car trip involved, it has become more complicated now because the father has to spend more driving time with the children now than he did when these orders were first made.

17. It is said that the children asked their father to let them stay on the relevant occasions and that they have become far more persistent about this recently. 

18. Another part of the father’s case is that the children have asked their mother permission to stay on Monday evenings and that the mother has declined permission to do so.  In fact, this question about Monday evenings has been the subject of a number of applications to this Court and the specific application was refused by Ryan J.

19. In any event there is currently an application before the Court in which the children’s father is seeking to have the children spend time with him overnight on Monday and that application has been listed for hearing in December. 

20. Turning to the first alleged breach which was 18 August 2014, the father’s evidence is that he collected D from school that day and he took her to his home which was then at Suburb E.  The father said that at approximately 4.55 pm he left home to collect B from L Oval.  The father said that he, his partner Ms G, B and D sat down for dinner at approximately 6.00 pm and he said both children then asked could they stay the night.  At approximately 7.10 pm the father sent an SMS text message to the mother to inform her that the children had asked to stay with him that night and that he would be accommodating their wishes and the mother sent a text message in reply asking the father to return the children.  That request by the mother was not met with the father taking the children back to the mother’s home.

21. I shall refer to the brief details of the other occasions and come back to the general submissions. 

22. On 1 September 2014, the father collected D from school, again at approximately 3.15 pm.  Again they drove to his Suburb E home.  The father was starting to pack up for a move of residence by him and his partner to Suburb K as distinct from Suburb E.  On 1 September 2014 they were packing up to move.  D made herself a cubby house out of cardboard boxes.  As with the earlier occasion, at approximately 4.55 pm the father left the home to collect B from L Oval.

23. The father said that at approximately 6.30 pm the children had showers and put on their pyjamas.  When the father went upstairs he saw that the children had prepared themselves to stay the night.  He then asked B, “Do you want to stay the night?” and B said he did and that he always wanted to stay on Mondays.  The father said that he then asked D if that was what she wanted to do and that she said, “Yes, please”.  When the children were not returned to their mother’s home, and there were no messages to her as I understand it on this occasion from the father, the mother was concerned to the point that she took it upon herself to come around the block to the father’s home where the children were staying.

24. She says she knocked on the front window.  The father said that she banged on the window.  And then she knocked or banged on the front door.  The mother said that she wanted to speak to the children.  The father said that she was shouting about that.  He was concerned about the state that she was in.  The father said, “No” and he shut the door.  The father said that the mother was yelling out, “D”. 

25. What then happened would not have helped the situation.  The father said that the lights were turned out.  Initially he said that somebody else turned out the lights but then he conceded that, in fact, he had also turned out some of the lights.

26. Then the father, his partner and the children went down to the back of the house.  The father said that he made the judgment that it would not have been in the children’s interests for there to be further confrontation with their mother.  It was an upsetting occasion.  He thought the best approach to it was to try and remove the children from that situation and take them down to the back of the home.  So the lights were turned out.  The children, the father, his partner and presumably her mother all then moved down to the back of the home leaving an extremely worried mother of the children outside the home. 

27. No doubt the mother would have been extremely frustrated and probably quite worried that firstly she had not received the children in accordance with the Court orders and secondly, that when she asked to speak to the children and when she made it very clear that she wanted to speak with D, there was no assistance provided to her in that regard.

28. The father appears to have had a lack of insight into what the mother must have been going through at the time.  He made it clear, at least on my interpretation of his evidence, that the mother was to blame and despite learned counsel giving him an opportunity to reflect on the manner in which he dealt with the situation himself, he could not see that he had any responsibility at all for what had occurred and that it was all the fault of the mother who was behaving, in what the father appears to have regarded as a somewhat hysterical way.  In any event, the upshot of all of that was that the children did not go to their mother on that occasion, neither in accordance with the Court orders, nor at all.

29. The next occasion was 8 September 2014.  On this occasion, again the father collected D from school at approximately 3.15 pm.  Instead of collecting B from L Oval he collected B from school.  They drove to his Suburb K home. There was a need that night for somebody in the father’s residence to deliver Ms M, whom I understand is the mother of the father’s partner, to the airport.  The father said that the children were sad about Ms M’s leaving and that they asked whether they could go to the airport then stay at the Suburb K home, to which the father agreed.

30. They left for the airport at approximately 5.30 pm.  They had dinner near the airport and then they left the airport, apparently having dropped off Ms M there at approximately 7.45 pm.  As with the earlier occasion, there was no notice given to the mother that the children were not going to be returned in accordance with the orders. It seems pretty clear that at the time when the father left with the children for the airport, that is approximately 5.30pm, he had made a decision that the children either would be staying with him that evening or he would not be delivering the children to their mother at the time required by the Court orders.  This is because he would not have been able to deliver them to their mother at Suburb E on time, having left for the airport at approximately 5.30 pm.

31. It is said by learned counsel for the father that the meaning of “reasonable excuse” is as set out in s 70NAE of the Family Law Act 1975 (Cth) (“the Act”). It is said that the circumstances in which a person may be taken to have had, for relevant purposes a reasonable excuse for contravening an order under the Act affecting children, include but are not limited to circumstances set out in ss (2), (4), (5), (6), and (7). It is said that the word “include” means that this is not an exhaustive list and that there may be other circumstances that can constitute a reasonable excuse for contravening an order.

32. Reference was made to the Full Court decision of Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell (2000) FLC 93-053. Counsel said this was a case in which the respondents argued that they should be excused for their breach on the basis of their reasonable belief that certain injunctions were invalid. Counsel said that their belief was found not to be reasonable because the evidence pointed to them having no real belief that their actions were justified. Counsel submitted that the point she makes from this case is that it confirms that the subjective belief of a party accused of the contravention is relevant provided that it is reasonable to have such a belief.

33. It was submitted that the father had a genuine belief that D and B would like to stay with him on the Monday nights, therefore it cannot be said that this belief is unreasonable particularly in light of Dr A’s comments that the two children did express that they would like to see their father more.

34. It was also submitted that the father had a genuine belief, based on the fact that C has determined not to spend time with his father and that he could rely on the wishes of the children about whether or not they wanted to return to their mother. 

35. It was further submitted that the father also had a genuine belief that it was in the best interests of the children to stay at his home on a Monday evening, not just based on their views.  It was said to be based also on the difficulty of juggling the various commitments on the Monday afternoon and the effect that travelling was having on the father’s time with the children which goes to the earlier submission about quality of time. 

36. Then learned counsel referred to a very old decision of this Court in its early days of Gaunt and Gaunt (1978) FLC 90-468 at page 77,398. Counsel referred to the following passage of the judgment:

    A party’s subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “unreasonable cause”.  Evidence of changed circumstances or of matters not considered when the order was made might be.

37. Counsel then referred to a first instance decision of Connor J in Cavanough and Cavanough (1980) FLC 90-851 dealing with an alleged breach of an access order. His Honour accepted that the father of three children had an honest and reasonable belief that the children did not wish to be with their mother on the terms stated in the order and that it was not in their interests to be subjected to embarrassment from their mother during access. His Honour went on to find that the father had just cause or excuse for not complying with the order.

1. In my view, that case can clearly be distinguished from the present case.  In Cavanough, the children were 16, 15 and 12½ years of age.  And his Honour was satisfied that the evidence of various witnesses supported a finding that the children were embarrassed by their mother’s conduct. 

2. This is not a case where it was important, from a health point of view, or other general welfare point of view, that the children be withheld from returning to their mother’s care.  The highest it rises for the father is the submission that he held a genuine belief that it was in the children’s interest to withhold them. 

3. I do not accept the father’s subjective belief that it was in the children’s interests for them to spend the Monday evenings in his care, rather than in their mother’s care as required by the orders of this Court, as constituting a reasonable excuse.

4. Shortly after the first alleged breach, the mother instructed her solicitors to send a letter to the solicitors for the father, which made it very clear to the father that the mother was not going to countenance any departures from the obligations on the father to make the children available on the Monday evenings, and made it very clear that she expected the orders to be complied with.

5. The requirements of the law in respect of persons in the position of each of the parents, who are the recipients of obligations and rights under court orders, are clear.  The person who has obligations under the order has to take all reasonable steps to bring about what is required by the order.  In this regard, what the Full Court said in Stevenson and Hughes (1993) FLC 92-363 is included in an endeavour to assist the parents to understand their obligations. At pages 79,815 and 79,816 Fogarty J endorsed the following passages from the judgment of the trial judge (Malcher J) in that case:

   Her Honour said this:

   There is also implicit in every order for access an obligation imposed upon the custodian to take reasonable steps to do what they can to ensure that the stipulated contact occurs.

   Then there is the following passage which, although lengthy, is worthy of being repeated and it is as follows:

   I have already made reference to the implied obligation of the custodian to take reasonable steps to ensure that the access stipulated in an order takes place. Words and actions have meaning in context and affect. It is not a sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter. 

   Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.

   Finally, her Honour, in relating those observations to the particular facts of this case said this:

   … the respondent has adopted on the occasions when those expressions have been used a passively obstructive stance inconsistent with her obligations under the order.' 

6. And then Fogarty J said as follows:

   It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance.

7. In the present case, it is of course not the “custodian” who is at fault but rather the father.  But these observations remain relevant to point out what the Court’s expectations of the parties are concerning compliance with court orders.

8. Learned counsel for the mother brought out, quite effectively, that the father had done little, if anything, to encourage the children to return to their mother’s care, in accordance with the orders.  The best he could offer by way of encouragement was a suggestion that they would know what their mother thought if they were not to return home.  Effective parenting requires a lot more than simply leaving it to children to comply with court orders. 

9. It is not a matter for the father or the children to choose whether to comply with court orders.  The orders were put in place to bring what I would describe as order, predictability and regularity to the parenting arrangements for these children. 

10. In this case, in my view, this ingredient is all the more fundamental to the best interests of these children.  The parents have been separated for more than four years. Much of the time subsequently has been characterised by litigation about parenting matters.  There has been a multiplicity of applications about various issues relating to the children. 

11. It is clear that the children did not go to their mother in accordance with the requirements of the orders of 16 July 2012, and, in my view, the father has not established a reasonable excuse in respect of any of the breaches.

12. Accordingly, I find that the father has breached order 2.2 of the orders of 16 July 2012 without reasonable excuse, the breaches having been on 18 August 2014, 1 September 2014 and 8 September 2014. 

13. Both parties agree that the matter ought to be stood over, to follow the interim proceedings on 2 December.  There is an application by the mother to suspend the orders for the children to spend Monday after school with their father.  These orders including the Monday afternoons were put in place, obviously, in the best interests of the children.  I note that Dr A recommends that the children should not go on the Mondays unless they would be returned, in accordance with the orders, to their mother’s residence by their father.  These matters must be dealt with in a way which enhances the best interests of the children.  I would be concerned to endeavour to keep the Monday afternoons going, although I take on board that there would be a powerful signal given to the father if the Court was simply to suspend time on the Monday afternoons.

14. If the Court cannot be confident that the father is going to comply with the order for Monday afternoons, then I cannot be satisfied that it would be in the children’s interests to continue this.  If the father was to give the Court an undertaking that, between now and 2 December, he would ensure compliance with all current court orders, then I would accept such an undertaking and keep the Mondays going.  I note the father hesitated to accept my olive branch, so I accept that there will be no undertaking.  Accordingly, I propose to suspend the orders for Monday afternoons.

15. I also accept Mr Batey’s submission that on the basis of the view that I have formed of the children’s father, it would be appropriate for me to recuse myself from hearing other applications between these parties, including the travel application and these other various applications.  I recuse myself from involvement in further proceedings, other than to complete the immediate contravention proceedings.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 20 October 2014.

Associate:     

Date:              20 March 2015