Millson & Halbert
[2021] FamCA 352
•1 June 2021
FAMILY COURT OF AUSTRALIA
Millson & Halbert [2021] FamCA 352
File number(s): SYC 6260 of 2007 Judgment of: HARPER J Date of judgment: 1 June 2021 Catchwords: FAMILY LAW – Contravention application –
Where allegations of contravention made by the mother – mother alleged breach of order by the father in failing to inform her of his ultimate decision on schooling – Where no case to answer – Where an allegation of contravention that the father failed to complete necessary intake forms with MM Services to enable supervised time to commence – Where case to answer established – Where no case to answer in respect of allegation of failure to make children available on specific dates for supervised time – Where variation of final orders may be necessary – Where application stood over to receive evidence and argument concerning reasonable excuse.Legislation: Family Law Act 1975 (Cth) ss 65N, 70NAC, 70NAD, 70NAF, 70NBA, 70NDB
Evidence Act 1995 (Cth) s 140(2)
Family Law Rules 2004 (Cth), r 21.06
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363
Marsden & Winch (No.3) [2007] FamCA 1364
Millson & Halbert (No. 2) [2019] FamCA 869
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Number of paragraphs: 54 Date of hearing: 21 April 2021 Place: Sydney Solicitor for the Applicant: Voros Lawyers Counsel for the Respondent: Mr Blackah Solicitor for the Respondent: G & D Lawyers ORDERS
SYC 6260 of 2007 BETWEEN: MS HALBERT
Applicant
AND: MR MILLSON
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
1 JUNE 2021
THE COURT ORDERS THAT:
1.By no later than close of registry filing on 21 June 2021:
(a)the Respondent Father file and serve any affidavit upon which he proposes to rely on the question of reasonable excuse;
(b)the parties have leave to file and serve any application for variation of the orders made on 27 November 2019, specifying the statutory basis for such variation, and the precise orders sought.
2.The proceedings be stood over to 23 June 2021 for mention.
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 Millson & Halbert has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Harper J
INTRODUCTION
These are proceedings between the parents of Y born in 2006, and X born in 2011 ("the children"). The Applicant Mother is Ms Halbert ("the mother") and the Respondent Father is Mr Millson ("the father").
Final orders were made by me on 27 November 2019 ("Final Orders").
On 23 October 2020, the mother filed an Application-Contravention, under Division 13A of the Family Law Act 1975 (Cth), alleging breaches of those final orders by the father ("the contravention application").
Any statutory references in these reasons are to the Family Law Act 1975 (Cth) ("the Act"), unless otherwise stated.
BACKGROUND
Reasons for judgment were delivered on 27 November 2019: Millson & Halbert (No. 2) [2019] FamCA 869 (“the primary judgment”).
The Final Orders were quite detailed. It is unnecessary to set them out in full for the purposes of this judgment. I will refer to individual orders as necessary in the course of these reasons. I note here, however, that I ordered the children to live with the father and made an order allocating sole parental responsibility to him. Detailed orders were made which were designed for the children to spend a block of time away from the mother, than for a reintroduction of supervised time with the mother, possibly leading to unsupervised time.
The mother filed an Application – Contravention on 23 October 2020. The details of the alleged contraventions are discussed below.
This judgment deals only with the question of whether the mother has established a case to answer in respect of her allegations of contravention against the father.
STANDARD OF PROOF
The mother relied upon the provisions of Division 13A of Part VII of the Act.
Section 70NAF(1) provides that the standard of proof to be applied "in determining matters under this Division" [Division 13A] is proof on the balance of probabilities".
This is the civil standard and is readily distinguishable from the criminal standard of proof "beyond reasonable doubt", which applies in some contravention hearings. Section 70NAF(3) provides for the criminal standard of proof, in relation to some specified types of orders, which may be characterised broadly as imposing the more serious types of sanction. These are not relevant to the contraventions alleged in the present matter.
The degree of satisfaction required within the civil standard can vary. Where the allegations of fact involve criminal or quasi-criminal conduct the degree of satisfaction may need to be stronger, taking account of the nature of the subject matter, the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding: in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-363; [1938] HCA 34; s 140(2) of the Evidence Act 1995 (Cth). Division 13A provides for a range of sanctions ranging from orders for make-up time to fines and imprisonment.
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66 at 170-171 the High Court further illuminated the position as follows:
"The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove."
Thus, even though proceedings under Division 13A are civil proceedings, a stronger degree of satisfaction may be applicable depending on the nature of the allegation of contravention: Marsden & Winch (No.3) [2007] FamCA 1364 at [136]-[138].
CONTRAVENTION OF AN ORDER
Section 70NAC makes it clear a person is taken to have contravened an order "if, and only if" the person intentionally either failed to comply with, or made no reasonable attempt to comply with, the relevant orders. It is in the following terms:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii) made no reasonable attempt to comply with the order; or
(b) otherwise—he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
Section 70NAD provides, relevantly:
For the purposes of this Division:
(a)…
(b) a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order;…
Section 65N(2) provides that:
(2) a person must not
(a) hinder or prevent a person and the child from spending time together in accordance with the order; or
(b) interfere with a person and the child benefiting from spending time with each other under the order”.
EVIDENCE
The mother relied upon her Contravention Application filed 23 October 2020; her affidavit sworn on 14 October 2020, filed 23 October 2020, and her second affidavit sworn 14 October 2020, filed 23 October 2020. She was not cross-examined.
The father filed no evidence at this stage of the proceedings (Family Law Rules 2004 (Cth), rule 21.06).
ALLEGED CONTRAVENTIONS
The first alleged contravention was said to be of Order 3, which is in the following terms:
3.Prior to the father making decisions concerning major long term issues relating to the children, including but not limited to their health and education, the father shall notify the mother in writing, such writing to include SMS or email communication, of his proposal and seek her response in writing within 21 days and take into account the mother’s response, provided such response is received within the stated period, and notify the mother of his ultimate decision.
The mother's evidence shows that on 24 December 2019 the father emailed the mother advising her that he was "looking to change both girls [sic] schooling in January 2020 and thereafter". He informed the mother that he had contacted the Registrar of NN School in Suburb RR for Y, and if unsuccessful enrolling her there, he would seek to enrol her at QQ School. He advised he emailed PP School with a view to April commencing Year 3 there. The mother responded by email saying: "…if you believe it is in the best interests of Y & April, I fully support your decision."
The alleged contravention is that after this exchange, the father failed to notify the mother of "his ultimate decision". The mother gave evidence that she was unaware of the children's schooling at the date she swore her affidavit.
The father argued there was no contravention. He says the evidence shows the parties made a joint decision about schooling. I do not accept this argument. The father presented the mother with proposed schools and in respect of Y, choice of different schools. He did not then notify the mother of his ultimate decision.
Having said that, the requirement for notification in Order 3 forms the final step in a process requiring the father to involve the mother in his decision making about choosing a school. The broad nature of the mother's response in her email "I fully support your decision" could reasonably be understood as the mother agreeing to whatever the decision the father made. A failure to tell the mother of the ultimate decision is equally consistent with the father taking the view that he had made a reasonable attempt to comply with Order 3. I accept that the father made a reasonable attempt to comply with Order 3. It follows that if the father made a reasonable attempt to comply, he did not intentionally fail to comply. I am not satisfied that either s 70NAC(a)(i) or (ii) have been met in relation to this contravention.
I find that the father has no case to answer in respect of this contravention.
The second contravention alleged is that the father did not comply with Order 15(c). Order 15 dealt with steps to bring about supervised time for the children with the mother. It is in the following terms:
The father shall, as soon as practicable, after the date of these orders:
(a) nominate a supervised contact service, offering free or subsidised places;
or
(b) if no such service is available within one month, a contact service requiring payment;
and
(c) the mother and father shall complete all necessary documentation and attend all appointments for the purpose of facilitation of time with the children as outlined in the Orders below.
The mother alleges the father did not complete all necessary documentation.
The assessment of this alleged contravention requires reference to a number of other orders.
Orders 8 and 9 provide:
8. The mother shall:
(a) Attend upon her General Medical Practitioner within 14 days of the date of these Orders and obtain a referral to a suitably qualified psychiatrist (“the psychiatrist”);
(b) Make an appointment to attend upon the psychiatrist at the earliest available date, such appointment to be made within 7 days of having obtained the referral;
(c) Advise the Independent Children's Lawyer and the father of the details of the psychiatrist and the scheduled appointment within 48 hours of having made the appointment;
(d) Attend upon the appointment with the psychiatrist.
(e) The mother follow all recommendations of the psychiatrist.
9. Leave is granted to the Independent Children's Lawyer to provide to any of the mother’s treating health care professionals, including the mother’s General Medical Practitioner, Dr C, and the nominated psychiatrist a copy of the Single Expert Report prepared by Ms B dated 11 June 2018, a sealed copy of the orders dated 27 November 2019, and a copy of the Reasons for Judgment.
Order 14 provides:
14. Upon the expiration of three months after the date of these orders, the mother is to provide to the father and Independent Children’s Lawyer a report from her treating psychiatrist with such report to address the mother’s compliance with the psychiatrist’s recommendations.
The reference in Order 15(c) to the "Orders below" includes Order 16, which provides:
16. If the report referred to in Order 14 indicates that the mother has been compliant with the recommendations of her treating psychiatrist, the father shall take all necessary steps to arrange for the children to spend time with the mother for a period of three months, each fortnight for two hours supervised by the nominated supervision service and to be paid for by the father, until such time as a free or subsidised service is available.
According to the mother's evidence, she received an email from MM Services on 29 January 2020, describing the intake process and enclosing various forms. The email showed the father had initiated this process. The mother completed the forms.
However, on 18 February 2020, MM Services emailed the mother stating that by reason of an impasse reached between the father and the mother about a venue, the intake process could not commence. MM Services also stated they had not received all documents required. It appears the father had not completed the documents required from him. The email extracted part of an email from the father to MM Services. The extract included the statement that the father would not agree to supervised contact between the mother and the children taking place in the mother's home. The evidence shows the father proposed supervised contact at Suburb OO.
The father argues that his obligation to comply with Orders 15(c) and 16 never arose because Order 8 was never satisfied by the mother, and as a result Order 14 was never satisfied. Therefore the obligations in Orders 15(c) and 16 were never "triggered". Consequently, he argued that he did not breach Order 15(c).
It can be seen that Order 8 required the mother to obtain a referral from a GP to a psychiatrist, to make appointments with and attend upon the psychiatrist and follow all recommendations of the psychiatrist. It is necessary to refer to some further factual matters at this point.
Dr AA had been the mother’s treating psychiatrist for some time. He was referred to in the judgment of 27 November 2019. He provided a handwritten report dated 27 February 2020 addressed to the Independent Children’s Lawyer (“ICL”). In this report, Dr AA recorded that he had seen the mother on 12 and 20 December 2019 (the letter actually says 12 and 20 December 2020, but this is obviously an error), and 13 and 27 February 2020. He states that he has been helping the mother "with cognitive therapy for depression and anxiety to challenge negative and worrying thoughts" and that he had increased the number of the mother's sessions to weekly bookings. He confirmed the mother "has complied with medication management and attended cognitive therapy as per my recommendations", and that he had “considered the Judgment, Orders and Family Report”. He stated that it was his belief it was important for the mother "to commence supervised access fortnightly for 2 hours to assist in her wellbeing and for the mother daughter relationship." The mother sent this report to Legal Aid NSW on 27 February 2020.
On 5 March 2020, the solicitors for the father wrote to the ICL, noting they had seen Dr AA's report. They expressed concern about the increase of the mother's sessions with Dr AA to weekly, and asked the ICL to inquire of Dr AA as to the reason for the increase. The letter also refers to telephone call to the father on 24 February 2020 from the Z Police who expressed concern about the children spending any time with the mother. The father's solicitors raised a concern that Dr AA did not mention any contact from police in his report of 27 February 2020.
Dr AA wrote a letter to the ICL on 23 April 2020, noting he was seeing the mother for situational stress, depression, anxiety and ADHD. He set out her medications. He also went on, at some length, to express concern that the mother had not seen the children for 5 months. He noted that he is aware the police had been called to the mother's house. He expressed the view that it was "important and safe" for the mother to see the children.
On 6 May 2020, the ICL wrote to the father's lawyers, noting Dr AA had provided a report on 23 April 2020 which complied with Order 14, and seeking confirmation the father had nominated a supervision agency. On 6 May 2020, the solicitors for the mother contacted MM Services by email stating the mother was prepared to spend supervised time with the children at Suburb OO, the venue nominated by the father.
The lawyers then wrote to the ICL on 6 May 2020, setting a range of concerns with Dr AA's report of 23 April 2020. The letter refers to subpoenaed police records which, the lawyers inferred, show the mother was involved in a violent altercation with a Mr J. Mr J was referred to in the judgment of December 2019.
More importantly for present purposes, the letter expresses concern that "the mother is using Dr AA as merely a mouthpiece" and states:
“Dr AA’s treatment of the Mother is not in line with the spirit of the final Orders…It was expected the mother would seek professional medical help in dealing with her underlying mental health issues…Dr AA appears to be supporting the Mother in dealing with the emotional response in losing primary care…We are of the view that Dr AA’s opinions have been compromised and no weight should be given to them.”
It appears that the father decided the reports of Dr AA were not the result of, or did not amount to, compliance with Order 8. The father's argument is that, properly construed, compliance with Order 8 could only be achieved by the mother obtaining a referral from her GP to a treating psychiatrist. He argued that the reasons for judgment suggested this should not be Dr AA. But he conceded Order 8 makes no mention of such a limitation.
There is no evidence of the mother obtaining a referral by a GP to Dr AA. But I infer such a referral was made, because Dr AA treated the mother. He prescribed medications, made recommendations, and stated the mother complied with them.
I do not accept the father could unilaterally decide if the mother had complied with Order 8 or Order 14 on the basis of his own views about Dr AA. The orders granted no discretion to the father to decide if the mother's treating psychiatrist was suitable. Dr AA's report of 27 February 2020 came at the expiration of the three month period specified in Order 14. In my view Order 14 was satisfied. Moreover, the report confirmed the mother’s compliance with Dr AA’s recommendations. This satisfied Order 16.
The father's lawyers' letter of 6 May 2020 does not mention this report. Rather, this letter shows that the father had formed the view that because the police rang him on 24 February 2020 and Dr AA makes no mention of any incident between the mother and Mr J on that date, the mother was not being honest with Dr AA. This may or may not be true, but of itself this does not provide a basis for the father to unilaterally decide the mother was in breach of the Court Orders. Nor did it relieve the father of his own obligations to comply with Court Orders. If the mother was having problems with Mr J, this does not self-evidently demonstrate that the father was entitled to impede the commencement of supervised time with the mother. Time which is supervised has inherent protections for the children.
I am satisfied that the mother has established a case to answer in respect of the contraventions of Orders 15(c). Her allegations of contravention all assert the father contravened the Orders "without reasonable excuse". It is open to the father to seek to establish a reasonable excuse in respect of the contravention of Order 15(c). The evidence already discussed may suggest the father had a reasonable excuse. At present I express no view.
I note here that the mother makes allegations of eight further contraventions of Order 16. Each of these allegations is to the effect that in breach of Order 16 the father without reasonable excuse refused to allow the children to spend time with the mother on specific dates, including 10 May 2020 which was Mother’s Day and … 2020 which was the week after the birthday of Y.
I find there is no case to answer in respect of these eight alleged contraventions for the simple reason that the father’s contravention of Order 15(c) meant that no regime for supervised time on specific dates had been put in place with MM Services. For this to happen, MM Services had to agree, and no such agreement had been reached. The mother seems to have assumed the dates specified in her contravention application should have been the dates upon which she was to spend supervised time with the children. But no start date for the three month period in Order 16 had been settled upon. I do not see it is possible, therefore, to make a finding of contraventions on a specific date.
However, it was potentially open for her to allege a general breach of Order 16, in that the father did not “take all necessary steps to arrange for the children to spend time with the mother for a period of three months, each fortnight for two hours supervised by the nominated supervision service”. But that allegation was not made.
I note in this regard that the mother’s allegations highlight the consequences of the father’s failure to comply with order 15(c), in terms, at least, of possible time lost with the mother. This observation of course is made subject to any evidence or arguments of the father about reasonable excuse.
The Final Orders provided for a progression from supervised to unsupervised time between the children and the mother, within a time frame of no less than 3 months from the date of the Final Orders. The Final Orders contemplated that, if things went smoothly, the children may begin to have contact with the mother from early 2020. But it has now been 18 months since the children have seen the mother. While this may have distressed the mother, the paramount consideration remains what is in the best interests of the children
While I have no concluded view, it may no longer be possible for the outcomes intended by the Final Orders to be achieved, at least in relation to the children spending time with the mother. For example, after a period of 18 months, the best interests of the children may require the Court to revisit the manner in which they are reintroduced to their mother, if appropriate.
This raises for consideration the most suitable way forward. It will be necessary for the father to be given an opportunity to file and serve any evidence or submissions upon which he proposes to rely to establish a defence of reasonable excuse. I will make directions for this to happen.
It may be that the parties by agreement, or the Court, should consider variation of the Final Orders, for example, pursuant to s 70NBA of Division 13A, or under Division 6, of Part VII of the Act. I note that the power to vary the Final Orders pursuant to s 70NBA(1) may be exercised whether or not the Court finds a contravention has been committed. I observe, without expressing a view, that it may be desirable for some further expert assessment involving the children, such as a Child Inclusive Conference.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 1 June 2021
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