Meadows & Meadows (No. 8)
[2021] FamCA 305
•14 May 2021
FAMILY COURT OF AUSTRALIA
Meadows & Meadows (No. 8) [2021] FamCA 305
File number(s): PAC 3509 of 2013 Judgment of: REES J Date of judgment: 14 May 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where the applicant seeks personal protection orders under section 68B of the Family Law Act 1975 (Cth) – Where this application may be determined without a substantive application – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 68B Number of paragraphs: 47 Date of hearing: 12 May 2021 Place: Sydney Applicant: Self-Represented Respondent: Self-Represented ORDERS
PAC 3509 of 2013 BETWEEN: MS MEADOWS
Applicant
AND: MR MEADOWS
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
14 MAY 2021
THE COURT ORDERS:
1.That the application of Ms Meadows filed 22 July 2020 seeking orders pursuant to s 68B of the Family Law Act 1975 (Cth) be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
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).
REASONS FOR JUDGMENT
Rees J:
Proceedings in relation to parenting and property between Ms Meadows (“the mother”) and Mr Meadows (“the father”) were heard and determined by reasons for judgment delivered and orders made on 30 July 2019. Relevantly, in relation to the child B who was born in 2011, the following orders were made:
(8)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 6.30pm and 7.30pm each Wednesday and each non-contact Saturday.
(9)That the mother’s telephone conversations with the child, as provided for in Order 8 hereof shall be supervised by the father, or his nominee, for the next three (3) months only and are not to be lengthy. The father may terminate the call at the conclusion of fifteen (15) minutes of time or at any time he concludes the mother’s conversation with the child has become inappropriate.
The mother appealed against the parenting and property orders.
The Full Court dismissed the mother’s appeal but made reference to the proper construction of Order 9. In the judgment of the Full Court delivered on 26 May 2020, their Honours stated, in relation to Order 9:
31.We note that in related proceedings brought by the mother while this appeal was pending, another judge of the Family Court expressed the view that although the primary judge’s orders provide that the telephone calls between the mother and child would not be supervised after the expiration of the three month period referred to in the order, his Honour opined that the order permitted the father to continue to be present during the calls to determine whether a call should be terminated either because of its length or the inappropriate nature of the conversation (see Meadows & Meadows [2020] FamCA 12 at [55(a)]).
32.With the greatest of respect to his Honour, that interpretation does not fit comfortably with the order when read as a whole, which in our view serves to specify the way in which the supervision to which the order speaks is to be exercised. Equally, this interpretation does not sit easily with the primary judge’s order for face-to-face time between the child and the mother which is to be unsupervised and his Honour’s reasons in general which recognise there may be uncertainties at the outset of the resumption of time between the child and the mother. Nor does his Honour contemplate a continuation of supervision when discussing the proposed order for telephone calls between the mother and the child (at [74(e)]).
33.Thus we are of the view that the supervision aspect of Order 9 made by his Honour was for a limited duration and the mother and child can expect that their telephone calls can be conducted in private without the father’s presence or hearing.
The limit to the length of the calls is part of the supervisory regime of Order 9 and thus after the expiration of the period of supervision, the time limit to be imposed on the calls also expired.
On 22 July 2020, the mother filed an application seeking orders in the following terms:
1.(Order 1) That pursuant to Section 68B 1(a) & Section 68B 1(b)(i) & Section 68B 1(c)(ii) & Section 68B 1(d)(ii) of the Family Law Act 1975 Part VII an order be made for the personal protection of Ms Meadows ("the applicant mother") (d.o.b …/…/1981) and B ("the child") (d.o.b …/…/2011) restricting and restraining the respondent father Mr Meadows (d.o.b …/…/1979) ("the father") from menacing, harassing or otherwise interfering in the operation and execution of Order 8 of the orders dated 30 July 2019 of His Honour Justice Baumann for the telephone communication time between the applicant mother and child; including restricting and restraining the father from the following:
(a)monitoring, listening, taking notes or otherwise entering during the telephone communication time and/or remaining in the same room as the child during the telephone communication time.
(b)attempting to restrict or restrain the child's telephone communication time
(c)harassing, menacing, hanging up the child's call or advising in any way for the child to end her telephone communication time,
(d)enrolling or allowing the child to partake in any extra-curricular activity or outside of school hours activity during the child's communication to/with the applicant mother.
2.(Order 2) That should the respondent father Mr Meadows fail or act in any manner in which effects the operation of Order 1 above that the matter be able to be relisted within 7 days for hearing and/or amendment of the orders.
(As per the original)
On 14 October 2020, orders were made pursuant to the provisions of s 102QB of the Family Law Act 1975 (Cth) (“the Act”), which had the effect of prohibiting the wife from instituting proceedings under the Act against or in relation to the husband or the child.
However, the application filed on 22 July 2020 remained extant and it is this application that is the subject of these reasons.
Directions to facilitate the hearing of this application were made on 20 November 2020 in the following terms:
3.That in relation to the application filed by the wife on 22 July 2020, seeking orders pursuant to section 68B of the Family Law Act 1975 (Cth):
(a)The wife, not later than 4 pm on 18 January 2021, file and serve all affidavit material upon which she seeks to rely, noting that the wife will be permitted to rely on one affidavit only by herself and one affidavit only of each other witness.
(b)That not later than 4 pm on 18 March 2021, the husband file and serve a response and all affidavit material upon which he seeks to rely, noting that the husband will be permitted to rely on one affidavit only by himself and one affidavit only of each other witness.
(c)That no other affidavits are to be filed without the leave of the Court first obtained.
(d)That the matter be listed for call-over and the allocation of a hearing date on 16 April 2021.
Neither party complied with those directions and each sought to rely on affidavits filed in respect of earlier proceedings.
The mother was permitted to rely on an affidavit sworn by her on 6 July 2020 together with affidavits of Ms FF sworn 13 December 2019; Dr HH sworn 1 November 2019 and Dr GG sworn on 17 December 2019.
The father was permitted to rely on an affidavit sworn by him on 8 October 2020.
The mother seeks to invoke the provisions of s 68B of the Act which provides:
68B Injunctions
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i) a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v) a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i) a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.
Thus, in considering the mother’s application for orders pursuant to s 68B, it is necessary first to determine whether the orders she seeks are orders for “the personal protection of the child”.
I am unable to conclude that an order restraining the father from “interfering in the operation and execution of Order 8 of the orders dated 30 July 2019” is an order for the personal protection of the child.
I accept that an order restraining the father from menacing or harassing the child is an order for the personal protection of the child.
I accept that an order restraining the father from “monitoring, listening and taking notes” of the child’s telephone conversations with the mother is an order for the personal protection of the child.
An order restraining the father from “attempting to restrict or restrain the child’s telephone communication” is not an order for the personal protection of the child. Where an order has been made for telephone calls between the child and the mother, as in this case, and it is asserted that the father has breached that order, the appropriate application is an Application - Contravention. The mother filed such an application on 11 February 2020 alleging contraventions by the father in relation to telephone calls on three occasions in February 2020. That application was heard on 27 April 2020 and dismissed.
The Court has made an order for telephone calls between the mother and the child. To seek an order that the father comply with an existing order, or be restrained from not complying with an order, is an abuse of process.
I accept that an order restraining the father from “harassing, menacing” the child in relation to a telephone call is an order for the personal protection of the child.
I do not accept that an order restraining the father from enrolling the child in an activity that interferes with telephone calls is an order for the personal protection of the child. Such activity may in appropriate circumstances, ground an Application - Contravention but does not attract the provisions of s 68B.
Thus I will consider whether it is just and convenient, having regard to the best interests of the child, to make an order protecting the child from being harassed or menaced in relation to telephone calls and whether it is appropriate to make an order that the father not monitor, listen or take notes of the child’s telephone conversations with the mother.
The mother bears the onus of proof.
APPLICATION FOR AN ORDER RESTRAINING THE FATHER FROM HARASSING OR MENACING THE CHILD
Ms FF swore an affidavit on 13 December 2019. She deposed to listening to a telephone call between the mother and the child on 11 December 2019 on loudspeaker. Her evidence is that after 17 minutes, the father was heard to say “that’s enough” and the conversation was ended five minutes later. Ms FF’s evidence does not suggest harassment or menacing.
Dr GG’s evidence does not traverse the issue.
Dr HH gave no relevant evidence.
The affidavit of the mother, sworn on 6 July 2020 relevantly states:
·At paragraph 69, that, the father is “aggressively interfering’ with the child’s communications. No evidence is given of the nature of the interference at this paragraph and no date upon which the interference is asserted to have occurred is specified.
·At paragraph 125, the mother deposed that on 24 June 2020 the father “aggressively voiced to B to get off the phone…” after 19 minutes of conversation.
·At paragraph 126 the mother deposed that, on 27 June 2020, “B advised me… her father had entered the room and aggressively told her to get off the phone”. The mother does not depose that she heard the father say anything.
·At paragraph 126 the mother gives evidence of a series of leading questions which she asked the child culminating with “Is your dad scaring you?” to which the child assented.
·At paragraph 130 the mother deposed that, on 27 June 2020, she feared the father would take the phone from the child aggressively.
·At paragraph 139 the mother deposed that, on 27 May 2020, the father “aggressively” told the child to get off the phone.
·At paragraph 292 the mother deposed that on 19 February 2020:
… The father kept entering the room telling [the child] words to the effect “It’s time to get off the phone now B”. The last of which he was aggressive toned…
·At paragraph 348 the mother deposed that the father:
…entered the room again but with a purposely put on happy but nasty smug tone of “Time to get off the phone B” at 21 minutes into our conversation.
The mother tendered transcripts of her telephone conversations with the child on 18 July 2020; 22 July 2020; 25 July 2020; 1 August 2020; 5 August 2020; 27 August 2020 and 30 August 2020.
In the conversation on 22 July 2020, the child told the mother, in answer to the mother’s questioning, there was no one in the room with her. At the end of what appears to be a lengthy conversation, the child said “I need to go now”. The mother said “Is that because your dad’s asking you to go?” and the child said “Yes”. The transcript does not show that the father said anything.
At page 13 of the transcript of the conversation on 5 August 2020, the child is recorded as saying “I need to go now”. The mother asked “Are you being told to go?” and the child replied “Yes”. The mother said “Do you want to talk longer?” and the child said “Yes”. The conversation then continued for another three pages of transcript. Again the transcript does not show that the father said anything.
In the bundle of documents including text messages which forms Annexure G to the mother’s affidavit of 6 July 2020, there is a series of texts where the father advised the mother that the child had joined a soccer team and that training finished at 7 pm. The father told the mother that he would arrange for the child to call her, “just after 7pm”. The mother responded:
…I will be calling B in between the 6.30 and 7pm as this is court ordered and when I am available. Have her available to speak to me or you will be contravening the orders.
I will call B at 6.31 as that is our usual time for speaking…
(As per the original)
I note that the orders provide for the calls to take place between 6.30 pm and 7.30 pm. If it is the mother’s interpretation of that order that the call must commence at 6.30 pm and can last until 7.30 pm, then she must understand that is not the effect of the order. The order requires only that there must be a phone call which is initiated after 6.30 pm and ends by 7.30 pm.
At Annexure P to the affidavit of 6 July 2020, the mother annexes a text message to the father dated 27 May 2020 which states, inter alia:
…as per the rules of the court you are not allowed to cease B’s calls…you have entered spoken to her rudely and hung the phone up. She does not have to end her phone call especially prior to 7pm when she is not in bed and you are not allowed to listen…
(As per the original)
The father’s response, if any, was not annexed.
Annexure T to the affidavit of 6 July 2020 is a text from the mother to the father referring to the father’s interrupting the child’s call on 16 May 2020.
Annexure U to the affidavit sworn 6 July 2020 is an email to the father from the mother dated 29 April 2020 stating that the child told the mother that the father indicated “to her around 19 minutes that she had to get off the phone”.
Annexure X to the affidavit of 6 July 2020 includes an undated email referring to “after my phone call to [the child] cut out”.
I am able to find, in the affidavit sworn 6 July 2020 or the annexures to the affidavit, assertions by the mother that the father used an aggressive tone when asking the child to end a phone call on 19 February 2020; 27 May 2020; 24 June 2020 and 27 June 2020.
The mother also tendered, without objection, the documents which had been annexed to her affidavit sworn 31 August 2020. Those documents contain no evidence relevant to the issues to be determined here.
The father in his affidavit sworn 8 October 2020 denied using an aggressive tone to the child.
The evidence of the mother, which has been comprehensively set out above, does not establish that the father has harassed or menaced the child.
APPLICATION FOR AN ORDER RESTRAINING THE FATHER FROM MONITORING, LISTENING OR TAKING NOTES OF THE CHILD’S PHONE CALLS WITH THE MOTHER
Ms FF, Dr HH and Dr GG give no relevant evidence about this issue.
The affidavit of the mother, sworn on 6 July 2020 relevantly states:
·At paragraph 106(s) the mother alleges “criminal acts [by the father] of having others listen to my private calls with my child…” The mother does not assert that the father listened.
·At paragraph 292 the mother deposed that on 19 February 2020:
[The father] kept entering the room telling [the child] words to the effect “It’s time to get off the phone now B”. The last of which he was aggressive toned…
I have set out earlier in these reasons, the evidence of the mother in relation to her assertions that the father entered the room while the child was speaking to the mother. She does not assert that he remained in the room during the conversations; that he listened to the conversations or that he took notes.
The mother recorded the conversations and regularly told the child that the conversations were being recorded, as is clear from the transcribed conversations.
CONCLUSION
The mother has not demonstrated that the best interests of the child require that orders be made either restraining the father from harassing or menacing the child, or from monitoring, listening or taking notes of the child’s conversations with the mother.
The mother’s application for orders pursuant to s 68B will be dismissed.
It is therefore not necessary to consider the balance of the mother’s application which seeks consequential orders and that will also be dismissed.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 14 May 2021
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