MDA and MRY - [2002] FMCAfam 373

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MDA & MRY

[2002] FMCAfam 373

FAMILY LAW — Contravention of contact orders — wife fails to make children available for holiday contact — wife terminates telephone contact — breach of orders admitted, but reasonable excuse alleged — finding of no reasonable excuse.

Applicant:

MDA

Respondent:

MRY

File No:

(P)MLM 8425 of 2002

Delivered on:

30 October 2002

Delivered at:

Melbourne

Hearing Date:

30 October 2002

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

The applicant appeared on his own behalf

Solicitors for the Applicant:

Counsel for the Respondent:

The respondent appeared on her own behalf (via video link)

Solicitors for the Respondent:

ORDERS

On the contravention application of the husband filed 10 October 2002 and upon hearing the Applicant Husband in person and the Respondent Wife in person (by way of video link up), and upon:

a)the Court being satisfied that the wife has committed contraventions of an Order under the Family Law Act affecting children (being contraventions of paragraphs 4(a) and 4(i) of the Orders made in the Federal Magistrates Court of Australia at Adelaide on 2 November 2001);
b)the wife not having proved that she had a reasonable excuse for the contraventions referred to in (a) above;
c)no Court having jurisdiction under the Family Law Act having previously determined that the wife has, without reasonable excuse, contravened the Order referred to in (a) above; and
d)the Court otherwise being satisfied that Subdivision B of Part VII of the Family Law Act applies to the contraventions referred to in (a) above,

IT IS ORDERED THAT:

Pursuant to s 70NG(1) of the Family Law Act 1975:
(a)the wife do attend a post-separation parenting program at an organisation as nominated by the Federal Magistrates Court of Australia;
(b)the wife do attend before the provider for an initial assessment of suitability for a post-separation parenting program; and
(c)if assessed by the provider as being suitable to attend a program or part of a program, and if the provider nominates a particular program for the wife to attend, then the wife do attend and complete that program or that part of the program.
Notwithstanding any previous orders of the Court, the husband do have make-up contact with the children F and G from
9.00 a.m. on Saturday 2 November 2002 to 9.00 a.m. on Sunday 10 November 2002, and if the wife fails or refuses to collect the said children at 9.00 a.m. on 10 November 2002, then the said children do remain with the husband until such time as they are collected by the wife.
Notwithstanding any previous orders of the Court, the husband do have make-up telephone contact with the said children between 6.30 p.m. and 7.00 p.m. (South Australian time) on Wednesday 30 October 2002 and Thursday 31 October 2002.
A Recovery Order be prepared and do remain on the Court file, and, if issued, do authorise/direct the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)to find and recover the said children and to deliver the said children to the husband; and
(b)to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.
The Recovery Order referred to in paragraph 4 above be issued — without further notice to the wife — in the event of the wife failing or refusing to cause the said children or either of them to be delivered up to the husband at 9.00 a.m. on 2 November 2002.
In the event of the Recovery Order referred to in paragraph 4 above being issued pursuant to paragraph 5 above, then the husband do sign all such documents and do all such acts and things as shall be necessary to cause the within proceedings to be listed for a telephone mention before Federal Magistrate Walters (or before another Federal Magistrate in the event of his Honour’s unavailability) — such telephone mention to occur not later than 72 hours after the delivery of the said children to the husband.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

(P)MLM 8425 of 2002

MDA

Applicant

And

MRY

Respondent

REASONS FOR JUDGMENT

(EX TEMPORE)

Having regard to the fact that the proceedings before me are being heard on an urgent basis, and by way of video-link between Melbourne and Adelaide, I propose to provide short form reasons only for the conclusions that I shall reach.
I have read all the material placed before the court by each of the parties. The application currently before the court is the husband's form 49 contravention application filed on 1 October 2002. In support of that application the husband filed an affidavit which was sworn on 1 October 2002. Attached to the affidavit is certain correspondence between the parties, and with Relationships Australia. The wife has also sworn an affidavit in the proceedings. Her affidavit was sworn on 21 October 2002. Apart from the affidavit material to which I have made reference, and some correspondence that was tendered during the course of the proceedings, no other documents were relied upon by the parties. The parties were present in person and represented themselves during the course of the proceedings. Each gave evidence orally and was cross‑examined by the other.
The provisions of section 70NC of the Family Law Act are headed Meaning of “Contravened an Order”. Section 70NC insofar as it is relevant reads as follows:
A person is taken for the purposes of this division -
which is Division 13A of Part VII of the Family Law Act -
to have contravened an order under the Family Law Act affecting children if and only if, firstly, where the person is bound by the order, he or she has intentionally failed to comply with the order or secondly, made no reasonable attempt to comply with the order.
The law recognises that a person may have a reasonable excuse for contravening an order. A reasonable excuse for contravening an order is dealt with in the provisions of section 70NE of the Family Law Act.
The evidence before the court clearly reveals that the wife did indeed fail to comply with the relevant orders of the court, and that she intentionally failed to comply with them — that is, the order in relation to the September contact at least — but the response of the wife is to the effect that she had a reasonable excuse for failing to comply with the order.
Section 70NE(3) deals with reasonable excuse where the breach is of a contact order. It reads that the respondent is taken to have had a reasonable excuse for contravening a contact order in a way that resulted in a person and a child being deprived of contact they were supposed to have had if:
a)the respondent believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person (including the respondent or the child); and
b)the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a) above.
The standard of proof of reasonable excuse is set out in section 70NEA of the Family Law Act. That section reads that the standard of proof to be applied in determining, in proceedings under this Division, whether a person who contravened an order affecting children had a reasonable excuse for the contravention is proof on the balance of probabilities.
I bear the provisions of those sections firmly in mind as I turn to consider the matters in issue in these proceedings.
The husband sets out in his affidavit that he sought to collect the children for contact on 28 September 2002 — which was to be the commencement of his school holiday contact period. The documents attached to the husband's affidavit make it clear that there had been correspondence between the parties leading up to that date. In that correspondence the wife had made it perfectly clear that she had no intention of permitting contact to proceed unless certain requirements that she had set out were to be complied with.
In her letter of 9 September 2002, the wife said that the condition that she wished to impose in relation to contact was as follows:
What is needed is that you and I, with nobody else present, sit down together, face to face, to discuss some very serious issues with a view to resolving what can be done to prevent any recurrence.
The reference to "recurrence" is a reference to a matter raised in the first paragraph of that letter in which the wife wrote:
Following the recent contact the children had with you in the July school holidays, both children, but particularly F, have displayed some very disturbing behaviours. So disturbing that I feel compelled to take quite serious action in an attempt to protect them from again being exposed to whatever it was that occurred in Melbourne.
It was clear, therefore, that as at 9 September the wife was demanding that the husband sit down with her “face to face without anybody else present” to discuss whatever issues had apparently arisen. There was no explanation in that letter as to what the “disturbing behaviours” were.
By letter of 16 September 2002 the husband wrote back to the wife, pointing out his lack of understanding of what the reference to “disturbing behaviours” might be, and emphasising that contact must proceed as ordered by the court. In the second-last paragraph of that letter the husband wrote:
It would be advantageous for both of us to communicate in a safe environment. My experience in the past has not been pleasant with respect to your behaviour. I am open to hearing your concerns in the forum of mediation. This can be arranged to take place by phone through the courts or Relationships Australia. Please advise me if you would like to proceed.
In the final paragraph of that letter, the husband said that he wished to reassure the wife that “nothing had occurred in Melbourne” which would have put G or F at any risk.
By letter of 17 September 2002, the wife wrote back to the husband. She said during her evidence before me today that she had not "sniped" at the husband during the course of the proceedings. My view of the approach of each of these parties is that neither of them has hesitated to indicate that he/she does not agree with the views of the other party. In that regard (and in relation to “sniping”), the second paragraph of the wife's letter of 17 September 2002 reads:
Considering the gravity of the issue at hand, it is saddening that you are still unable to address a problem without stooping to lies, bitter and unfounded claims, and inaccurate red herrings. For example, what parent or caregiver, regardless of degree of competence and love, could possibly claim to provide a “risk-free” and “non-risk” environment? I shall go no further here —the vast majority of your letter simply does not deserve a response and as already written, it is a shame you did not use the letter more effectively to work towards solving that which is a very real problem.
In my view, that paragraph is a perfect example of the wife's attitude to the husband. I might add that, on my reading of the husband's evidence, and on my observations of his demeanour in court, his approach to the wife is absolutely no different.
In her letter of 17 September 2002, the wife dealt with the proposal regarding telephone mediation. She wrote in the middle of the letter:
As already stated in my previous letter, I am not prepared to discuss this over the phone. I am happy, as you have suggested, for an independent mediator to be involved and to this end I inquired with Relationships Australia today. Unfortunately the person who could outline the process was not immediately available. As it is now after 5 pm I will not hear from her until tomorrow.
The wife then put certain proposals, in these terms:
Given the circumstances, it is only appropriate that this discussion occurs in person. I had been entertaining the possibility of driving to a halfway point between Adelaide and Melbourne to meet you. However, if an independent third party is to be involved, and unless there is an independent mediator resident in, say, Nhill, then one of us is going to have to travel to the other city. As you are the equivalent to approximately 10 months behind in maintenance payments, according to your employment declaration to the Child Support Agency have minimal work commitments, and I have the children to consider, I'm sure you will agree that the most appropriate thing is that you come to Adelaide.
The letter concludes:
Please accept my word about how important this is and understand I only have the best interests of the children in mind. I have never previously threatened to deny contact, but if this is not resolved, you leave me without a choice.
Suffice it to say that in the subsequent correspondence attached to the letter it became clear that because of the attitude of these parties, one to the other, no mediation could be arranged. By the same token, the wife did not file an application with a view to suspending the contact orders. As the wife made perfectly clear, she had no intention of permitting the contact to proceed unless the husband complied with her demands insofar as the form of counselling was concerned.
During the course of the hearing I commented to the wife that it would have been reasonable for her to have at least attempted telephone mediation — because that may have led to some other disposition of the matter short of it being brought back before the court in this form. Having regard to the attitude of the parties to each other, and to the matters set out by the husband in his correspondence to the wife, it was, in my view inevitable — and the wife must have known that it was inevitable — that the husband would take the step that he did if contact was refused.
In her affidavit material, the wife sets out certain other matters with which I will deal in just a moment. I do wish to mention, however, one matter which, in my view, says a great deal about the attitude of these parties to each other. The husband complained in his affidavit that at the time that the children were sent to Melbourne for contact in July, they were only provided with the clothes in which they stood. The event is dealt with in paragraph 9 of the husband's affidavit, as follows:
I am concerned about (the wife’s) treatment of the children and suggested in my letter to her dated 16 September...that the alleged disturbing behaviours may have resulted from the fact that they were sent to have July contact with only the clothes they stood in, and indeed these were inadequate for mid-winter. F, in particular, was very embarrassed and distressed about this situation.
In my view, that says a great deal about the husband's approach. Clearly, the “disturbing behaviours” — whatever they were — could have had nothing to do with the fact that the children were sent to Melbourne with only the clothes in which they stood. It is not to the husband's credit that he raises such an unreasonable suggestion in his affidavit. Its purpose was clearly to convey to the court the fact that, in July, the children had been sent to Melbourne with only the clothes in which they stood.
The wife deals with this matter in her affidavit in paragraph 6. Remarkably, she concedes that the children were in fact sent for holiday access with simply the clothes in which they stood, but suggests that they were appropriately clothed when she put them on the flight booked by (the husband). She then went on to say, and I quote the last sentence of paragraph 6 of the wife’s affidavit:
If this was not appropriate for Melbourne's climate when they arrived, then it was his responsibility to ensure that they were adequately clothed whilst in his care, but he apparently fails to realise this.
I reiterate that neither of these parties has avoided an opportunity to snipe at the other where he/she feels that that may be appropriate. In relation to that holiday contact period and, to the extent that it may be relevant to these proceedings, I am of the opinion that the wife's behaviour in sending the children for an extended period of contact in the clothes that they were wearing (and with no additional luggage) was most unreasonable, and is indicative of her attitude in matters such as those that form the subject of the proceedings currently before me.
Insofar as the wife’s “reasonable excuse” is concerned, paragraph 10 of the wife’s affidavit contains the following:
I say that F, the older of the two children, experienced serious night terrors after returning from Melbourne and was able to express detailed descriptions of events that occurred whilst in his father's care.
During the course of the hearing, the wife indicated that she had a record of F’s alleged description of these night terrors. Exactly what form that record took I do not know because, although I invited the wife to read the description into evidence, she elected not to do so. That was probably because I had been critical of the fact that the wife had not provided any details of F’s alleged “detailed descriptions” in her affidavit — at a time when the husband could have been put on notice of what was being said. I am well aware that the wife was not obliged to swear and file an affidavit at all, but she elected to do so — and the fact of the matter is that the wife was given ample opportunity to expand upon her concerns during the course of oral evidence, but she did not do so. It was not until after she had been cross-examined by the husband that she disclosed the evidence of the notes that she had allegedly made. I told the wife — in my view properly — that if she was going to provide that very relevant information at the end of the hearing, and at a time when the husband could have no opportunity of investigating it, then that was a matter that I would have to take into account insofar as the weight to be given to the evidence was concerned.
But I want to say now that, having seen and heard the wife give her evidence in these proceedings, I have grave doubts regarding her credibility generally. Even if the wife had read out that material, I suspect that I may not have given it any weight whatsoever because, such is my view of the wife’s credibility that, unless her evidence is corroborated in some material particular by an independent witness, I am not prepared to accept it.
The wife continued in paragraph 10 of her affidavit:
The time taken to write to (the husband) was due to (a) me needing time to work out how to best deal with this, including discussing it with trusted advisers; (b) obtaining names of recognised child psychiatrists and psychologists; (c) ringing around to see firstly, who had the soonest available appointment combined with secondly, who would be available to testify in court, if necessary; (d) the inherent delay in actually getting an appointment with a respected professional; (e) having more than one session to enable the psychologist to more properly analyse F's problems; (f) me then writing a letter; and (g) having the psychologist peruse it. The last step alone took one week.
There then appears a comment which I put into the category of “sniping”:
(The husband) seems to forget that there were only 10 weeks in the school term and a significant problem does not raise its head and then get dealt with “overnight”.
In paragraph 12 of her affidavit, the wife says:
... the psychologist who assessed F was Dr Geoffrey Bollard who, I understand, is well respected in the relevant circles and very familiar with Family Court proceedings. On his analysis of the situation I believed I had no choice but to withhold contact until resolution of the causal factors had taken place.

One of the wife’s criteria in selecting an appropriate professional, and one of the reasons why the whole process took as long as it apparently did, is that (the wife) wished to find an expert that would be available to testify in court, if necessary. The fact of the matter is that no evidence was presented by the wife from Dr Bollard, or from any other independent person, regarding the alleged behaviour of the oldest child, and no evidence whatsoever has been presented to the court regarding the alleged behaviour, if there was any, of the younger child. I have already indicated that my view of the credibility of the wife is such that without such corroborating evidence, I am not prepared to accept her version of events. I take into account, as well, the careful construction of the last sentence of paragraph 12 of the wife’s affidavit (quoted in paragraph 29 above). The wife refers to Dr Bollard’s analysis (not her own), and her belief (not Dr Bollard’s advice or suggestion).
A further example of the attitude of the wife, if one is needed, is set out in paragraph 15 of her affidavit. This deals with the telephone contact (amongst other things). She says towards the end of paragraph 15:
Since I first wrote to the applicant on 9 September 2002 the children have not spoken to the applicant because when asked by me to be discreet with how he spoke to the children, to not upset them unduly, he refused, saying he wanted to tell them how much he missed them etc. I do not feel it is in the children's best interests to be subjected to adult emotional torture and so have declined to allow him to do so.
During the course of the evidence before me it became clear that what the husband wanted to say to the children was that he loved them and that he missed them. I accept his evidence in that regard. In my view, there was nothing unreasonable about the husband wishing to convey such comments to the children — who he had not been able to see for quite some time. In my view, it is extraordinary for the wife to describe that sort of desire on the part of the husband as amounting to "adult emotional torture".
I conclude that the wife has refused to allow contact (holiday and telephone) to proceed for reasons of her own. I do not know what those reasons are, but I do not accept that they have anything whatsoever to do with any alleged night terrors of one or other of the children. It may be that one of the reasons has something to do with the wife’s assertion that the husband is behind with his child support payments (although I make no finding in this regard).
At the end of the day, and having regard to the evidence before me, I am certainly not satisfied — on the balance of probabilities — that the wife had a reasonable excuse for failing to comply with the terms of the orders. I include within that finding not only the holiday contact in September 2002, but also all telephone contact since 9 September. I say nothing about the telephone contact prior to 9 September. My findings in this regard are limited to the telephone contact that was withheld after 9 September.
It follows, therefore, and in my view, that the wife has indeed contravened an order of this court without reasonable excuse.
Relevantly, I do not accept that the wife genuinely believed, on any grounds, that the deprivation of contact was necessary to protect the health or safety of anyone. Indeed, on the basis of the evidence before me (including, as it does, my observations of the wife), I conclude — on the balance of probabilities — that the wife did not believe that the deprivation of contact was necessary to protect anyone’s (and, in particular, F’s) health or safety.
I turn now to consider options that are available to the court. Section 70NF provides that Subdivision B applies in the following circumstances: firstly, if an order under the Family Law Act affecting children has been made, (and, clearly, that applies in this case); secondly, where a court having jurisdiction under the Act is satisfied that a person has, whether before or after a particular date, committed a contravention of the primary order (and that clearly applies as well); next, the Subdivision applies if the person does not prove that he or she had a reasonable excuse for the current contravention. I have found that the wife has not proved on the balance of probabilities that she had a reasonable excuse for the current contravention.
The Subdivision is also expressed to apply if either of the following adheres: firstly, where no court having jurisdiction under the Family Law Act has previously determined that the person has without reasonable excuse contravened the primary order. That requirement clearly applies and hence I need go no further.
Section 70NF(2) states that the Subdivision does not apply if the court dealing with the contravention is satisfied that the person who contravened the primary order has behaved in a way that showed “a serious disregard for his or her obligations under the primary order”. In my view, this matter has come very close indeed to satisfying that requirement.
Notwithstanding that fact, I am prepared to deal with the matter under Stage 2 of the parenting compliance regime — having regard to the fact that this is the first occasion on which a court has determined that the wife has contravened a contact order.
The options that are available to the court are set out in section 70NG. They are very limited, but they include an order directing the wife to attend before the provider of a specified appropriate post-separation parenting program, so that the provider can make an initial assessment as to her suitability to attend such program. If the wife is suitable to attend, then the court can direct the wife to attend the program. I propose to make the usual order to that effect. In other words, I order that the wife attend an appropriate post-separation parenting program, to endeavour to assist her to deal with the problems that have been highlighted by this contravention application.
The next option that is available to the court is an order described as “a further parenting order”, that compensates for contact foregone as a result of the contravention. I propose to make just such an order. As far as I am concerned, contact between these children and their father at the present time (and having regard to all the circumstances of the matter presently before me) is far more important than the need for the children to attend school at this time of the year. I will hear from the father as to how quickly arrangements can be made for him to collect the children for an appropriate make-up contact arrangement.
A further option that is available to me is to adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order that discharges, varies or suspends the primary order or revives some, or all of an earlier parenting order. I commented to the wife earlier today that she always has the option to make an application to discharge or vary or suspend the current orders — but for so long as they remain in force, they must be complied with. But let me say for the sake of the record, and as I indicated earlier, I place no weight on the assertion by the wife that the children have in fact suffered in some way from the contact that occurred in July.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate: Paul O'Halloran

Date: 2 December 2002