Meadows and Meadows (No 2)

[2020] FamCA 325

FAMILY COURT OF AUSTRALIA

MEADOWS & MEADOWS (NO. 2) [2020] FamCA 325

FAMILY LAW – CONTRAVENTION – Children – Prima Facie case against the father not established.

Family Law Act 1975 (Cth)

APPLICANT: Ms Meadows

RESPONDENT: Mr Meadows

FILE NUMBER: PAC 3509 of 2013

DATE DELIVERED: 28 April 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Henderson J

HEARING DATE: 27 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE RESPONDENT: Ms Smythe

Orders

1. The mother’s Contravention Application filed 11 February 2020 is dismissed.

2. These orders have been amended pursuant to paragraph 17.02(1)(e) of the Family Law Rules 2004.

THE COURT NOTES THAT:

1. The mother’s appeal has been heard and is awaiting a judgment from the Full Court.

2. The mother’s position is she is unable to attend supervised changeover to commence spending time with her child in accordance of Orders of Justice Baumann of 30 July 2019 and 19 September 2019.

3. There is no justiciable issues raised in the mother’s Application in a Case filed 3 April 2020 consequent upon the dismissal of the mother’s Contravention Application.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Meadows & Meadows has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 3509 of 2013

Ms Meadows

Applicant

And

Mr Meadows

Respondent

REASONS FOR JUDGMENT

1. The matter of Meadows is a Contravention application heard by way of Microsoft Teams with the father represented by Ms Smythe, his lawyer, and the mother on the telephone.

2. The Contravention is the mother’s application for alleged contraventions by the father of Orders of this Court, application she filed on 11 February 2020 together with an Affidavit in support. The mother represents herself, and Ms Smythe represented the father. The father denies he has contravened any orders, thus this judgment concerns whether he has a prima facie case to answer.

3. The material I read was as follows:

   a)For the mother:

   i)Application for Contravention and an Affidavit filed 11 February 2020;

   ii)An updating Affidavit and annexures filed 14 April 2020;

   iii)The primary Judgment of Baumann J of 30 July 2019;

   iv)An additional Judgment, which I have called the amendment Judgment, of his Honour delivered on 19 September 2019;

   v)A further Judgment, being a stay of his Honour’s Judgment pending an appeal filed by the mother and dated 29 October 2019;

   vi)The mother’s amended Notice of Appeal;

   vii)The mother tendered Mother’s Exhibit 1, which is an email from the mother to the father and the Independent Children’s Lawyer dated 6 November 2019 regarding the mother having received no information from the child’s school.

   viii)I read a case outline prepared by herself together; with

   ix)An Affidavit of a witness, Ms FF, who is a psychologist.

   b)For the father I read:

   i)Father’s Exhibit 1, being a series of three emails sent by himself, the first dated 2 August 2019, to his daughter’s school enclosing a copy of Baumann J’s Orders and highlighting in that email his Honour’s primary Judgment and Orders, in particular Orders 12 and 13, which read as follows:

Order 12:

That the father should do all things necessary to authorise the child’s school to provide to the mother, on a regular basis, copies of school reports, newsletters and other information regarding the child’s school activities.

Order 13:

That the mother and father shall be at liberty to attend the child’s school for parent-teacher interviews, school assemblies, school carnivals, extracurricular activities and any other events parents are normally invited.

1. That email also highlighted that these were the final orders and that the mother was not permitted to collect the child from the school, not that the father believed this would occur.

2. The second email from the father is dated 1 August 2019 to GGG Service, being an enrolment form he completed.

3. The third email was an email to the mother dated 9 April 2020 advising her that the child was being home-schooled due to the COVID-19 difficulties currently faced in the world, confirming in his email that he had again asked the school to forward reports and the like to the mother and provide her the information pursuant to his Honour’s Orders, further advising her again to obtain the information herself by downloading the SkoolBag app and the mother’s response.

4. The mother was cross-examined, and, as I have said, the hearing was conducted by Microsoft Teams for the husband and his solicitor and on the telephone by the wife. Both parties made oral submissions after the conclusion of the evidence. This Judgment relates to whether the mother has established a prima facie case against the husband in relation to five alleged contraventions.

5. There are three categories of contraventions.

6. The first category of contravention is that the mother alleges on 8 February 2020 the respondent father, without reasonable excuse, refused to allow the applicant mother to spend time with the child B by intentionally withholding the child in his care and failing to facilitate changeover of the child at the UU Town service station.

7. The second category of contraventions deal with telephone calls and are three in number. The first is 8 February 2020. The mother alleges the respondent father, without reasonable excuse, refused to allow the applicant to talk longer than 15 minutes on the telephone without the child being advised to end her telephone call, and the mother alleges a similar contravention on 1 February 2020 and 5 February 2020.

8. The final category of contravention relates to provision to the mother of information concerning the child’s schooling. The mother alleges on 1 December 2019 the respondent father, without reasonable excuse, has failed to supply or caused the school to supply any schooling information on B, including school reports, regular events and activities of terms three and four of the year 2019 that B was involved.

9. I have read out Order 12 of his Honour’s Orders, which relates to the last alleged contravention alleged failure to provide information in relation to B’s schooling by the father. Order 12, I will reiterate, is as follows:

   That the father shall do all things necessary to authorise the child’s school to provide to the mother, on a regular basis, copies of school reports, newsletters and other information regarding the child’s school activities.

10. I am satisfied the husband has complied with his Honour’s Order from his email to the school of 2 August 2019, which has been tendered; his email to the mother of 9 April 2020. It would appear to me that the mother is under the misapprehension that the father must check if the school has carried out his request when what is contemplated by the Order is the father advising the school and requesting them to provide to the mother the relevant information.

11. It is not the Order that his Honour made that the father must check and ensure the school carries his request out. He merely has to request it be done, and he has done so. He has carried out his obligation pursuant to Order 12 of the Orders. He has done all he was required to do, and I note that the mother has the capacity to download the school app – and I am unsure whether she has done this – and contact the school if they have not sent her the information she is entitled to. The mother has, on these facts, failed to realise the husband has no control over the school’s decision in relation to his request to forward information to her, and she must pursue this as the husband has done or the father has done all he can.

12. On these facts, the mother has failed to establish that the father has a prima facie case to answer for a breach of Order 12 of his Honour’s Orders of 30 July 2019.

13. Going to the second group of contraventions, being three relating to telephone calls.

14. The mother alleges on 8 February 2020, 1 February 2020 and 5 February 2020 the father refused to allow the applicant to talk longer than 15 minutes on the telephone without the child being advised to end the call. There is three aspects to this count. The first is the mother says the father has breached Order 8 of his Honour’s Orders, and I confirmed this with her in open court and that is the Order that she says he has breached on these three occasions. That Order reads as follows:

    That the child shall communicate with the mother by telephone as agreed between the parents but, failing agreement, on at least between the hours of 6.30 pm and 7.30 pm each Wednesday and each non-contact Sunday.

15. Second, there is no complaint raised by the mother that she does not have telephone contact with the child on Wednesday and each non-contact Sunday, and the child and mother do speak on these occasions.

16. There is no requirement or obligation on the father to allow, encourage, permit, whatever words you wish to use, the child to speak to the mother for more than 15 minutes on the phone in Order 8. The Order compels the father to provide the child between the hours of 6.30 and 7.30 pm on those specified days to speak to her mother, and this has occurred even on the mother’s own evidence. Issues about 15 minutes or a time period appear in Order 9. However, the mother does not allege that the father has breached that Order.

17. Thirdly, on the mother’s own evidence and that of her witness Ms FF the child speaks to the mother for more than 15 minutes, and on 1 December 2019 when Ms FF was at the mother’s accommodation listening in on the telephone call because it was on loudspeaker the mother and child spoke for 22 minutes. The mother agreed she had spoken to the child for more than 15 minutes on occasions. What the mother and her witness complained about is that the father interrupted or encouraged the child to cut the conversation short when she, the child, did not want to. However, there is simply no breach by the father, as alleged by the mother, of Order 8 in that the child speaks to the mother between those hours on the designated day and there is no time period specified therein.

18. Therefore, I do not find that there is any prima facie case established against the father in relation to those alleged breaches.

19. In relation to the last breach or the first count, which is that the father failed to facilitate the child being made available to the mother on 8 February 2020 at a changeover at the UU Town service station, that relates to Orders 4(a) through to (c) of his Honour’s initial Orders of 30 July 2020, which must also be read with his Honour’s amending Orders of 19 September 2019, being Orders 1(a), (b) and (c). Those two Orders must be read together for this particular count at least.

20. Upon a strict reading of his Honour’s orders of 30 July 2019, the child and mother should now be spending time each second Saturday from 10 am to 6 pm, and, pursuant to his amended Orders of 19 September 2019, the changeover for B to come into her mother’s care should be occurring at UU Town service station.

21. The father agrees and cannot escape his position clearly set out in an SMS to the mother attached to her affidavit in support of the contravention of 11 February 2020 and this is his position, and I will read that SMS message out:

    Hi Ms Meadows. As I have previously advised you, given that you have failed to comply with orders 4(a), 4(b), 5 and 6, I don’t believe that you can just skip those orders. So I will not be bringing B to UU Town this Saturday. If you would like to see B then I suggest that you contact the Suburb MM Children’s Contact Centre as per the orders.

22. It is also correct that this is the position the father has maintained since at least that time, if not before, and that continues to be his position today.

23. The mother argues the father has thereby breached his Honour’s Order of 30 July 2019, being order 4(c), and 19 September 2019, being Order 1(c) because he has not brought the child to the UU Town service station.

24. The father’s position is that the carefully and thoughtfully structured regime of time his Honour crafted has not yet begun as the mother has refused, chose not to, could not, whatever words you wish to use, complied with his Honour’s Orders of 30 July 2019, being orders 4(a) and (b) and commenced to spend time with the child by way of changeover occurring at the Suburb MM Contact Centre for a period of six months. The father argues that as the mother has failed to commence time with the child on an increasing regime of time by way of changeover occurring at the Suburb MM Contact Centre for a period of six months the regime of time has not yet commenced, and, therefore, the father cannot quickly go to, or go to, or could be in breach of Order 4(c) of his Honour’s Orders because the mother’s time with the child, in accordance with his Honour’s Orders, has yet to commence.

25. The mother cannot escape the fact that she has not attended the contact centre for changeover in accordance with his Honour’s Orders and agreed this was correct in Court.

26. The father says the Orders cascade and one Order follows the other, Order 4(a), then Order 4(b), then Order 4(c), and they cannot be jumped. They must be carried out in accordance with the regime of time and the structure that his Honour put in place.

27. The mother also agreed that this was how the Orders read. Her argument, however, was that she had filed an Appeal against his Honour’s Orders almost as soon as they were delivered; that she went before his Honour in September 2019 where he said, at paragraph 15 of that Judgment:

    Taking on board some of the submissions the Court heard today, the Court raised as a proposition for submission whether when the child spends time with the mother under 4(c) and (d) takes effect, noting that time for day from 10 am to 6 pm under 4(c) will not take effect until six months from the date of the orders, which means, effectively, the beginning of the next school year in or about January/February 2020, whether it will be better for the changeover place to change.

28. So the mother submitted to me that his Honour, by that comment in paragraph 15, was aware that at six months from the date of his Orders, basically February this year, the mother and child would be spending a day together, changeover occurring in an unsupervised setting at UU Town service station.

29. Secondly, the mother said his Honour knew at that time that the mother had not carried out Orders 4(a) and (b), said at paragraphs 19 and 20 of this Judgment that he would not amend Orders 4(a) and 4(b), that it is clear he knew this.

30. What his Honour says at paragraph 18 is this:

    For the reasons which I gave that seem to me to be a significantly-important issue where there had been no time between B and her mother for some time because, for the reasons again referred to on my reasons for judgment, the mother refused to facilitate a supervised environment to spend time with B. When the order was made to commence unsupervised time of four hours, it was well within the understanding of the court that length of time would not be sufficient to allow the mother to return to her home.

31. Paragraph 19:

    I was anxious to provide an opportunity and hopefully an incentive to the mother to exercise unsupervised time with the child when she had refused to exercise, for the reasons she articulated, supervised time. It was always anticipated by the Court that if the time was to occur between 10 and 2 then it would be, in my view, necessary for that time to occur in and around the Suburb MM area. Because the Suburb MM Children’s Contact Centre is available for those hours, I see no basis to amend paragraph 4, and I do not do so.

32. Paragraph 20:

    The same reason applies to order 4(b), and I do not propose to change it to 9.30 to 3.30 pm. In respect of orders (c) and (d), I propose to amend the orders to provide that when paragraph 4(c) operates – and 4(d) will first operate in May 2020 – changeovers will take place at the service centre at UU Town.

33. The mother submitted to me that his Honour intended or knew or was content or understood that the mother and child would instantly leapfrog to Order 4(c) and spend time from 10 to 6 with changeover at UU Town in an unsupervised setting when the child and mother had not yet commenced any time, be it the initial time his Honour Order in his original Judgment from 10 to 2 for three calendar months each Saturday then, for a period of three calendar months, each second Saturday from 10 to 4 with changeover to be supervised at the Suburb MM Contact Centre.

34. The mother is mistaken and has not read correctly what his Honour reasoned and what his reasons were, and this was pointed out to me very well by Ms Smythe on behalf of the husband. Going to the stay application paragraph 16 –the decision of 24 October 2019 – his Honour says this, and this encapsulates the submission of the father:

    The effects of the orders were that after the initial period of six months, where changeovers were to occur at the Suburb MM Children’s Contact Centre, the changeovers thereafter, which included every second Saturday from 10 to 6 unsupervised, would occur at the service station at UU Town. The mother says, as a result of a change of her circumstances, she is unable to afford or attend the Suburb MM Children’s Contact Centre. Her application to vary orders which I have already indicated I cannot deal with suggests other place of changeover.

35. What his Honour had set out there at paragraph 16 was the basis of his original reasoning, being that after an initial period of the mother and child spending increasing periods of time together on a Saturday facilitated by changeover at a supervised contact centre the child and mother would go to unsupervised changeovers for a whole day of time, and he amended changeover to the UU Town service station. The fact of the matter is the mother has never attended for a supervised changeover on any occasion.

36. In his decision of 19 September 2019, the variation Judgment, at paragraph 19 – and I have read this out and will read it out again as it is important , His Honour says, importantly:

    I was anxious to provide an opportunity and hopefully an incentive to the mother to exercise unsupervised time with the child when she had refused to exercise, for the reasons she articulated, supervised time.

37. His Honour gave her that opportunity inconsistently with the Independent Children’s Lawyer and father’s position that there should be supervised time. He said, “No, it will be unsupervised time but that the changeover will be supervised for a period of six months.” None of this has occurred due to the mother’s refusal, failure, inability, for whatever reason, to attend on any occasion at the Suburb MM Contact Centre.

38. At paragraph 79(c) of his Honour’s Judgment of 30 July 2019, his Honour says – I am sorry, it is not 79(c). I am sorry. In his Judgment of 30 July 2019, his Honour said he would not contemplate overnight time at this stage but that if the Orders he has pronounced are complied with and the matter proceeds well that, perhaps, this can be something that can occur in the future, and I will just find where his Honour say this. It is at 74(c) his Honour says following:

    I accept that if the orders I pronounce are complied with fully and there is no evidence that the mother has made any denigrating comments to the child, as she and the father are restrained from doing, then overnight contact after a period of 12 months could be contemplated by the parties.

1. He put in place some mechanism to try and assist with such discussion on this issue. Clearly, his Honour’s intention was for there to be a slow and gradual increase in the child’s time with her mother, initially changeover to be supervised but only changeover, not the mother’s time, at the Suburb MM Children’s Contact Centre and after a period of six months no supervised changeover and a full day of time with the mother and the child. It is the mother who has failed to comply with his Honour’s orders, not the father.

2. To assert that because the mother chose not to do the slow, gradual increase in time in a supervised changeover setting for a period of six months that she can now leapfrog to a full day without any supervised setting changeover or any runs on the board of how changeover goes and how she and the child react and how the child reacts with her would make a mockery of his Honour’s carefully-crafted and well-reasoned Orders and would make a mockery of the clear intention behind his Honour’s Orders.

3. Therefore I find the mother has failed to establish any prima facie case against the father to answer, and her Contravention Application filed 11 February 2020 is dismissed.

I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 28 April 2020.

Associate:

Date: 6 May 2020