Morrissey and Morrissey

[2009] FamCA 997

FAMILY COURT OF AUSTRALIA

MORRISSEY & MORRISSEY [2009] FamCA 997

FAMILY LAW – CHILDREN –With whom a child spends time

Family Law Act 1975 (Cth)

APPLICANT: Mr Morrissey

RESPONDENT: Ms Morrissey

FILE NUMBER: DGC 3488 of 2007

DATE DELIVERED: 5 October 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 5 October 2009

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the application for contravention filed by the father on 31 August 2009 is dismissed.

2. That until further order, paragraphs 4 and 8 of the consent orders made 10 March 2009 are suspended.

3. That the parties forthwith do all things necessary and sign all documents as may be required to enrol at the Gordoncare Contact Service for the purposes of the father having supervised time with the child J born … May 2003 (if possible on a fortnightly basis).

4. That any contact occurring at Gordoncare pursuant to these orders shall only be between the father and the child save that the father may have with him the child K of his relationship with Ms B.

5. That any application (whether interim or final) seeking orders by the father to vary these orders shall be listed directly to the Senior Registrar’s list of cases as soon as practicable after it is filed. 

6. That all proceedings be removed from the list of cases awaiting a hearing.

IT IS NOTED that publication of this judgment under the pseudonym Morrissey & Morrissey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT DANDENONG

FILE NUMBER: DGC 3488 of 2007

MR MORRISSEY

Applicant

And

MS MORRISEY

Respondent

REASONS FOR JUDGMENT

1. Final orders were made on 10 March 2009 concerning the child J who was born in May 2003.

2. Paragraph 4 of those orders reads that:

   The husband spend time and communicate with the child on each alternate weekend from 6:30 pm on Friday until 6:30 pm on Sunday, extending to 6:30 on the Monday if that be a public holiday, commencing 6 March 2009. 

3. In addition, the orders also provided for half of school term holidays and the various handover points.

4. The father filed an application on 31 August 2009, seeking that the mother be dealt with for contravening the orders.  I will not set out the details of those contraventions, save to say that there are ten allegations that he did not see and spend time with J; the first of those periods being 1 May 2009 and the last alleged being 21 August 2009. 

5. The second tranche of the contravention allegations relates to telephone contact and the first of those was said to have occurred on 22 April 2009 and the last on 19 August 2009. 

6. The face to face contact allegations also fit into two different categories.  The first relates to the first period on 1 May 2009, in which it is asserted by the mother that the child was ill but that, in respect of the succeeding nine allegations, she had a reasonable excuse by virtue of a number of matters to which I shall refer.

7. In relation to the telephone contravention allegations, the mother’s defence is that she has not breached the orders because no telephone calls were made after 19 March 2009 except for one on 1 May 2009, until 9 August 2009. 

8. Both parties appear today without legal representation. 

9. It is of some significance that this contravention application was before me in the judicial duty list on 23 September 2009 and adjourned so that, I thought, both parties would obtain some legal advice.  Certainly the mother did that and filed an affidavit, to which I shall refer in some detail.

10. There is a defence of health and safety of the child in respect of the face to face contact and that no telephone calls were made in respect of the second tranche. 

11. The law relating to contraventions is set out in Division 13A of the Family Law Act 1975 (Cth) (“the Act”). Section 70NAA(1) says that the division deals with the powers that a court with jurisdiction under the Act to make orders to enforce compliance with orders affecting children.

12. Section 70NAA(2) provides that a court always has the power to vary the order but in doing so, the court has to have regard to any parenting plan that has been entered into since the order was made.  In this case I am satisfied that there has been no parenting plan subsequent to the March 2009 orders. 

13. Section 60CA applies if ultimately the contravention applications are determined and a court is obliged to then decide whether to make parenting orders.  Section 60CA refers to the court having regard to the best interests of the child as the paramount consideration.

14. Section 70NEB sets out what a court may do if it finds that the contravention was less serious but without reasonable excuse.  I am satisfied in this case that, for reasons which will follow, this case fits into that category. One of the options for the court in so finding is to make a compensatory parenting order but under s 70NEB(5), the court can only do that if it is in the best interests of the child to do so. 

15. If a contravention is not established, then unlike the other divisions in the Act, the court is only empowered to deal with costs. Because of s 70NBA, the power is still there to make some other parenting order.

16. If the contravention application is proved but a reasonable excuse is established, the court under s 70NDB may make a compensatory time order and must consider doing so.  However, the court must not make such an order if it would not be in the child’s best interests.  That is, in reality, the same concept as applying s 70NBA except this time the court must consider a compensatory order. 

17. The first step is to determine whether there has been a breach of the order because s 70NBA cannot be applied until there is such a finding. 

18. Section 70NAC provides that 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.

    There is a sub paragraph (b) but it is not relevant in this particular case. 

19. To have contravened an order, a person bound by it must either intentionally fail to comply with the orders and the obligations created by those orders or to have made no reasonable attempt to comply with them.  The onus of proof lies on the applicant.  The standard of proof in this case is the balance of probabilities.

20. Section 70NAE(1) provides that the circumstances in which a person may be taken to have had a reasonable excuse for contravening an order affecting children include but are not limited to, the circumstances set out in the various subsections.  Relevantly here, subsection 5 reads:

    (5)      A person (the respondent ) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

    (a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

    (b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

21. The father’s evidence is modestly simple.  He said of the contact that it just did not happen.  His affidavit sets out the dates and the times but no more than that.  I gave him an opportunity on 23 September to contemplate the fact that his material was scant.  I recall on that occasion that I suggested that as the mother had requested an adjournment because she wanted to put expansive material before the court, he might contemplate his position.  He filed nothing further.  To some extent, and perhaps in fairness, he said that he did not receive the mother’s material until this morning.  However, I gave him an opportunity to read that material and to explain to me what he disagreed with and there was very little he gave in terms of evidence.

22. The mother’s evidence was much more expansive.  She said, and she was cross examined that she has not had any telephone calls during the relevant period of the 15 periods to which I have referred.  The father alleged, in cross examination, that the phone was switched off whenever he rang. The mother denied that and said that it was never off.  The father did not produce any evidence that might prove that he made the calls. 

23. The onus is on the applicant to prove the assertion and that must be done on the balance of probabilities.  In respect of the telephone contact, I could not be satisfied in this particular case, having regard to the mother’s assertion that the telephone calls were not made, that there is any basis for the allegations.  Those will be dismissed.

24. The mother’s evidence in relation to the face to face contact is modestly simple as well.  The father disputes it.  However, he has no evidence before me that could assist me to work out the position from his perspective.  The mother said that on the weekend when J did spend time with her father, on 6 to 9 March 2009, she returned with urine in her jeans and was very dirty and extremely upset. 

25. The mother said that during that weekend, J told her that the father and his partner had been fighting all weekend in the presence of J, that the child was sick and uncared for and had to sleep on the floor.  The child’s Primary School in a letter dated 10 March expressed concern about J and, as a result of that, the mother took J to the hospital and, according to her evidence, J was placed on antibiotics for infections. 

26. The importance of this piece of evidence is that although it is outside of the ten periods of the allegations, it certainly has a substantial impact on what flowed from the first period alleged.  The mother said that a fortnight later, which was mid March, she received a telephone call from the school that J had soiled her pants and stated she was afraid to go to her father’s.  The mother picked the child up and took her home. 

27. She said she encouraged J to go to the father’s house but the child was upset because she did not have her own bedding or bed.  The mother said, and this was a subject of some discussion during cross examination, she offered the father a new set of sheets, a doona cover and pillow and a stuffed toy for J to cuddle.  She offered the father a new bed but he rejected it.  There was some dispute about just exactly why that occurred but it certainly indicates that there were problems which might have explained J’s reluctance to go.

28. J did go and that was the last period of time.  That also included some days of the school holidays.  When J returned home, the mother said she was sick and had to be placed on antibiotics again for infections. J again told her mother that the father and his partner were fighting and that the partner had said to the father, “You either love [K] or [J].  If you love [K] you can stay here but if you love [J] you can fuck off and go somewhere else.”  This, it must be remembered, is a statement being reported to the mother by five year old J.  K, referred to in J’s statement, is the partner’s new child and the father is the father of that child. 

29. The child also told the mother that she was told by the father’s partner that it was not the father’s house and therefore her rules applied.  There is perhaps nothing unusual about that and it may very well be that a child of J’s age may have misconstrued what was meant; but what could not be misconstrued was the following event that occurred on that weekend.  

30. It was asserted by the mother and not denied by the father, that J was tied to a set of bunks by the throat by the father’s partner’s son and used as a horse.  The father said that he saw some of this and he disciplined the child.  To have this reported to her by a five year old child, without explanation from the father, would be clearly not only disconcerting but quite frightening.  It is perhaps not surprising that the child then expressed reluctance to go on contact again. 

31. The mother said in her affidavit that she met the father at a local area and spoke to him in a calm manner about the concerns that J had expressed in relation to the previous visit. She said, and again the father did not deny this,   “[Ms B] is having problems at the moment and she thinks she is fat and ugly and her medications are up and down.”  That seems to indicate that there was certainly some problem in the household of the father and, as such, what the mother was told by J has a ring of reality about it. The subject of the tying to the bunks was also described and the father is said to have told the mother that “kids will be kids” and it was only “a game”. 

32. The catalyst for much of what seems to have gone wrong in this particular contact order occurred also on 17 to 19 April where the father had J for the last weekend of the holidays and presumably some days before that.  The mother said that J returned home very ill and with her hair chopped off in chunks.  She was sick with gastric vomiting and breathing difficulties. 

33. The father is said, by the mother, to have told her that he cut the child’s hair because it was in the child’s face.  According to the mother, the child was traumatised.  The mother then said she took J to the doctor the following morning after she had attended to her during the night.  J was experiencing severe asthma attacks and was placed on Ventolin six times a day.

34. Whilst I am not a doctor, I am well aware that Ventolin is a preventative as well as a drug used to calm children with asthma and the fact that it was used on six occasions a day indicates that the medical practitioner was concerned about the child’s health.  The mother annexed various medical certificates to her affidavit all of which indicated that, at least on the first occasion to which I have referred, the child was quite ill.

35. I am satisfied in the circumstances that the mother has a reasonable excuse in respect of that first visit.  Subsequent to that first visit of the ten, the child had x-rays and various illnesses.  The mother produced the various reports of the Radiology MIA.  That was dated 30 April, 2009.  The applicant father did not dispute that occurred either. 

36. In other statements J, according to the mother, said that she had seen the father’s partner putting “powders” into the father’s drinks and the partner told J, when the child queried what she was doing, that the father didn’t take his medicine and he would get sick.  All of this would no doubt be confusing for the child. 

37. As a consequence of that behaviour, the mother decided that it was appropriate for the child not to go on the various visits that would have otherwise been required under the court orders.  However, I need to add to that the concern expressed about the father’s partner.  Having had some involvement in this case leading up to the final orders being made, it was my recollection that the mother’s concern was expressed about the father’s partner who had had significant involvement with the Department of Human Services.  It is conceded by the father that there is still considerable involvement by that department.  

38. Having regard to the fact that that evidence from the mother was really not challenged, I can objectively accept her concern was real.  It is of serious concern that the child has not had any contact with her father but what I have is a letter from the school dated September 2009, indicating that of late, the child has had no difficulties and has been progressing well.  That is to be compared with the earlier description of the child’s behaviour which would have been around the time of the last contact period when the child was described as often absent, withdrawn, unhappy, sleepy and frequently sick.

39. The child, it must be remembered, is five years of age and a preparatory grade student. Of some concern is the fact that whilst a person may be entitled to rely upon the excuse of reasonableness for the purposes of protecting the child both physically and emotionally, it is incumbent upon that parent to bring an application to suspend the orders. The mother gave evidence that she approached her lawyers in May of this year and it seems that instructions were given but nothing further occurred. 

40. I propose, having regard to the circumstances of this case, to ensure that that problem is rectified.  The dilemma here is that there is no contact occurring and having regard to what I have read, the father needs to put proper material before the court so that I can understand comprehensively just what is happening in his household and whether or not there is a problem of the sort that has been described by J to her mother. 

41. It is most unfortunate, in this case, that there is a poor relationship between the mother and the father but also, importantly, between the mother and the father’s partner.  The mother gave evidence about the fact that she received, in the mail, a letter from the father’s partner in which there is a photograph of the partner with a finger salute and a face pulled.  The father said the police contacted him and have not pursued a breach of any intervention order but it is quite clear that there is a problem of some substance. 

42. I am satisfied that, notwithstanding no application was brought by the mother subsequent to the first weekends of the ten that are alleged, she has got a reasonable excuse in the circumstances.  However, the matter cannot simply end there because the orders are still extant.  The mother, to her credit, said that she thought that there should be some form of relationship between the father and J and suggested supervision by GordonCare.  I am not at all confident that GordonCare can do much quickly but I would hope that something could be arranged soon.

43. The father had no proposals other than that the orders should be complied with but in the circumstances, this is not a case where I could be satisfied that it was in the child’s best interests for those orders to continue in the absence of proper material. 

44. Accordingly, I propose to find that the orders need to be re-examined and I propose to suspend the existing arrangement but order that the parties enrol at GordonCare as soon as practicable and that until the father files a proper application to suspend the orders I am now proposing to make, he spend time with J in the presence only of the child of his relationship with Ms B but not with Miss B present. That supervised contact is to occur as soon as possible and as often as possible under any arrangement GordonCare can provide. 

45. I also direct that any interim application by the father to vary these orders be placed before the senior registrar for determination at the first available opportunity.  Accordingly, what I propose to do is to dismiss the father’s application and make the orders to which I have referred. 

RECORDED BUT NOT TRANSCRIBED

1. Until further order, I will suspend paragraph 8 of the orders of March 2009 as well.

I certify that the preceding forty six (46) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date: 26 October 2009