MONACO and DANIELS

[2016] FCWA 35

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: MONACO and DANIELS [2016] FCWA 35

CORAM: WALTERS J

HEARD: 13, 14, 15, 20, AND 22 NOVEMBER 2013, 28, 29 AND 30 MAY 2015 AND 3 JUNE 2015

DELIVERED : 27 MAY 2016 – IN CHAMBERS

FILE NO/S: PTW 292 of 2008

BETWEEN: MR MONACO

Applicant

AND

MS DANIELS
First Respondent

AND

MR HIGGS
Second Respondent

Catchwords:

FAMILY LAW – Practice and procedure – single issue in dispute – where the mother alleges a breach of a Violence Restraining Order – where the father disputes alleged breach – where parenting orders allow the father to contact the mother in an emergency situation – where father maintains that he contacted the mother in an emergency situation – where ruling is sought regarding interpretation of parenting orders – meaning of ‘emergency’

Legislation:

Family Law Act 1975 (Cth)
Restraining Orders Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms K Everett

First Respondent : Mr W Meredith

Second Respondent : Self Represented Litigant

Independent Children's Lawyer : Mr J Pacy

Solicitors:

Applicant: W L & K J Everett

First Respondent : William Llewellyn Meredith

Second Respondent :

Independent Children's Lawyer : Pacy Solicitors

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction and overview

1[Mr Monaco] and [Ms Daniels] commenced a relationship in or about mid-2003. They married [in] 2004. There is one child of the marriage: [Child A]. Child A was born [in] 2006.

2Mr Monaco and Ms Daniels finally separated in April 2011. Their relationship was a volatile one.

3Ms Daniels has three other children: [Child B], [Child C] and [Child D]. Child B was born in 1996. His father is [Mr Higgs]. Child C and Child D were born in 2000 and 2002 respectively. Their father is [Mr Maxwell].

4Mr Monaco, Ms Daniels, Mr Higgs and Mr Maxwell are all involved in consolidated proceedings in this Court. The proceedings relate to a dispute about parenting arrangements for Child C, Child D and Child A. They also relate to financial disputes between Ms Daniels and Mr Higgs (on the one hand) and Ms Daniels and Mr Monaco (on the other).

5Child B is an adult. He is not directly involved in any of the disputes currently before this Court.

6An independent children's lawyer has been appointed to represent the interests of Child C, Child D and Child A.

7At all relevant times until October 2015, Child C, Child D and Child A lived with Ms Daniels. Since that time, Child C and Child D have lived with Mr Maxwell (or, more accurately, with Mr Maxwell's mother and stepfather) and Child A has lived with Mr Monaco. The children's living arrangements altered following an incident which occurred in Ms Daniels' home on or about 5 October 2015. The incident involved a physical altercation between Ms Daniels and Child C and Child D, although Child A was present at the time.

8Following the altercation, one of the children contacted the police. Police officers then attended Ms Daniels’ home and removed Child C, Child D and Child A from Ms Daniels’ care. All three children were placed with Mr Maxwell. The Department of Child Protection and Family Support ("the Department") was involved in the process.

9According to a memorandum prepared by a Child Protection Consultant with the Department – which memorandum is dated 15 October 2015 – Ms Daniels "presented as 'withdrawn, depressed, physically shaking and was showing signs of not coping with life'" at the time the children were removed from her care. She was conveyed to a local hospital for assessment.

10The memorandum continues:

On 8 October 2015 a Safety and Well-being Assessment was opened in relation to concerns for [Child A] as a consequence of [Ms Daniels’] deteriorating mental health and that [Child A] is being emotionally and/or physically harmed in the care of her mother. During the assessment, it was alleged that [Ms Daniels] "belts" the children and [an earlier] safety plan that had been put in place for the children (enabling them to leave the house or phone for help) had been breached.

11Child A remained in Mr Maxwell's care, with Child C and Child D, for a few days. Mr Maxwell then advised the Department that he was "not comfortable keeping Child A with him".1 As a result, the Department elected to return Child A to Ms Daniels’ care. Departmental officers did not contact Mr Monaco before adopting this course of action – seemingly because Ms Daniels had informed them that there was a violence restraining order protecting both her and Child A from Mr Monaco. It is clear from the terms of the violence restraining order, however, that Child A was only covered by the order while she was at school.

12A Child Protection Worker with the Department, Ms Ellis, later contacted Mr Monaco and informed him that the Department "had significant concerns for his daughter Child A being in the care of [Ms Daniels]".2 He was advised to approach this Court to seek orders placing Child A in his care.

13Mr Monaco then filed an application in a case seeking orders that Child A live with him.

14The application in a case came on for hearing before me on 16 October 2015. Ms K Everett appeared for Mr Monaco, Ms Daniels appeared in person and Ms J Johnston appeared as the independent children's lawyer. Ms Ellis was also present during the hearing.

15After hearing submissions from all relevant parties, and after taking oral evidence from Ms Ellis, I made a number of orders. They include:

1Until further order, all extant parenting orders be suspended.

2Until further order –

(a)[Child A] live with the father; and

(b)the mother neither spend time with nor have face-to-face contact with [Child A].

3The father be at liberty to attend [Child A’s] school at any time.

4Until further order, the mother be restrained by injunction from removing [Child A] from her current school, and from any school attended by [Child A] from time to time.

5The mother have telephone contact with [Child A] on Wednesday and Sunday evenings at about 6:15 pm, with the mother to initiate the telephone calls.

6The father must ensure that [Child A] has a mobile telephone available to her to enable the mother to initiate the telephone calls referred to in the preceding paragraph.

7The father must authorise and permit his solicitors keep the mother advised, at all times, of the relevant telephone number for the mobile telephone referred to in the previous paragraph.

8The mother must inform the father, and keep him informed, of her email address, mobile telephone number and residential address.

9The father must inform the mother, and keep her informed, of his email address, mobile telephone number and residential address via his solicitors.

10These are orders to which section 68Q of the Family Law Act 1975 applies and to the extent that these orders are inconsistent with the Family Violence Order made in the case between the parties on 31 October 2012 in the Magistrates Court at Perth being Complaint No. MC/CIV/PER/RO/2038/2011, or any subsequent Violence Restraining Order, these orders shall prevail and the Family Violence Order or orders is/are invalid to the extent of the inconsistency.

11The Deputy Registrar, Magistrates Court, 150 Terrace Road Perth cause a sealed copy of these orders to be forwarded to the Commissioner of Police, the Deputy Registrar, Magistrates Court at Perth and the Chief Executive Officer of [the Department].

12Leave is granted to the parties to supply a copy of these orders to [Child A’s] school and such other persons or entities as considered appropriate.

13The independent children’s lawyer have leave to liaise with [Child A’s] school and [the Department] to assess and discuss [Child A’s] welfare and best interests.

16The orders made on 16 October 2015 included a notation to the effect that the Department is aware of the orders and has no discomfort with them.

17For his part, Mr Maxwell commenced proceedings in this Court on 15 October 2015. He sought orders that Child C and Child D live with him and that they spend time with Ms Daniels "as per their wishes". In his affidavit sworn 13 October 2015 in support of his application, he said (among other things):

(a)He is Ms Daniels’ former de facto partner, having been in a relationship with her for approximately six months in 1999.

(b) He lives with his mother and stepfather who are aged 63 and 66 respectively.

(c)He works 60 hours per week on a fly in fly out (FIFO) basis and is in Perth "on break every three weeks". The children stay with him every weekend that he is home in Perth. They also stay with him on school holidays (when he is "able to get time off work and remain in Perth").

(d)As outlined above, Child C and Child D had been in his care since the incident in Ms Daniels’ home on 5 October 2015.

(e) Until that time, Ms Daniels had been the children's primary carer.

(f)Child C attends [School A] and is in Year 9. She is a day student. Child D attends [School C]. He boards at the college during the week and returns home on weekends.3

(g)Child C and Child D have expressed their desire to live permanently with Mr Maxwell and his mother and stepfather.

18On 20 October 2015, orders were made that, until further order, Child C and Child D live with Mr Maxwell and spend time with Ms Daniels "as per their wishes". Interim orders were also made to the effect that the children are to have liberal telephone contact with Ms Daniels "as per their wishes".

19Ms Daniels strongly opposes the parenting orders sought by Mr Maxwell and Mr Monaco in relation to Child C, Child D and Child A. On all or almost all occasions that the proceedings have come before the Court, she has argued or sought to argue that all three children should be returned to her care.

20On 18 December 2015, consent orders were made restraining Mr Maxwell and Ms Daniels from discussing the Court proceedings with or in the presence or hearing of Child C and Child D. Certain procedural orders were also made on that day. The Court also received a report from Ms Ellis dated 17 December 2015. The report contains the following:

… This case is still in the investigation phase as we [are] still assessing information pertaining to [Ms Daniels’] mental health.

Based on the information we have to date, … our current recommendation in regards to contact between [Ms Daniels] and her children is that it is to be supervised, preferably by an agency. This contact should only occur if the children are agreeable to it.

I have recently met with [Child C] and [Child D]…, and both have expressed to me that they currently do not wish to see [Ms Daniels]. [Child D] and [Child C] also expressed their wish to remain in the care of their father, [Mr Maxwell].

21In a memorandum dated 11 January 2016, the Department's consultant affiliated with this Court wrote:

… All three children currently reside with their respective fathers as per Family Court temporary orders. This is due to concerns that [[Ms Daniels]] has physically harmed her children, possibly due to mis-managed mental health issues. The Department will likely be substantiating physical harm, due to disclosures made in [Child A] and [Child C’s] Child Assessment Interviews. [Child D] is yet to be interviewed…

22On 8 February 2016, orders were made for the parties in the proceedings between Mr Maxwell and Ms Daniels to attend a case assessment conference on 12 May 2016. On 24 February 2016, orders were made for the interests of Child C and Child D to be independently represented. As explained above, the same independent children's lawyer now represents all three children.

23On 22 March 2016, orders were made consolidating the two sets of proceedings – being the proceedings involving Mr Monaco, Ms Daniels and Mr Higgs (on the one hand) and the proceedings involving Mr Maxwell and Ms Daniels (on the other).

24As indicated above, the case assessment conference was held on 12 May 2016. Ms Daniels and Mr Maxwell attended, as did the independent children's lawyer. The conference was conducted by a family consultant. The conference memorandum contains the following:

Both [[Ms Daniels]] and [[Mr Maxwell]] reported having contact with [the Department]. [[Mr Maxwell]] said his contact related to concerns for the children in [[Ms Daniels’]] care, while [[Ms Daniels]] said she is in the process of addressing concerns with how the Department has conducted itself in relation to her family.

[[Ms Daniels]] said:

I made a Tier 2 complaint and there's been some serious reflection in the [Suburb M Office] and they said it [her matter before the Court] shouldn't be in the Family Court and it's very unfortunate I couldn't turn back time and [the Department] will be making submissions [in relation to the Family Court proceedings].

[[Ms Daniels]] also said:

I think a lot of things will come to light [in relation to the Department's actions] and I have reported an officer to the CCC for perjury because I have evidence she lied on the stand.

[[Ms Daniels]] also noted Departmental Officers have told her "the complaint" she has made "is very worthwhile".

25Turning to the events which gave rise to the children being removed from Ms Daniels’ care, the family consultant wrote:

[[Ms Daniels]] described recent events whereby the children came to be living with their fathers in part as an occasion "when I cried out for help" in an environment which featured "a whole heap of lack of support from all the fathers" in this matter. She also said "I had my father living with me" at the time, "and he needed lots of support and I was studying Law" and facilitating the children attending "lots of appointments" and "catering to everybody's needs" generally.

[[Ms Daniels]] also said "the catalyst for change was when [Child B] reported sexual abuse to Police". She said "I've never seen my child lose himself" as he appeared to do "and they (the Police) offered no support and because he is 19, the parents couldn't be involved" in the investigation into his claims. She said "when he came home, he was very angry" and began to take his anger out on her. [[Ms Daniels]] said initially "[Child C] and [Child D] weren't happy with how [Child B] was talking to me" but "then it turned the other way" and "they started seeing me as the bad guy and everything was my fault".

[[Ms Daniels]] said things came to a head after she had been approaching [Child B] for some time with concerns in relation to his ongoing non-attendance at work and University. She said instead of being "quite a happy-go-lucky young man", "he'd get upset and defensive with me whenever I brought up Uni".

She said because of the dynamics in the home, "the whole house is on egg shells" and "no one is happy" and she decided to approach [Child B] to discuss the issues with him. She said "I stood in his doorway" and because "nothing was moving forward" and "I need things to change, I said to him 'You can't keep going like this'". [[Ms Daniels]] said she told [Child B] he was being "nasty and angry every day" and "you can't stay here" unless things change.

[[Ms Daniels]] said "I was going to be supportive" when [Child B] began "screaming at me and throwing things" and "[Child D] came flying out his door and he charged at me and pushed me into the door" and was "yelling at me 'Leave my brother alone' and then [Child C] came out". According to [[Ms Daniels]], [Child C] had been "trying to become the parent in the house" and "become more dominant" and because she had been told to be "more assertive, she took it and ran with it and she was trying to parent".

[[Ms Daniels]] said [Child C] tried to intervene and said "Mum, go back to your room" and "I said 'no' and I was having an argument with [Child C] and these two were yelling at me like I was having a go at their brother and then they all started pushing me up the hallway". She said "it was the wrong decision and I probably should have walked away" but "I pushed back on all three of them and realised I couldn't push back on three big teenage children and I went back" into the kitchen/family room and "smashed" a plate collection "on the ground".

[[Ms Daniels]] suggested while the events of the day "may have scared" the children, the events were "not what they said occurred".

Later [Mr Maxwell] said while both children have said "we want Mum to get better", they are currently choosing to have no contact with her. [He added that] [Child C] "has been having nightmares" about what occurred.

26Ms Daniels told the family consultant that there had been no family violence in her relationship with Mr Maxwell (except "in the way of abandonment"). In relation to Mr Monaco, however, Ms Daniels "made a number of very concerning allegations in relation to violence directed not only towards herself, but also towards the children". These allegations are consistent with allegations made by Ms Daniels against Mr Monaco throughout the proceedings relating to Child A and the property settlement proceedings. As indicated earlier, Mr Monaco was not present when these comments were made to the family consultant.

27The consolidated proceedings came before me on 17 May 2016. Ms Brown appeared for Mr Monaco, Mr Barry appeared for Mr Maxwell, Ms Daniels appeared without legal representation and Ms Johnston appeared as the independent children's lawyer. Mr Higgs did not appear.

28A number of matters were dealt with on that day, including an application by Ms Daniels to have all three children returned to her care on an interim basis.

29During the course of her submissions, Ms Daniels reiterated the comments she had made to the family consultant to the effect that the Department had had second thoughts in relation to the actions it had taken in removing the children from her care. She suggested forcefully that the Department was likely to be supportive of her application for the return of the children.

30The proceedings were stood down to enable the independent children's lawyer to liaise with the Department's Child Protection Consultant based at the Court – to ascertain, among other things, whether the Department was indeed having second thoughts as asserted by Ms Daniels. The Child Protection Consultant contacted the Department and obtained its advice. She then prepared a memorandum which was provided to the Court, and then to the parties. The memorandum contains the following:

The Department substantiated emotional and physical harm in relation to all the children and found the mother responsible for causing the children harm.

The Police investigation in relation to all three children is still ongoing. The Department will notify the Court of the outcome of the Police investigation as soon as it has been concluded.

It is the Department's view that any contact between [Child A] and the mother should be strictly supervised by an authorised agency.

Once the Police investigation has been completed the Department intends to close the file.

The Department has no concern about the children [Child D], [Child C] and [Child A] in the care of their respective fathers.

The Department would encourage contact between the children as agreed by the respective fathers.

31Clearly, the Department's view was very different from what Ms Daniels had indicated that it would be.

32Orders were eventually made (by consent) appointing Dr Melanie Newton, Clinical Psychologist, as the single expert in relation to the parenting proceedings (as they relate to all three children). At the same time, Ms Daniels’ application for the return of the children to her care on an interim basis was dismissed. The following orders were also made:

14[[Mr Monaco]] and [[Mr Maxwel]] must sign all such documents and do all such acts and things to cause the children, [Child C], [Child D] and [Child A] to spend not less than five hours in each other's presence and on not less than one occasion in each three-week period…

15[Mr Maxwell] and his servants and agents be restrained by injunction from causing or permitting [Mr Monaco] to enter into or remain in the presence of [Child C] and [Child D] (or either of them) at any time – unless [Mr Maxwell] or a responsible adult of [Mr Maxwell's] choosing is also present.

16[Mr Monaco] be restrained by injunction from entering into or remaining in the presence of [Child C] and [Child D] (or either of them) at any time – unless [Mr Maxwell] or a responsible adult of [Mr Maxwell's] choosing is also present.

33A notation was made to the effect that Mr Monaco did not oppose, but did not admit the necessity for, paragraph 16 of the orders.

34Further notations were made as follows:

19Having regard to the short report received from [the Department] and the Court's dismissal of [Ms Daniels’] application for return of the children to her care on an interim basis, the proceedings were stood down to enable the parties to discuss proposals for enabling [Ms Daniels] to have supervised contact with the children. When the matter was recalled, the Court was advised that [Ms Daniels] had left the Court precincts without involving herself in discussions relating to supervised contact.

20[Ms Daniels] was then called… but there was no response to the call. Efforts were made to locate [Ms Daniels] within the precincts of the Court, and to contact her by telephone. These efforts were unsuccessful.

35At the present time, therefore, Child C and Child D remain in Mr Maxwell's care (or, more accurately, in the primary care of Mr Maxwell's mother and stepfather) and Child A remains in Mr Monaco's care. The children are having some contact with each other, but Ms Daniels is not having face-to-face contact with any of them. That is likely to change if supervised contact arrangements can be put in place.

Trial in the proceedings involving Mr Monaco, Ms Daniels, Mr Higgs and the ICL

36As explained above, the proceedings between Mr Maxwell and Ms Daniels relating to Child C and Child D commenced well after the proceedings involving Mr Monaco, Ms Daniels and Mr Higgs had begun.

37The trial involving Mr Monaco, Ms Daniels, Mr Higgs and the (then) independent children's lawyer, Mr Pacy, commenced on 13 November 2013. It continued on 14, 15, 20, 21 and 22 November 2013, 28, 29 and 30 May and 3 June 2014. At the conclusion of the hearing, I reserved my decision. The case was reopened after the commencement of the proceedings between Mr Maxwell and Ms Daniels. As I have said, the two sets of parenting proceedings have now been consolidated and are awaiting the preparation of a single expert report.

38During the trial in 2013 and 2014, an issue arose regarding an alleged breach of a violence restraining order by Mr Monaco. There can be no doubt that the breach (if it occurred) is minor, but Mr Monaco is fearful of the consequences if the breach is proved. Thus, and notwithstanding the fact that the parenting proceedings remain on foot, he has sought that the Court rule on certain issues germane to the question of whether a breach of the violence restraining order has occurred. These Reasons comprise that ruling.

39At the outset, I note that this Court has power to determine a distinct issue (separate from the body of the trial) under both the Family Law Act 1975 (Cth) and the Family Law Rules 2004 (Cth). Under r 1.06 of the Family Law Rules 2004 (Cth), which is designed to facilitate and promote the purpose of the Rules (that purpose being to ensure proceedings are dealt with in as just and timely manner as is possible in all the circumstances) a judicial officer is entitled to separately dispose of any issue at any time. I refer, as well, to Division 12A of the Family Law Act 1975 (Cth) and, in particular, to s 69ZR(1). This section directs the way in which a judicial officer is to manage child related proceedings, and allows the Court to make any finding or order, or determine any matter that may be in dispute between the parties, at any time.

40Given that the proceedings have been before me for an extended period of time, I have had ample opportunity to hear and observe Mr Monaco and Ms Daniels. I am conscious of the fact that the parenting proceedings remain on foot, but it is fair to say that neither of them could reasonably be described as a reliable witness. I once described a litigant in a case before me as being like "a coiled spring". Regrettably, the same description applies to both Mr Monaco and Ms Daniels – the former largely because of his volatility and the latter predominantly because of her resentment, unpredictability and sharp tongue (although both demonstrated that they could be impatient, volatile and argumentative). I accept that litigation is clearly a stressful experience for a litigant (and particularly a litigant without legal representation) but, whilst nervousness and anxiety on the part of Mr Monaco and Ms Daniels were to be expected during the course of giving evidence, their conduct and demeanour in the courtroom – and in the witness box – could not fairly be regarded as wholly (or even substantially) attributable to such considerations. Both Mr Monaco and Ms Daniels presented as wary and guarded while giving their evidence. They were rarely willing to make concessions when it was appropriate for them to do so. Each demonstrated by their evidence that they were self-centred or self-absorbed, and their ill feeling towards each other was palpable. And in the case of Ms Daniels, her lack of respect for the Court, and for its procedures, was undisguised.

Terminology and interpretation

41In these Reasons, and unless otherwise indicated:

(a) all statements of fact comprise findings of fact;

(b)I have not drawn a distinction between proceedings or events before a family law magistrate and proceedings or events in the Family Court of Western Australia;

(c)although the law now refers to a child "spending time" with a person with whom the child does not live, I have used the obsolete term "contact" from time to time in these Reasons – because it is both more convenient and less grammatically challenging to do so;

(d)I have referred to all affidavits filed by or on behalf of the parties as being "sworn", even if they were affirmed by their deponents (and I note that, in a slightly different context, s 5 of the Interpretation Act 1984 (WA) provides among other things that "to swear" includes "to affirm"); and

(e)unless otherwise indicated, references to legislation are references to the Family Law Act 1975 (Cth) – although, when necessary, I have referred to this enactment as "the Act" or the "FLA".

Violence Restraining Order made 21 November 2011 (PE 2038/11)

42On 21 November 2011, a Violence Restraining Order (No. PE 2038/11) was made in the Magistrates Court, Perth. I shall refer to this order as "the VRO". The VRO was made pursuant to the provisions of the Restraining Orders Act 1997 (WA) ("the ROA"). The "Person Protected" by the order was Ms Daniels. The "Person who is bound by this order" was Mr Monaco.

43The VRO was made by consent. According to Mr Monaco, he consented to it "on a no admissions basis".4 The VRO was expressed to be a final order, to expire on 23 September 2013. It was also expressed to be "for the benefit of" Ms Daniels.

44The relevant provisions of the VRO were as follows:

SAVE AND EXCEPT

…

as provided for in a "Family Order" as defined in [the ROA]…

THE PERSON WHO IS BOUND SHALL NOT:

•communicate or attempt to communicate by whatever means with the person protected;

•enter or remain upon [the property occupied by [Ms Daniels]] or any other premises where the person protected lives or works or be within 50 m of the nearest external boundary of such premises;

•approach within 10 m of the person protected; or

•cause or allow any other person to engage in conduct of the type referred to in any of the preceding paragraphs of this order on their behalf.

Pursuant to s 68 of [the ROA] this order extends to: [CHILD A] DOB [IN] 2006 at [School A].

45Section 68 of the ROA is as follows:

Orders may be extended to apply to other people

1When making a restraining order a court may extend the order to operate for the benefit of a person named in the order in addition to the person protected by the order.

2If an order is so extended the provisions of this Act apply to the named person as if that person were the person protected by the order.

Alleged breach of VRO

46On 15 August 2013, Ms Daniels made a statement to the police regarding an incident which occurred on 18 May 2013.5 The statement contains the following:

9Part of the terms and conditions [of the VRO] was that [Mr Monaco] was not allowed to communicate or attempt to communicate with me by any means whatsoever including SMS or text message or any other electronic means.

10There is also a Family Court order in place, order number PTW 292/2008.

11…

12On 18 May 2013, I was at the front of the [Suburb M Police Station] at about 10.20 a.m. I was waiting for [[Mr Monaco]] to arrive so I could hand over [Child A] as per the family court order.

13At 10.25 a.m. I received a text message from [[Mr Monaco]] on [xxxx xxx xxx].

14My telephone number is [xxxx xxx xxx] which I received the text message on.

15The text message I received from [[Mr Monaco]] on this number stated "10am!!"

16I replied "Do not text me I refused to allow you to text me so don't do it again [Child D] has had an asthma attack because of all the smoke we're on our way".

17He replied "You will need to drop her to me at Woolworths [at the Local Shopping Centre]".

18I replied "No, I don't feel safe doing that and court orders says [Suburb M Police Station], this is an exceptional circumstances and is the only time that you are allowed to use text to communicate with me"

19[[Mr Monaco]] did not reply after this.

20At no stage have I given permission for [[Mr Monaco]] to contact me on my mobile phone or in person.

21At 11.40 [[Mr Monaco]] arrived at the Police Station and I handed [Child A] over to him, he did not speak to me I waited by my car, he then left in his car.

47I shall refer to this incident as "the text message incident".

48The order referred to in Ms Daniels’ statement at [10] was an order made in this Court on 9 May 2013. It contains the following:

1… [[Mr Monaco]] will spend time with [[Child A]] each alternate weekend from Saturday at 10.00 a.m. until Sunday at 4.30 p.m. commencing Saturday 18 May 2013.

2The above order is subject to the paternal grandparents being present wherever possible during overnight visits.

3…

4Handovers shall take place outside the [Suburb M Police Station] and [[Mr Monaco] and [Ms Daniels]] each be restrained and an injunction is hereby granted restraining them from approaching one another on handover occasions and [[Ms Daniels]] will have leave to have the following people present during handovers to facilitate handovers:

a) the maternal grandfather;

b) …

5Until further order… [Child A] shall have telephone contact with [Mr Monaco] on Wednesday and Sunday evenings at about 7.00 p.m., with [Mr Monaco] to initiate the telephone call on Wednesdays and [[Ms Daniels]] to initiate the telephone call on Sundays.

6[[Ms Daniels]] will have leave to provide [Child A] with a mobile telephone and [[Mr Monaco]] shall permit [Child A] to use that mobile telephone to telephone [[Ms Daniels]] in accordance with [Child A’s] wishes.

7…

9The parties shall only communicate with each other in relation to issues concerning [Child A’s] welfare by writing either in a communication book to be provided by [[Ms Daniels]] or by email and in the event of an emergency, by SMS text message.

49I shall refer to these orders as "the contact orders".

Mr Monaco's evidence

50In his affidavit sworn 10 May 2012 at [61], Mr Monaco said:

[[Ms Daniels]] says that I am violent and she has suffered domestic violence. I deny this. The opposite is true, [[Ms Daniels]] has hit me, throwing things at me, broken things, verbally abused me, and I have suffered constant emotional abuse from her.

51In broad terms, Mr Monaco asserts that Ms Daniels is violent, manipulative, controlling, vindictive and deceitful. He also asserts that she is unpredictable and mentally and emotionally unstable.6

52Mr Monaco described the text message incident in his affidavit sworn 24 June 2013.7 He said:

On 18 May 2013 I arrived at the [Suburb M Police Station] at 9.45 a.m. for the scheduled handover at 10 a.m. At about 10.23 a.m. I received a call from [[Ms Daniels’]] phone number and I let it go through to my voicemail due to the consent VRO currently in place, which means that I can't answer phone calls that emanate from [[Ms Daniels’]] mobile phone. [[Ms Daniels]] is aware of this. Had I answered the phone, she would have rung the police and accused me of breaching the VRO.

The message was from [Child A] asking what time she was supposed to be there. I sent a text message in reply saying "10am!!" A few minutes later I received another phone call from [[Ms Daniels’]] number and again I let it go through to my voicemail. The message was again from [Child A], saying she was on the way.

As [[Ms Daniels’]] home is a 20 minute drive from the [Suburb M Police Station], I decided to quickly do some shopping at the [Local Shopping Centre] which is approximately 200 m from the [Suburb M Police Station]. At about 10.50 a.m. I received a text message from [[Ms Daniels]] saying that she was at the [Suburb M Police Station] and as I had not quite finished my shopping, I asked [[Ms Daniels]] if handover could occur at the Local Shopping Centre instead. I don't think this was unfair, as it was [[Ms Daniels]] who had breached the Court orders by being late

[[Ms Daniels]] by text refused to allow handover to occur at the Local Shopping Centre, so I returned to the [Suburb M Police Station] where handover occurred at about 11.00 a.m.

53Copies of the text message exchange on 18 May 2013 are annexed to Mr Monaco's affidavit sworn 24 June 2013.8 The exchange is as follows:

[Mr Monaco]:	10:25 a.m.	10am!!
[Ms Daniels]:	NK	Do not text me I refuse to allow you to text me so don't do it again [Child D] has had an asthma attack because of all the smoke we're on our way
[Mr Monaco]:	NK	You will need to drop her to me at Woolworths [at the Local Shopping Centre]
[Ms Daniels]:	NK	No – I don't feel – Safe doing that – And court orders says [Suburb M police station] – This is an exceptional circumstances and is the only time that you are allowed to use text to communicate with me
[Ms Daniels]:	10:51 a.m.	[Child A] is waiting
[Mr Monaco]:	NK	Where??
[Ms Daniels]:	NK	At [Suburb M Police Station]. We have been here since 10.28
[Ms Daniels]:	11:00 a.m.	[Child D] is ill with Asthma and I need to get back to him. [Child A] also has a party she was hoping you would take her to. I apologise for being late but these are exceptional circumstances – I have a medical certificate. [Child A] is upset waiting for you.

54At approximately 5 p.m. on Saturday, 24 August 2013, Mr Monaco was contacted by the police about a breach of the VRO. He refused to speak with the police officer who made contact with him. From comments made by the police officer, however, he was concerned that he would be arrested that evening. He then made a number of attempts to contact police to obtain more details of the alleged breach and, at the same time, to complain about the behaviour of the police officer who had contacted him and about Ms Daniels "giving misleading information to the police".

55At approximately 9 p.m., some eight police officers attended at Mr Monaco's home. Mr Monaco was uncooperative. He indicated that he was intimidated and "feared for his life".9 Eventually he left the house and "yelled at (the police) a bit", and was rude to them. Not surprisingly, he was apprehended and handcuffed. He was taken to the Perth Watch House, where he was refused bail. He remained in custody until he appeared in the [Local Magistrates Court] on Monday, 26 August 2013. It was only when he was before the magistrate that he was made aware of the nature of the alleged breach of the VRO, and that it related to the text message incident.

56Exhibit H3 tendered on 15 November 2013 comprises a WA Police Incident Report relating to the period from 15 to 24 August 2013. As is apparent from Ms Daniels’ statement to the Police, her complaint about the text message incident was made on 15 August 2013. It seems that the Police were initially content to treat the matter as a "technical" or "minor" breach of the VRO. On 21 August 2013, however, Ms Daniels contacted the Police to request an "update". She then advised the Police that –

… she will not be allowing her daughter [Child A] to visit her father this weekend as she fears for her safety. This conflicts a family Court order. [[Ms Daniels] was] advised that Police are not able to give her advice re-family court's ruling and that she should liaise with her solicitor…

57The Police then made enquiries to endeavour to locate Mr Monaco's current address. Eventually, Ms Daniels gave the Police Mr Monaco's address at 5.30 p.m. on 24 August 2013. In doing so, she breached the terms of an order of this Court made on 2 July 2013. Paragraphs 3 and 4 of those orders are as follows:

3[[Mr Monaco]] shall forthwith disclose to ([Ms Daniels]] the address where he will spend time with [[Child A]].

4[[Ms Daniels]] be restrained and an injunction is hereby granted restraining her from:

(a) …

(b) …

(c)causing any third party, Police or State Authority to attend at the address except in the event of an emergency involving [[Child A]].

58Ms Daniels conceded that she breached the above injunction and said that she is "prepared to be punished for this": see Ms Daniels’ affidavit sworn 13 September 2013 at [21].

59Police contacted Mr Monaco by telephone between 5.30 p.m. and 6.18 p.m. on 24 August 2013. The Incident Report records the following:

Notification… that [[Mr Monaco]] has made threats towards Police as a result of case officer alerting [[Mr Monaco]] in relation to Breach of VRO complaint, attempting to arrange time/place to deal with the matter.

ALERT PLACED ON [[MR MONACO]] AS RESULT: ***Has stated will kill Police if confronted extreme caution*** Has called (TPC) both [Suburb M Police Station] and VKI today (enraged), stating that if he is approached by Police he will disarm officers and kill them with their own firearms…

60It was in these circumstances, and after Ms Daniels had contacted Police again to say that she had "seen a vehicle with no headlights on drive past her property several times", that the Police went to Mr Monaco's house and the events occurred which culminated in Mr Monaco being arrested.

61Mr Monaco summarised his thoughts about these events in his affidavit sworn 27 August 2013 at [10]:

It is incomprehensible that the police sent about 8 offices to my home to arrest me on Saturday night, all on the say-so of [[Ms Daniels]] – when it now transpires that the only criminality I am accused of is sending a couple of innocuous text messages in May this year about a late handover. What it demonstrates is that [Ms Daniels] is very believable and persuasive, that she is easily able to manipulate police officers who should have known better, and that she is able to manufacture a very serious incident out of almost "nothing".

62There can be no doubt that Mr Monaco's uncooperative approach to the attempts made by Police to discuss the issue with him over the telephone, and his unnecessarily quarrelsome and ultimately belligerent behaviour when officers attended at his home, made it almost inevitable that the comparatively benign circumstances of the alleged breach would be obscured by his later indignation and petulant behaviour. To a large extent, his arrest was a self-inflicted wound. I do not accept that Ms Daniels engineered the dispatch of some eight police officers to Mr Monaco's home on a Saturday night. That, it must be said, was Mr Monaco's own doing. However, that Ms Daniels saw fit to allege that the text message incident amounted to a breach of the VRO is difficult to comprehend. Further, and given that her complaint was made some three months after the text message incident, it amounted to a tardy, disproportionate and grimly spiteful act. Even if the complaint had been made in a timely fashion, the other descriptors would still apply with equal force.

Ms Daniels’ evidence

63Put shortly, Ms Daniels’ view of Mr Monaco is similar to his view of her. She regards him as an aggressive and dangerous man, who has no respect for her "right to live a safe and abusive-free life"; nor does he respect the Courts or court orders. She says that he has denied or minimised his acts of domestic abuse towards her and the children. In her opinion, he is "a monster".10

64In relation to the text message incident, Ms Daniels denies that she tried initially to contact Mr Monaco. She said in her affidavit sworn 13 September 2013 at [10]:

… [Child A] called her father from the back seat of the car using my phone to let him know we were running late. I didn't think it would be a problem for [Child A] to call him considering the call was made by her during the allowed contact time under the Family Court orders. Mr Monaco didn't answer both times and [Child A] left him two messages and this is when he texted me.

65In a communication book maintained by Mr Monaco and Ms Daniels at the time, Ms Daniels wrote the following under the heading "Saturday 18^th May":11

Arrived at 10.28. You weren't at the [Suburb M Police Station]. As per the text we are 28 minutes late as [Child D] had an asthma attack. I have a medical certificate. [Child A] has a close friend who is terminally ill. Her friend is having a party. [Child A] wants to go.

I prefer to communicate via this communication book only. No text and no email.

[Child A] tried to call you twice to inform you we were on our way but you didn't answer.

You told me to meet you at Woolworths but I prefer…

66In spite of the comments made in the text messages sent during the text message incident, Ms Daniels denies that an emergency situation adhered. In her affidavit sworn 13 September 2013 at [16], she said:

The day in question when I was late, was not an emergency situation. If it were I would have been unable to do handover of [Child A] at all. [Child D], [Child A’s] brother is always ill with asthma and has behavioural issues… and has always been a high needs child. On the morning he had an asthma attack. I wouldn't leave him until I knew he was stable. [[Mr Monaco]] is not more important than my son's health and well-being. Whilst I respect the court orders, I too am a mother and must balance the needs of my children with all that is expected of me by the Court. I was 23 minutes late in total. I waited for [Child D] to stabilise and for his father [[Mr Maxwell]] to arrive at our home before I left him. Exceptional but not an emergency. I was only 23 minutes late. I did apologise for my lateness.

67She added at [17]:

On the day in question… [Mr Monaco] texted me: 10am!! And then a text demanding that I have handover at [the Local Shopping Centre]. These messages caused me to be fearful and intimidated by [[Mr Monaco]] whilst these messages may seem harmless to any other person in a normal situation, to me these were red flags indicating [[Mr Monaco's]] mood about my being late. He saw a chance to have control and he took it. He knew that the exclamation marks he used would have me worried about my being late making him angry. It did make him angry. He tried to have control again by insisting that I meet him elsewhere even though he knew the court orders strictly said handover was to occur at the [Suburb M Police Station]. He wanted to take me out of a safe zone into a zone where he had control over my safety where I would be fearful.…

The medical certificate

68An issue arose as to the existence of Child D’s medical certificate referred to during the text message incident and in Ms Daniels’ entry in the communication book.

69Through his solicitors, Mr Monaco requested a copy of the medical certificate on 6 June 2013 and 5 July 2013.12 In response to the second request, Ms Daniels emailed Mr Monaco's solicitors at 5.45 p.m. on 5 July 2013. The email contains the following:13

I am happy to provide the medical certificate to the court and will have it on my person at the next hearing if the court wishes to witness it. Since it contained medical information about [Child D] who is not a party to these proceedings I am sure you will understand his right to privacy. I answer to the court and not you. Especially when one is acting like [a] demanding bully.

70A copy of the medical certificate is annexed to Ms Daniels’ affidavit sworn 1 August 2013. The certificate was provided by [Dr C]. It is dated 31 July 2013, approximately 10 weeks after the text message incident (which occurred on 18 May 2013). It reads as follows:

Medical Certificate

This is to certify that [Child D] presented for medical treatment and he was unwell from 17 May 2013 to 18 May 2013 inclusive.

71The medical certificate contains no other details. Clearly, it cannot be the medical certificate to which Ms Daniels referred during the text message incident and in the communication book. Equally clearly, it contained no "medical information about [Child D]". I note, as well, that it can be inferred from the certificate that Child D was seen on 17 and not 18 May 2013.

72During the text message incident, Ms Daniels said that Child D had had an asthma attack "because of all the smoke" and that he was "ill with asthma" and she needed to get back to him. In the communication book she wrote: "… we are 28 minutes late as [Child D] had an asthma attack". In her affidavit sworn 1 August 2013 at [6], she said: "On the 18^th May my third child [Child D] had an asthma attack and we were 24 minutes late". In her affidavit sworn 13 September 2013 at [16], she said that Child D had an asthma attack "on the morning" of 18 May. She added that she was "only 23 minutes late". She also said that she would not leave Child D "until (she) knew he was stable" and that she "waited for [Child D] to stabilise and for his father ([Mr Maxwell]) to arrive at our home before I left him".

73At no stage did Ms Daniels say that Child D was seen by a medical practitioner on 18 May 2013. As indicated above, the medical certificate suggests that he was seen on the previous day.

Mr Monaco's legal advisers communicate with the Police

74In September and October 2013, Mr Monaco's solicitors communicated with the Police with a view to having the VRO breach allegation withdrawn.14 Among other things, they indicated that Mr Monaco "requests that Ms Daniels be charged with making a false complaint".

75The correspondence covers a number of issues, not all of which are directly relevant to the text message incident itself. Relevantly, the following submission is made:

… At the time [[Ms Daniels]] made her complaint to the police about [the text message incident], she was well aware that the circumstances of the text were permitted by the Family Court order. Our client believes that she deliberately misled the police by not showing your officers the relevant Family Court orders; and by not disclosing to your officers that it was she who initiated the first phone call to [Mr Monaco] from her mobile phone which resulted in the "emergency" response text of "10am". Further, her later texts to him on that morning clearly indicate that she herself considered the texts to be of an "emergency" nature as permitted by the Family Court orders.

76The Police's response was as follows:15

From the outset please accept the fact the prosecution agrees the allegations if found to be proven show only a minor breach of VRO has taken place.…

I am of the view this matter will proceed as there is clearly a prima facie breach of VRO. The reasons for this decision are as follows:

In consultation with the victim she is adamant she never instigated the chain of SMS communications between your client and the protected person contrary to the assertions of your client. Rather the protected person, realising she was going to be late for the 10.00 a.m. handover of the child asked the child to contact her father (your client) to alert him of the impending delay in arriving at the [Suburb M Police Station]. I have further been advised that communications between your client and his daughter are permitted and take place regularly. The daughter, having been requested by the protected person to contact your client has run and left to voice messages advising your client that they were going to be late. It is the prosecution's belief the originating SMS "10am!!" Sent by your client is the first SMS in the chain of SMSs and is your client voicing his disapproval of his ex-wife being late as opposed to him responding to any contact the protected person instigated.

Also the message sent by your client informing the protected person to drop the child off at Woolworths instead of the [Suburb M Police Station] is clearly in breach of the terms set out in the Family Law Court Order but more importantly not communications in respect to the welfare of the child and in any event not an emergency event concerning the welfare of the child.

…

… I do concede the matter in the scheme of things is very minor. Based upon this view I believe the protected person has made a complaint in good faith and therefore there is no false complaint as alleged by your client.

Mr Monaco seeks a declaration

77During her submissions to the Court on 3 June 2014, Mr Monaco's solicitor (Ms Everett) sought a declaration to the effect that the text messages sent by Mr Monaco during the text message incident were authorised and permitted by the provisions of the orders of 9 May 2013 and that, to that extent, they could not comprise a breach of the VRO. She argued that this Court should declare what it meant by its own orders.

78I accept that it is not for this Court to determine whether a breach of the VRO has occurred. Nevertheless, I am of the view that the observations made and conclusions reached in these Reasons may be of assistance to the parties.

Discussion

79It is clear that the VRO was in effect at the date of the text message incident.

80It is clear from the VRO that Mr Monaco was not permitted to communicate or attempt to communicate by whatever means with Ms Daniels. Nor was he permitted to "cause or allow any other person" to do so on his behalf. These restrictions also applied to Mr Monaco's contact with Child A, but only while she was at school (School A).

81The restraints referred to above are not absolute: they are subject to certain exceptions. Thus, Mr Monaco can communicate with Ms Daniels "when instructing or acting through" a legal practitioner, and when participating in family dispute resolution as defined in s 51 of the Family Court Act 1997 (WA). He can also communicate with Ms Daniels "for the purpose of attending and participating in" any court proceedings in which he is a party. Finally, he can communicate with Ms Daniels "as provided for in a 'Family Order' as defined in the ROA".

82Section 5 of the ROA is as follows:

5.Term used: family order

(1)A reference in this Act to a family order is a reference to —

(a)a parenting order made under the Family Law Act 1975 of the Commonwealth or the Family Court Act 1997, as is relevant to the case, that deals with —

(i)the person or persons with whom a child is to live; or

(ii)the time a child is to spend with another person or other persons; or

(iii)the communication a child is to have with another person or other persons;

[(b)deleted]

(c)any of the things set out in subsection (2) —

(i)to the extent that the thing deals with the person or persons with whom a child is to live; or

(ii)to the extent that the thing requires or authorises (expressly or impliedly) contact between a child and another person or other persons;

(d)…

(2)The things referred to in subsection (1)(c) are —

(a)a recovery order or any other order (however described) made; or

(b)an injunction granted; or

(c)an undertaking given to, and accepted by, a court; or

(d)a parenting plan, whether registered or not; or

(e)a bond entered into in accordance with an order,

under the Family Law Act 1975 of the Commonwealth or the Family Court Act 1997, as is relevant to the case, or any thing treated, under either of those Acts or the Family Law Reform Act 1995 of the Commonwealth, as an order or thing referred to in subsection (1).

83I have already referred to the orders made in this Court on 9 May 2013 (which I have described as "the contact orders"). Clearly, the contact orders comprise a family order for the purposes of the ROA. They are parenting orders made under the FLA that deal with the time Child A is to spend with Mr Monaco and the communication she is to have with him.

84It follows from the above that, as at 18 May 2013, the VRO was subject to the contact orders.

85The VRO was made before the contact orders were made. Division 11 of Part VII of the FLA is headed "Family Violence". It contains ss 68N, 68P and 68Q, which are as follows:

Division 11—Family violence

68NPurposes of this Division

The purposes of this Division are:

(a)to resolve inconsistencies between:

(i)family violence orders; and

(ii)certain orders, injunctions and arrangements made under this Act that provide for a child to spend time with a person or require or authorise a person to spend time with a child; and

(aa)to ensure that orders, injunctions and arrangements of the kind referred to in subparagraph (a)(ii) do not expose people to family violence; and

(b)to achieve the objects and principles in section 60B.

68PObligations of court making an order or granting an injunction under this Act that is inconsistent with an existing family violence order

(1)This section applies if:

(a)a court:

(i)makes a parenting order that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; or

(ii)makes a recovery order (as defined in section 67Q) or any other order under this Act that expressly or impliedly requires or authorises a person to spend time with a child; or

(iii)grants an injunction under section 68B or 114 that expressly or impliedly requires or authorises a person to spend time with a child; and

(b)the order made or injunction granted is inconsistent with an existing family violence order.

(2)The court must, to the extent to which the order or injunction provides for the child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with the child:

(a)specify in the order or injunction that it is inconsistent with an existing family violence order; and

(b)give a detailed explanation in the order or injunction of how the contact that it provides for is to take place; and

(c)explain (or arrange for someone else to explain) the order or injunction to:

(i)the applicant and respondent in the proceedings for the order or injunction; and

(ii)the person against whom the family violence order is directed (if that person is not the applicant or respondent); and

(iii)the person protected by the family violence order (if that person is not the applicant or respondent); and

(d)include (or arrange to be included) in the explanation, in language those persons are likely to readily understand:

(i)the purpose of the order or injunction; and

(ii)the obligations created by the order or injunction, including how the contact that it provides for is to take place; and

(iii)the consequences that may follow if a person fails to comply with the order or injunction; and

(iv)the court’s reasons for making an order or granting an injunction that is inconsistent with a family violence order; and

(v)the circumstances in which a person may apply for variation or revocation of the order or injunction.

(3)As soon as practicable after making the order or granting the injunction (and no later than 14 days after making or granting it), the court must give a copy to:

(a)the applicant and respondent in the proceedings for the order or injunction; and

(b)the person against whom the family violence order is directed (if that person is not the applicant or respondent); and

(c)the person protected by the family violence order (if that person is not the applicant or respondent); and

(d)the Registrar, Principal Officer or other appropriate officer of the court that last made or varied the family violence order; and

(e)the Commissioner or head (however described) of the police force of the State or Territory in which the person protected by the family violence order resides; and

(f)a child welfare officer in relation to the State or Territory in which the person protected by the family violence order resides.

(4)Failure to comply with this section does not affect the validity of the order or injunction.

68QRelationship of order or injunction made under this Act with existing inconsistent family violence order

(1)To the extent to which:

(a)an order or injunction mentioned in paragraph 68P(1)(a) is made or granted that provides for a child to spend time with a person, or expressly or impliedly requires or authorises a person to spend time with a child; and

(b)the order or injunction is inconsistent with an existing family violence order;

the family violence order is invalid.

(2)An application for a declaration that the order or injunction is inconsistent with the family violence order may be made, to a court that has jurisdiction under this Part, by:

(a)the applicant or respondent in the proceedings for the order or injunction mentioned in paragraph 68P(1)(a); or

(b)the person against whom the family violence order is directed (if that person is not the applicant or respondent); or

(c)the person protected by the family violence order (if that person is not the applicant or respondent).

(3)The court must hear and determine the application and make such declarations as it considers appropriate.

86Given that the VRO was expressed to be subject to the contact orders, no inconsistencies should have arisen between the obligations contained in the two documents. Strictly speaking, therefore, it was unnecessary for the Court to specify in the contact orders that they are inconsistent with the VRO: see s 68P(2)(a). Similarly, the Court was not required to provide explanations referred to in s 68P(2)(b) and (c). It is apparent from s 68P(4), however, that failure to comply with such requirements would not have affected the validity of the contact orders.

87Further, by virtue of the provisions of s 68Q(1), the VRO was invalid to the extent to which the contact orders were inconsistent with it.

88For the sake of convenience, I pause now to revisit the provisions of the contact orders. Paragraph 1 of the orders provided that Mr Monaco was to spend time with Child A on each alternate weekend from 10 a.m. Saturday to 4.30 p.m. Sunday, commencing Saturday 18 May 2013. Para 3 provided that Mr Monaco was to spend time with Child A on Sunday 12 May 2013 for approximately five hours. In other words, the text message incident occurred on the first occasion upon which Mr Monaco was to have overnight contact with [Child A] after the making of the contact orders.

89Para 4 of the contact orders required handovers to take place outside the Suburb M Police Station. Para 5 provided for Child A to have telephone contact with Mr Monaco on two evenings per week at about 7 p.m. Mr Monaco was required to initiate the telephone call on one of the two occasions and Ms Daniels was to initiate the telephone call on the other occasion.

90Para 9 of the contact orders was as follows:

The parties shall only communicate with each other in relation to issues concerning [Child A’s] welfare by writing either in a communication book to be provided by ([Ms Daniels]] or by email and in the event of an emergency, by SMS text message.

91I pause to record that the ROA contains detailed provisions regarding the penalties for breaching a VRO: see Division 3 of Part 6 of the ROA. It also contains ancillary provisions relating to defences to a charge of breaching a VRO and regarding the approach that should be adopted where a protected person has aided in the breach of a VRO. Sections 61B and 62 of the ROA are as follows:

61BProtected person aiding breach of restraining order or police order

(1)In this section —

aid, in relation to the breach of an order, means —

(a)do or omit to do any act for the purpose of enabling or aiding a person bound by the order to commit the breach; or

(b)aid a person bound by the order to commit the breach; or

(c)counsel or procure a person bound by the order to commit the breach;

bound person, in relation to an order, means the person bound by the order;

order means a restraining order or a police order;

protected person, in relation to an order, means the person protected by the order.

(2)In the sentencing of a bound person for an offence under section 61, any aiding of the breach of the order by the protected person is not a mitigating factor for the purposes of the Sentencing Act 1995 section 8(1).

(3)Despite The Criminal Code section 7, the protected person does not commit an offence under section 61 by aiding the breach of the order.

(4)However in the case of a breach of a restraining order, the court sentencing the bound person may, if it is satisfied that the protected person aided the breach, on its own initiative exercise the powers in section 49(1)(b) and (c) and (1a) as if it were hearing an application under section 45, and section 49(1b) to (5) apply with any necessary modifications.

62Defence

(1)It is a defence to a charge under section 61 for the person who is bound by the order to satisfy the court that in carrying out the act that constituted the offence, the person was —

(a)using a process of family dispute resolution, as defined in the Family Court Act 1997; or

(b)instructing, or acting through, a legal practitioner or a person acting under section 48 of the Aboriginal Affairs Planning Authority Act 1972, or using conciliation, mediation or another form of consensual dispute resolution provided by a legal practitioner; or

(c)acting in accordance with an action taken by a person or authority under a child welfare law, within the meaning of section 50B(4); or

(d)acting as the result of such an emergency that an ordinary person in similar circumstances would have acted in the same or a similar way.

(2)In subsection (1)(b) —

legal practitioner means an Australian legal practitioner within the meaning of that term in the Legal Profession Act 2008 section 3.

92Section 62 is the genesis for the exceptions appearing in the VRO itself. The predominance of Family Court orders over VROs is dealt with separately: see above. Of significance, however, is s 62(1)(d), which provides that it is a defence to a charge of breaching a VRO for the defendant to satisfy the Court that in carrying out the act that constituted the breach he or she was "acting as the result of such an emergency that an ordinary person in similar circumstances would have acted in the same or a similar way".

93Clearly, acting as the result of an emergency is recognised as both an exception to the primary obligation contained in para 9 of the contact orders and as a defence to any relevant charge of breaching the VRO.

94Before dealing with the meaning of the word "emergency" – both generally and in the context of the text message incident – it is appropriate to make a brief comment on the provisions of s 61B of the ROA. Put shortly, the section provides that even though a person protected by a VRO may have effectively caused or facilitated a breach of its provisions by the person bound by the VRO, the person protected is not to be regarded as having committed some form of offence for having done so; further, the person who breached the order should not be dealt with more leniently by the Court because the person protected was effectively complicit in the breach. However, s 61B(4) softens the effect of these provisions: the court sentencing the person who was in breach of the VRO may, if it is satisfied that the protected person effectively caused or facilitated the breach the breach, on its own initiative, exercise its powers in such a way as to treat the proceedings as an application to vary or cancel the VRO: see ss 45 and 49 of the ROA.

95In my opinion, and assuming that a breach of the VRO occurred as a consequence of the text message incident, it can be argued that Ms Daniels aided the breach within the meaning and contemplation of s 61B of the ROA. It is arguable that she enabled or aided (or, alternatively, counselled or procured) Mr Monaco to breach the VRO by –

(a)failing to advise Mr Monaco (or to cause him to be advised) in a timely manner that she would be late or was running late for the contact period due to commence at 10 a.m. on 18 May 2013;

(b)causing or permitting Child A to telephone Mr Monaco from her (Ms Daniels’) personal mobile telephone while driving Child A to the changeover point, well knowing that Mr Monaco would be aware that the call was being made from her personal mobile telephone and that he – not knowing who had placed the call – would be presented with a dilemma as to whether to answer it;

(c)causing or permitting Child A to telephone Mr Monaco on a second occasion in the same circumstances;

(d)engaging in communication with Mr Monaco via text message during the text message incident by :

(i)responding to Mr Monaco's first text message at 10.25 a.m.;

(ii)responding to Mr Monaco's second text message regarding a different changeover point; and

(iii)sending an unsolicited text message to Mr Monaco at 11 a.m. –

(A)advising Mr Monaco that she needed to "get back to" Child D ;

(B)advising Mr Monaco that Child A had a party to attend and was hoping that Mr Monaco would take her to it;

(C)apologising for her (Ms Daniels’) lateness;

(D)emphasising that her lateness was due to "exceptional circumstances";

(E)asserting that she had a medical certificate (which may or may not have been true); and/or

(F)advising Mr Monaco that Child A was upset waiting for him; and/or

(e)authorising or permitting (if not inviting) Mr Monaco to continue to communicate with her by text message by using the words "This is an exceptional circumstances and is the only time that you are allowed to use text to communicate with me" and by sending the unsolicited message referred to in (d) above.

Was the text message exchange authorised or excused by the contact orders?

96I accept Mr Monaco's evidence to the effect that he arrived at the Suburb M Police Station at approximately 9.45 a.m. for the scheduled handover at 10 a.m.

97I find that Ms Daniels was late for the handover and that she did not advise Mr Monaco (directly or indirectly) that she would be late until she caused Child A to call Mr Monaco from her mobile phone at around 10.20 a.m.

98I also find as follows:

(a)Mr Monaco received a call from Ms Daniels’ phone number at around 10.20 a.m. which he allowed to go through to his voicemail;

(b)he then checked his voicemail and found that the message was from Child A asking what time handover was due to take place;

(c)he then responded by text message to the number from which he had received Child A’s call: "10am!!";

(d)the text message referred to in (c) above was sent at 10.25 a.m. and was intended for Child A;

(e)he then received a second call from Ms Daniels’ phone number, which he (again) allowed to go through to his voicemail;

(f)he then checked his voicemail and found that the message was (again) from Child A saying that she was "on the way";

(g)either shortly before or shortly after he received the second call from Child A, he received the text message from Ms Daniels commencing: "Do not text me…";

(h)at some point after receiving the voice message from Child A referred to in (f) above and the text message from Ms Daniels referred to in (g) above, he saw fit to leave the handover point fixed by para 4 of the contact orders to do some shopping;

(i)Mr Monaco then sent the text message to Ms Daniels commencing: "You will need to drop her…";

(j)shortly afterwards, Ms Daniels sent the text message commencing: "No – I don't feel – Safe doing that…";

(k)Ms Daniels arrived at the handover point (Suburb M Police Station) immediately before 10.51 a.m.;

(l)upon arriving at the handover point, Ms Daniels sent the text message: "[Child A] is waiting" at 10.51 a.m.;

(m) Mr Monaco then responded by text: "Where??";

(n)Ms Daniels then sent a text message commencing: "At [Suburb M Police Station]…";

(o)Mr Monaco then made his way back to the handover point; and

(p)at 11 a.m., and while Mr Monaco was making his way back to the handover point, Ms Daniels sent the text message commencing: "[Child D] is ill with asthma…".

99It follows from the above that I do not accept the totality of the evidence of either Mr Monaco or Ms Daniels. Relevantly:

(a)I find that Mr Monaco sent the text proposing that the handover point be changed from the [Suburb M Police Station] to Woolworths [at the Local Shopping Centre] before Ms Daniels arrived at the Police Station and that he was well aware that Ms Daniels was not prepared to change the handover arrangements either before or immediately after he elected to "do some shopping".

(b)I do not accept Ms Daniels’ evidence that she arrived at the Police Station at 10.28 a.m. I find, instead, that she arrived there no earlier than approximately 10.45 a.m.

(c)To the extent that it is relevant, I do not accept that Ms Daniels had a medical certificate for Child D when she sent the text message to Mr Monaco at 11 a.m. on 18 May 2013. I accept, however, that Child D was unwell on both 17 and 18 May 2013.

(d)I find that a number of allegations in Ms Daniels’ statement to the police dated 15 August 2013 are false or misleading, in that –

(i)she did not arrive at the [Suburb M Police Station] until well after 10.20 a.m.;

(ii)she did not receive the text message stating "10am!!" while she was at the Police Station – the message was received while she was driving to the handover point (in the circumstances described above); and

(iii)she failed to put the text message exchange in its proper context, in that she made no mention of arranging for Child A to call Mr Monaco (from Ms Daniels’ mobile) – twice – before she arrived at the handover point.

(e)I reject Ms Daniels’ comment in her statement to the police at [20] that "… at no stage have I given permission for (Mr Monaco) to contact me on my mobile phone…" I find that the words "This is an exceptional circumstances and is the only time that you are allowed to use text to communicate with me" in her second message to Mr Monaco on 18 May 2013 can reasonably be interpreted as giving permission to him to contact her on her mobile phone on that occasion. The subsequent text messages between Ms Daniels and Mr Monaco on that morning support the conclusion I have reached in this regard.

100According to the Macquarie Dictionary (online edition), "emergency" means:

An unforeseen occurrence; a sudden and urgent occasion for action.

101The Oxford English Dictionary (online edition) defines "emergency" as:

• The arising, sudden or unexpected occurrence (of a state of things, an event, etc.).

• A juncture that arises or "turns up"; esp a state of things unexpectedly arising, and urgently demanding immediate action.

102The Merriam-Webster Dictionary (online edition) defines "emergency" as:

An unforeseen combination of circumstances or the resulting state that calls for immediate action.

103In my opinion, and when all the surrounding circumstances are taken into account, Mr Monaco's initial text message ("10am!!") was authorised or excused by para 9 of the contact orders in that it was sent in what could fairly be described as "a state of things unexpectedly arising and urgently demanding immediate action". Ms Daniels was clearly running late (and significantly so) for the first handover for overnight contact since the making of the contact orders. She had made no contact with Mr Monaco (directly or indirectly) to advise him that she would be or was running late and had done nothing to reassure him that she would, in fact, be bringing Child A to the handover point. Nor had she made any attempt to advise him (directly or indirectly) that (for example) she had not had an accident or that Child A was not unwell or otherwise unable to attend the contact that had been ordered. Mr Monaco was quite entitled to feel anxious and concerned. Mr Monaco then received a telephone call from Ms Daniels’ mobile phone – which, for the reasons he gave – he felt unable to answer. When he checked his voicemail, he found that the call had been made by Child A who was seeking to confirm the time for handover. At that stage, he did not know that Ms Daniels and Child A were on their way to the handover point. He found himself in a difficult and unexpected position. He then sent the first text to Child A (who had placed the call to him). I accept that it was not his intention to communicate directly with Ms Daniels on that occasion, although he knew that Child A would convey the information he had provided to her mother. I place no weight on the two exclamation marks. They indicate no more than a degree of frustration on Mr Monaco's part.

104I am not satisfied, however, that the second text message can properly be characterised as having been sent in the event of or as a result of an emergency. Given the sequence of events as I have found it to be, Mr Monaco could have and should have remained at the Suburb M Police Station – which was the defined handover point pursuant to the contact orders. Having regard to the long history of acrimony between the parties and the seriousness of the allegations made by each against the other for an extended period prior to the making of the contact orders, it was unnecessary and unwise for Mr Monaco to leave the vicinity of the Police Station and to attempt to direct Ms Daniels to effect handover at a different location. Clearly, Mr Monaco's second text was intended for Ms Daniels and not for Child A.

105Similarly, I am not satisfied that the third text message sent by Mr Monaco ("Where??") can properly be characterised as having been sent in the event of or as a result of an emergency. In the light of Ms Daniels’ earlier text, it was clear beyond argument that Child A would be at the Police Station. Further, to ask a question of Ms Daniels invited a response. It was unnecessary for him to say anything more than that he was on his way or that he would be there in a few minutes, or something similar.

106When all is said and done, however, it is apparent that the alleged breach of the VRO arises from three short text messages – two of which were innocuous (indeed, the first text message was intended for Child A and not for Ms Daniels). The other text message was unwise and inappropriate, irrespective of Ms Daniels’ discourtesy (in failing to advise him, directly or indirectly, of the fact that she would be late until causing Child A to make the first telephone call). In spite of the content of Ms Daniels’ first text message, it is clear that she regarded the majority of the communications that occurred on that morning (and, indeed, the events which caused her to be late and thereby fail to comply with the contact orders on the first occasion of overnight contact after they had been made) as exceptional, and justified in the circumstances. In my opinion, the entire incident amounted to a storm in a teacup.

Conclusion

107I conclude, therefore, that with the exception of Mr Monaco's text message commencing "You will need to drop her…", the communications between Mr Monaco and Ms Daniels on the morning of 18 May 2013 were authorised, justified or excused by the provisions of para 9 of the contact orders. The first text message occurred as a result of or in the event of an emergency, and the third text message was sent after Ms Daniels had effectively given permission to Mr Monaco to contact her on her mobile phone on that occasion.

I certify that the preceding [107] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate

27 May 2016

______________________________________

1 see Mr Monaco's affidavit sworn 16 October 2015 at [6]
2 see the Department's memorandum dated 15 October 2015
3 it seems that one or both of the children now attend [School B High School]
4 see, for example, Mr Monaco's affidavits sworn 6 February 2012 at [25] and 10 May 2012 at [60]
5 see exhibit H2 tendered on 15 November 2013
6 see, for example, [Mr Monaco's] affidavits sworn 10 May 2012 at [63] to [83], 11 April 2013 at [4] to [13] and 24 June 2013 at [13]
7 see also [Mr Monaco's] affidavit sworn 29 July 2013 at [220] to [227]
8 see annexure DCM 32
9 see [Mr Monaco's] affidavit sworn 27 August 2013 at [4]
10 see, for example, [Ms Daniels’] affidavit sworn 13 September 2013 at [3] to [7], [15] and [18]
11 see [Mr Monaco's] affidavit sworn 29 July 2013, annexure DCM 96
12 see [Mr Monaco's] affidavit sworn 29 July 2013 at [225] and annexures
13 see [Mr Monaco's] affidavit sworn 29 July 2013 at annexure DCM 99
14 see exhibit H1 tendered on 15 November 2013
15 see the email dated 8 October 2013 from [Senior Sergeant W] to [Mr Monaco's] solicitors (being part of exhibit H1)