McLory & McLory

[2010] FamCA 305

FAMILY COURT OF AUSTRALIA

MCLORY & MCLORY [2010] FamCA 305

FAMILY LAW – CHILDREN – Contravention – The Mother withheld the child from spending time with the Father on two occasions – Whether the Mother can establish “reasonable excuse” within the meaning of s 70NAE(5) – Mother argues the father engaged in sexual misconduct – Mother argues the contraventions were necessary for the child’s health and safety – Where Judge declines to make credit findings before the trial – Reasonable excuse not made out – Contravention of orders established

Family Law Act 1975 (Cth) ss 70NEB, 65L, 62G, 70NAE, Div 13A

Ciabo v Ciabo (1996) FLC 92-651
Goode v Goode (2006) FLC 93-286

APPLICANT: Mr McLory

RESPONDENT: Ms McLory

INDEPENDENT CHILDREN’S LAWYER: Mr M.J. Emerson

FILE NUMBER: BRC 8082 of 2008

DATE DELIVERED: 23 March 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 23 March 2010

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms R. Lyons of Counsel

SOLICITOR FOR THE RESPONDENT: Andrew Burrows and Associates

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Mr M.J. Emerson of Emerson Family Law

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

1. Pursuant to section 70 NEB(1)(b) of the Family Law Act 1975 (Cth), paragraph 8(b) of the orders made by the Honourable Justice Murphy on 27 July 2009 be varied to include, in addition, time on Thursdays between the hours of 9.30am until 1.30pm.

   AND IT IS NOTED THAT this variation is made solely for the reason that the orders applicable between today and the trial will accommodate only some 12 weeks of that additional day in the alternate week which is considered appropriate compensatory time.

AND IT IS ORDERED THAT

1. The costs of today are reserved to the final hearing of the matter.

2. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8082 of 2008

MR MCLORY

Applicant

And

MS MCLORY

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By an application filed on 15 December 2009 the father seeks orders pursuant to contraventions, said by him to have occurred on 12 December 2009 and 15 December 2009.  Those breaches are alleged in respect of an order made by me on 27 July 2009 that provided at paragraphs (7) and (8) that:

   7.Paragraphs 5, 6 and 12 of orders made by Federal Magistrate Coates on 9 September 2008 are discharged.

   8.In lieu thereof, [the child] born […] February 2008 shall spend time with the father:

   a.from 9.30am until 1.30pm on Tuesday, Thursday and Saturday of each alternate week, commencing Tuesday 28 July 2009;

   b.from 9.30am until 1.30pm on Tuesday and Saturday of each alternate week, commencing Tuesday 4 August 2009.

2. The orders also provided for changeovers to occur at the H Police Station.

3. Those orders have a context.  The parties have been litigating about the child for virtually the whole of her life.  She is barely two.  On 9 September 2008, when the child was seven months old, FM Coates made orders, among others, that the child spend time with the father each Tuesday, Thursday, and Saturday from 9 am until 6.30 pm, and each alternate Sunday in addition. 

4. Immediately subsequent to those orders, the father filed, on 26 September 2008, a contravention application that was heard by FM Jarrett on 10 November 2008. FM Jarrett found the contravention established and ordered, in effect, that the parties participate in a post-separation parenting orders program, presumably pursuant to s 70NEB of the Act.

5. Some four months later the father filed a second contravention application on 14 March 2009 which necessitated an appearance before the court on 16 March.  Subsequent to that, the matter came before me, but immediately prior to it doing so, pursuant to this Court's Child Responsive Program the parties (and to a limited extent the child who, it might be noted, was then about 18 months old), saw a family consultant, Ms T.  Ms T prepared a Children and Parents' Issues Assessment dated 22 July 2009. 

6. In that assessment Ms T makes it clear that the mother was asking for supervised time with the father.  The issue of the father's time being supervised was, then, live, as between these parties, from July 2009 at the latest.  Ms T records that the father was seeking that the child spend increasing, graduated time with the child unsupervised:

   …with the aim of compliance with Federal Magistrate Jarrett's order of 10 November 2008.  When [the child] attends school he would like her to live with him during the week and with her mother each weekend.

7. In light of events occurring subsequently it is important to note that Ms T raised as "key issues" in her report concerns by the mother:

   …in regard to her belief that [the child] has been sexually abused by her father, his alleged physical abuse of [the mother] and the subsequent implication of such upon [the father's] capacity to ensure that [the child] is safe and protected from harm.

8. It is also of some significance to note that, in that report, Ms T flagged as another "key issue":

   [the mother's] capacity to accept the possibility that her concerns may not be substantiated and that there may not be [found to be] any unacceptable risk to [the child] within her father's care. 

9. Ms T goes on to record as other “key issues”:

   [the father's] concerns that [the mother] uses her breastfeeding of [the child] as a barrier to his daughter spending meaningful time with him

   and

   ..the absence of trust and the chronically hostile relationship that exists between the parents and the impact of this upon [the child].

10. I pause to also record that, in the lead-up to orders being made by the Federal Magistrates' Court in September 2008, a report had been prepared by Mr P, a single expert social-worker, presumably consequent upon orders made by FM Coates on 9 September 2008.  The report has, then, been available to the parties for more than 12 months.  In that report Mr P broadly recommends increasing amounts of time between the child and the father, and, in particular, provides the opinion:

    The more regular the visits, the less confusing for a child of this age and the more able the child is to preserve and enhance emotional attachment.

11. Mr P goes on to say:

    I would also recommend that consideration be given to the father now having a Saturday night on a fortnightly basis, ie a fortnightly weekend running from 9 am on Saturday to 6.30 pm on a Sunday.

12. Insofar as the father is concerned, Mr P said:

    On the basis of the father's presentation to me it seems to me that he is a competent person so far as attending to [the child’s] needs are concerned

    and specifically opines:

    It does not seem to me that supervised visits in a contact centre are necessary at this point in time.  If the father will give certain guarantees concerning marijuana and absconding then it seems to me that this would be sufficient to safeguard this little girl's welfare.

13. Some eight months or so after that report was prepared by Mr P, Ms T said in her Children's and Parents' Issues Assessment - and again, in my view, the observations are important to the issue necessary to be determined by me:

    Whilst not overlooking the allegations raised in this matter [which, the context indicates, refers to the allegations of sexual misconduct] my observations of [the child] with her father indicated that she is familiar and comfortable with him and no anxiety whatsoever was discerned.  She was confident in her interactions with [the father] and responsive to his overtures.  [The father] was responsive to [the child’s] needs during the one-hour observation period and he was noted to allow [the child] to set the pace.

14. Ms T was at pains to point out that she considered it in the child’s best interests that she be given an opportunity to develop an attachment with her father.  She considered that it was "unrealistic to expect" that to have occurred given the "difficulties that have historically occurred with [the child] spending time with her father".  As I have earlier pointed out, those difficulties sounded in two earlier applications for contravention.

15. Ms T provided the opinion that:

    In my view the salient issue within this dispute is [the child’s] need to master the appropriate developmental task of establishing and developing secure attachments with each of her parents.  In general terms it is well-established that children who thrive best post-separation are those who continue to experience an ongoing relationship with each of their parents.  However, this need also has to be balanced by a child's right to be cared for and protected from harm.

16. Ms T goes on to say:

    If [the child] is not able to have the opportunity to develop an attachment with her father and maintain an ongoing relationship with him her emotional development will be compromised.  If such opportunities are to occur it will require cooperation between the parents which is clearly not currently happening.  I am not confident that [the mother] would facilitate arrangements to ensure that [the child] spends regular and frequent time with her father without a court order.  It is my suggestion that it would be beneficial for [the child] to experience frequent and relatively short incremental periods of time with her father and this should be supervised at least in the short term.  [The mother] advises that she currently breastfeeds [the child] seven times a day and I noted on the day that she breastfed [the child] prior to and after the observation period.

17. The context, then, in which orders were made by me on 27 July will be relatively clear.  The truncated proceedings within which orders are made by this court either during the course of interim applications or during the course of “first days” or “continuation days” are well-known and have frequently been commented upon, for example, in decisions of the Full Court in Ciabo v Ciabo (1996) FLC 92-651 and Goode & Goode (2006) FLC 93-286. That context can be seen to have attended the orders that were made by the court on 27 July 2009.

18. Other orders made by the court on that day were orders made pursuant to s 65L of the Act and an order for a report pursuant to s 62G.  The report contemplated by those orders pursuant to s 62G was subsequently authored by Ms O and dated 30 November 2009 annexed to an affidavit filed by her on 1 December 2009.  Mr Emerson indicates that the affidavit was sent out shortly thereafter and the mother indicated that she had read it not long after it was sent to her.

19. The contraventions alleged against the father occurred, then, a very short time after the report was forwarded to the mother and read by her. 

20. The contraventions as pleaded are admitted by the mother.  She seeks to establish reasonable excuse within the meaning of the Act; relevantly, as defined in s 70NAE of the Act and specifically in s 70NAE(5). 

21. Relevantly, the section provides that:

    Meaning of reasonable excuse for contravening an order

    …

    (5)A person (the respondent ) 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 time together as provided for in the order if:

    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).

22. The mother's case, in short compass, is that, having read what Ms O had to say in the family report received immediately prior to the first of the two occasions of contravention, withholding time in accordance with the order (or, alternatively, permitting time that was not supervised as Ms O recommends) was necessary to protect the child’s health or safety within the meaning of s 70NAE(5). 

23. The mother says that it was the combination of that report together with the assertions by her of sexualised behaviour exhibited by the child that brought about her actions.  It is said on her behalf that, when those matters are taken together, in circumstances where the mother asserts that she believes that the child is at risk of sexual harm at the hands of the father (and it might be noted where allegations of physical harm at the hands of the father are also made) that the mother believed on reasonable grounds that it was necessary to protect the child from the father within the meaning of that section.

24. In that respect an affidavit of the mother was filed by leave consequent upon the admission by her of the contraventions. In essence, the mother deposes to the matters which found the assertion to which I have just referred.

25. A number of matters referred to in the history earlier set out should be emphasised. First, allegations of sexual misconduct by the father toward the child extend back to about March or April 2009. The mother said in the witness-box under cross-examination by the father (who has prepared his own material and represented himself at all stages during the course of these proceedings), that, subsequent to early 2009, "a cluster of occurrences" (being displays of sexualised behaviour) which occurred on 9, 10, 25, and 26 December.  Accordingly, the mother would posit "sexualised behaviours" (as she describes it) on days immediately preceding the occasions the subject of the contravention application.

26. It is next necessary to observe that two earlier contravention applications had been brought by the father.  Next, Ms T flags as an issue a lack of confidence by her that the mother would facilitate arrangements to ensure that the child spends regular time with her father. 

27. Next, while the mother says that she was entitled to rely upon the recommendations made by Ms O, no such consideration attended the recommendations of an earlier expert, Mr P (which, plainly, she didn’t agree with). So, too Mr P, and Ms T have made recommendations in the course of these proceedings that the mother, through practitioners engaged on her behalf, has contended should not be followed.

28. If the actions of the mother are to amount to a reasonable excuse within the meaning of the Act it seems to me that the belief on reasonable grounds must be founded, putting it at its highest, on the basis that the mother, as a loving mother, is entitled to act on recommendations by a report-writer in circumstances where the report-writer has, by reason of the report being prepared pursuant to a specific section of the Act and by reason of specific earlier orders of the court, a certain "imprimatur". 

29. Of course, the true position is that report-writers do not decide cases, the court does.  The truth is that recommendations are but recommendations. Moreover, what is as important in determining the outcome of the proceedings on the recommendations, are the opinions, observations, and data otherwise properly provided by a report-writer. 

30. Assuming that, in the course of these truncated proceedings, I can't make, or am not prepared to make, credit findings directly relevant to the assertions and counter-assertions by each of the parties, does an acceptance of the mother's case put at its highest constitute reasonable excuse in light of all of the facts and circumstances known to the court at this time. 

31. In my view, it does not do so.   

32. It has been necessary for the father to bring contravention applications in the past.  The mother is represented and well aware of earlier reports that flag as issues the very sorts of matters now said by her to be relied upon as a reasonable excuse for acting contrary to a court order. 

33. In particular, the mother flagged to Ms T for the purposes of the Children and Parents' Issues Assessment report which, as the report makes clear, was going to be used for the first day of hearing before a judge of this court that the mother had made it quite clear that she sought supervised time. Supervised time was contended for on behalf of the mother. The court rejected the application for supervised time, it having as a foundation in the sorts of allegations, assertions, and concerns which the mother now relies upon.

34. When those background matters are taken into account and all of the matters raised in the earlier reports of Mr P and Ms T are also taken into account, it seems to me that the mother does not establish a reasonable excuse on the basis that she contends. 

35. I said during the course of argument that I had, in any event, some concerns about Ms O’s report on a prima facie basis.  I emphasise those matters are matters left to a trial, as indeed are the opinions expressed by Dr V.  It is of some significance to note that the report of Ms O was received by the mother prior to the contraventions taking place, but Dr V’s report was not; her sworn evidence is – surprising though it seems to me – that although Dr V’s report was filed on 22 December 2009 and it is now mid-March 2010, the mother has not read it.

36. The concerns which I expressed during the course of argument are concerns emanating from an assertion by Ms O, contained at paragraph 41 of her report. There, she says that she does not purport to make a diagnosis of narcissistic personality disorder but, what is plain from the succeeding paragraph of the report, is that her opinion about the father's narcissism is instrumental in forming the recommendations ultimately made by her.

37. It is a matter of considerable interest to me, given the understandable primacy of the assertions made by the mother with respect to alleged improper sexual behaviour, that not a word of that topic is mentioned by Ms O in her report. 

38. Of further interest is the fact that, whilst the father's narcissism is referred to in considerable detail in Ms O’s report and, indeed, plainly forms the basis of the recommendations which she makes, no such references are made in any substantive way to the mother.  That is interesting in light of the opinion of Dr V (provided, I note again, subsequent to Ms O’s report) that:

    The father emerges as having significant narcissistic traits and perhaps obsessional traits.  The impression one gets is of a person with a relatively poorly developed sense of identity and self.  I note difficulties in sustaining long-term relationships and the history of drug abuse fits in with the personality configuration.  I note, however, that he has some capacity for self-reflection.

    The mother's presentation and history is also suggestive of personality vulnerability.  What emerges particularly strongly is the obsessionality with a need for control, but as with the father she has narcissistic traits and tends to see the situation entirely from her own perspective.  She is entirely negative about her ex-husband and returns to this theme several times in the interview.

39. Dr V goes on to say:

    Thus both parties share many characteristics in common.  I note that their relationship developed in an impulsive manner suggestive of a propensity for narcissistic idealisation in both.  Unsurprisingly, it has been followed by devaluation.

40. In summary, as it seems to me, the foundation urged upon the court for a finding of reasonable excuse is not made out. I accordingly find that the contraventions contained in the application for contravention filed by the father on 15 December 2009 are each established.

1. If a contravention is established it is necessary for the court to have regard to the specific provisions of the legislation in order to ascertain the regime governing the imposition of what might broadly be described as penalty. 

2. In this particular case the provisions of s 70NAE(3) of the Act apply because, plainly, on the facts before me the court has previously made an order with respect to contravention;  namely the order made by Jarrett FM on 10 November 2008 in respect of the application for contravention brought by the father on 26 September 2008. 

3. By reason of that earlier order it is necessary for the court to be satisfied within the meaning of s 70NAE(3)(b) of the Act that it is appropriate, or rather that it is more appropriate for this court to deal with the contravention by reference to Subdivision E of the Act rather than the Subdivision of the Act which governs contraventions in circumstances where earlier orders are made. 

4. Although I have found that the mother's asserted reliance upon the report of Ms O is insufficient to found a reasonable excuse within the meaning of the Act, it seems to me that her asserted reliance on that report is a relevant matter in respect of the "penalty" that might be applied when a contravention is established. 

5. In those circumstances, together with the circumstances earlier described (and, in particular, an assertion by the mother either that some form of sexually inappropriate behaviour has occurred, or perhaps an assertion by her that she has an unassailable belief that it has occurred and where either or both of those assertions have not yet been determined) it seems to me appropriate that I should deal with the matter pursuant to subdivision E of Division 13A of the Act.

6. It also fell from Ms Lyons, counsel for the mother, during the course of argument that, in circumstances where no contravention of the order was established by reason of the assertion of reasonable excuse having been established, that a variation of the order should be made.  Section 70NBA(1) of the Act provides:

   (1)  A court having jurisdiction under this Act may make an order varying a primary order if:

   (a)  proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and

   (b)  it is alleged in those proceedings that a person committed a contravention of the primary order and either:

   (i)  the court does not find that the person committed a contravention of the primary order; or

   (ii)the court finds that the person committed a contravention of the primary order.

7. In what might, perhaps, be seen to be supplementary to the power just described, s 70NAB of the Act which prescribes the general powers of the court in dealing with contraventions without reasonable excuse pursuant to Subdivision E of Division 13A, provides that the court has the power to adjourn proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under the Act that discharges, varies, or suspends the primary order or revive some or all of an earlier parenting order.

8. I am not persuaded that I should vary the terms of the order made by me on 27 July 2009.  I call in aide again the facts and circumstances already detailed in these ex tempore reasons in respect of the matters already dealt with.  There are a number of issues that will be dealt with at a trial which is to occur in approximately 12 weeks time.  Those issues are important factually and are central to an ultimate determination of orders that might be in the child’s best interests.

9. The orders made on 27 July occurred in the context of two earlier reports by independent experts, Mr P and Ms T.  Subsequent to those orders there has been a report, which might, to one extent or another, be seen to conflict with earlier opinions prepared by Ms O and a report, perhaps seen as more consistent with those earlier opinions, by Dr V. 

10. In those circumstances it seems to me that the factors pertaining to an issue about variation of the order as s 70NBA or even s 70NEB might contemplate are best and more appropriately dealt with at a trial.

11. The reason for that is that the application for variation under either of those powers of the court has, as its primary guiding principle, the best interests of the child and those best interests will be the centrepoint of a trial at which all assertions and counter-assertions will be made, evaluated, and ultimately decided upon.

12. That being so, and given that I am not persuaded that I should vary the order in accordance with the powers provided for in the Act, an issue arises as to what "penalty" should flow in consequence of my finding that the contravention is made out. In his application the father seeks a bond (as to which see s 70NEB and s 70NEC) and also seeks what might conveniently be described as compensatory time or "make-up time".

13. The power to make the latter order can be found in s 70NEB(1)(b) which provides:

    If the current contravention is a contravention of a parenting order in relation to a child – make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention.

14. It is interesting, as it seems to me, that a power given to a court in order to remedy a party who is found to be the "victim" of a breach of an order might sound in time to a child. That seems to me, at least superficially, to be potentially antithetical to precisely the sorts of considerations which the legislation requires to be taken into account in making all parenting orders that affect children.

15. Whether or not that is so, it seems to me that any order for compensatory time should necessarily take account of the child’s best interests, even if such a decision must be made within the truncated confines of an application of this type. 

16. It also seems to me crucially important that a decision with respect to "compensatory time" consequent upon a finding of contravention should not take the place of, nor be seen to be in substitution for comprehensive findings about best interests that will occur at a trial at which the "time and live with" arrangements for a very young child will be determined.

17. In short, if an order for compensatory time is to be made, the court must be, in my view, convinced, and convinced significantly, that it ought be made ahead of a determination at a trial due to occur in about 12 weeks.  Alternatives are suggested in respect of “compensatory time” (or variation) that might embrace an overnight period of time between the child and her father.  I am not prepared to make that order. 

18. The reason for not making that order is similar to that earlier adumbrated; namely the potential for a number of expert opinions to be somewhat in conflict and the particularly strong opinions offered by the mother, but which opinions, in my view, need to be seen in the context of the opinions offered by Dr V and the earlier opinions of Ms T and Mr P.  The same applies, in my view, in applying the test of best interests to any compensatory time ordered in respect of the child. 

19. As against that it needs to be borne in mind that the orders contemplated significant amounts of short periods of time broadly in accordance with the recommendations of Ms T and the purpose of those periods of time was to engender in the child, and operate for the benefit of the child (as distinct from the father) in developing the sort of attachment that Ms T refers to in her short report.

20. It is true that as a result of the actions of the mother in withholding the child from time in early December the father was, in effect, confronted by Hobson's choice.  He proposed that the child spend time with him at the G Contact Centre on the basis that, as it seems plain, if supervised time was not offered by him he would likely have no time at all until this matter was determined either at a trial or in proceedings of the type just dealt with.

21. Accordingly, time, a significant purpose of which was precisely to develop the sort of attachment that Ms T speaks of in the report to which reference has earlier been made, did not occur.  Ms T considered it important that it does occur;  I agree.  The fact that the time has been curtailed not only in quantity and frequency but also within a contact centre, impacts upon that.

22. I consider that an order for compensatory time should be made, but only within the confines of providing for the child precisely the sort of opportunity for attachment referred to by Ms T, as I have earlier referred to.  I am not prepared to, in effect, substitute by way of order during proceedings of this type an order that, in my view, ought properly only be made after a full determination of the facts and issues at a trial. 

23. Balancing those considerations and putting the chld’s best interests to the forefront, as distinct from the father's, or indeed the mother's, it seems to me appropriate that paragraph (8) of the orders made by me on 27 July 2009 accommodate time on Thursdays between the same hours. I make it plain that the order that will be made will be an order incorporating that variation by way of compensatory time pursuant to s 70NEB(1)(b) and not as a variation of the orders made by me on 27 July 2009.

24. I will express it in terms of it being a variation solely because the orders applicable between now and the trial will accommodate only some 12 weeks, and 12 weeks of that additional day in, as it were, the alternate week, seems to me to be appropriate compensatory time in all of the circumstances of this case.  I so order. 

25. I will direct that a copy of my reasons for judgment when edited be provided to each of the parties.

26. I will reserve any question of costs to the trial. 

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  21 April 2010