Naczek and Dowler

[2010] FamCA 399

FAMILY COURT OF AUSTRALIA

NACZEK & DOWLER [2010] FamCA 399

FAMILY LAW – CONTRAVENTION – s 112AD relating to the wife attending and complying with requirements of a psychotherapist’s treatment – Meaning of reasonable excuse – Application for costs

Family Law Act 1975 (Cth)

APPLICANT: Mr Naczek

RESPONDENT: Ms Dowler

FILE NUMBER: MLF 1222 of 2006

DATE DELIVERED: 21 MAY 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 14 MAY 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR ST JOHN SC

SOLICITOR FOR THE APPLICANT: WESTMINSTER LAWYERS

COUNSEL FOR THE RESPONDENT: MR FOOKES

SOLICITOR FOR THE RESPONDENT: LANDER & ROGERS

Orders

1. That the court finds that the wife failed to comply with paragraph 6 of the orders made on 28 November 2008.

2. That the court finds that the wife did not have a reasonable excuse for failing to comply with the order.

3. That for the purposes of s 112AD of the Act, the appropriate sanction is to require the wife to enter into a bond in accordance with s 112AF of the Act.

4. That by 4.00pm on 28 May 2010, the wife enter into the bond annexed to these orders and that if she so chooses to enter the bond, it be executed in the presence of her solicitor whose signature as a witness shall be construed as an acknowledgement that the wife has been advised of the provisions of s 112AF of the Act.

5. That if the wife has not executed the bond in accordance with paragraph 4 then the matter be relisted before me on a date to be fixed with my Associate for the purposes of further determination according to law.

6. That the husband’s application for costs is dismissed.

7. That save for the orders set out above, the application for contravention filed by the husband on 1 April 2010 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 1222  of 2006

MR NACZEK

Applicant

And

MS DOWLER

Respondent

REASONS FOR JUDGMENT

1. On 1 April 2010, Mr Naczek (“the husband”) filed an application seeking to have Ms Dowler (“the wife”) dealt with for contravening an order made by the Court on 28 November 2008.

2. The contravention application alleged three breaches of the order.

3. The application initially filed sought to have the wife dealt with under Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) but upon application and without objection by the wife, it was amended on 10 May 2010 so that the Court could proceed under Part XIIIA of the Act.

4. When the allegations were put to the wife through her counsel Mr Fookes, she denied each of the allegations. 

5. The only part of the order made on 28 November 2008 relevant for these proceedings was as follows:

   6.The wife continue to attend upon her psychotherapist Ms [W] or such other psychotherapist as recommended by Ms [W] as frequently and for as long as Ms [W] or her nominee shall direct.

   7.The wife authorise her treating psychotherapist to advise the husband in writing of her failure to comply with paragraph (6).

6. At the time that the husband filed his application for contravention, he filed an affidavit.  That evidence was largely unchallenged.  He said that there had been correspondence with the psychotherapist about whether the wife (and if so when) had given her an authority referred to in paragraph 7 of the orders.  There was a lack of response.  By January 2009, the wife was requested to confirm compliance was occurring with the orders and on 4 March 2009, the solicitors for the wife replied that the wife was seeing the psychotherapist twice weekly.  There was some discussion between lawyers referred to by the husband concerning whether or not the psychotherapist had received a copy of the orders.  None of that affects the decision that I have to make.

7. The husband said that due to his “ongoing concerns” about the wife’s compliance with the orders, he gave instructions to his solicitors to write directly to the psychotherapist.  All of this correspondence, including the response of the psychotherapist, was admitted into evidence.

8. Rather than deal with the correspondence sequentially, I shall turn to the evidence of Ms W below. 

9. The husband’s case was that because of the nature of the relationship between the wife and the psychotherapist, he was really unaware of whether or not the wife was complying with the orders. 

10. By 10 March 2010, the husband began asking for explanations about a change of professionals made by the wife and any change to the nature of the treatment which was clearly the basis for the orders.

11. At the commencement of the proceedings, senior counsel for the husband sought the release of all of the notes of the psychotherapist.  I gave written reasons as to the ruling that that was not to happen.

12. The husband was cross-examined by counsel for the wife.  He said that he had no confidence that the wife was complying with the orders.  He had not personally been corresponding with the psychotherapist because he felt that he was not able to do so.  He did not want to interfere. 

13. One of the unusual features of the current position is that the psychologist who is now dealing with the wife, is also treating the children of the parties.  That psychologist, Mr MY, knew both husband and wife and obviously the background of the children.

14. Ms W was the psychotherapist referred to in the orders.  She is by profession, a psycho-analytic psychotherapist.  She said she had been treating the wife since April 2007.  Thus, although the orders were made in late 2008, Ms W had by that time, already had a significant history with the wife.

15. Ms W was cross-examined about when she became aware of the orders and when she formally saw them.  In my view, nothing turns on any of those issues for reasons to which I shall refer below.

16. Up until June 2009, Ms W was seeing the wife on two occasions per week.  Her evidence was that that was the preferred treatment position.  She said that in June 2009, the wife said that she would come once per week.  Ms W was asked what her recommendation was about the wife’s position and she said she was “hoping” that she would come twice per week and certainly that was her wish.  She confirmed that her wishes had been discussed with the wife and that was because, in her view, there was a reference in the orders to twice per week as well as it being in the wife’s interest.  It will be clear from reading the order above that there was no such reference to twice per week.  However, on any view of the orders, it was intended that the determination of the frequency and duration of the appointments be a matter for Ms W.

17. Various questions were asked of Ms W about the reasons given by the wife as to why she felt it necessary to reduce the visits to once a week.  Ms W candidly said that there were financial considerations because the wife could not afford the visits but also because the wife was doing “really well” and had “come a long way” and that the wife felt that she “wanted to move on”.

18. Senior counsel for the husband carefully put to Ms W that it was the wife who wanted once per week but that Ms W had said it should be twice and Ms W confirmed that was the position.

19. There was some discussion about what happened between June 2009 and October 2009 during which, the wife attended mostly on a once per week basis and interestingly, Ms W persisted with the treatment notwithstanding it was not her preferred position.

20. Ms W said that things went awry when she contacted the solicitors for the husband.  This was an unusual situation because the order was quite clear that Ms W had an obligation upon the authority of the wife to let the husband know if recommendations were not being followed.  Ms W confirmed that the wife was unhappy nonetheless.  I find that late in 2009, the position between Ms W and the wife deteriorated to the extent that the wife was clearly not following the recommendations of Ms W.  Commonsense dictates therefore that the expert as a treater would be struggling to fulfil the program that she intended.  Ms W was still seeing the wife however in December prior to a lengthy break over the summer period when she was to be on holidays. 

21. In my view, none of those matters affects the position in respect of either the husband or the wife in this contravention application.

22. By February 2010 when the psychotherapy should have resumed after the long summer holiday break, Ms W became aware that the wife wanted to see Mr MY. 

23. Senior counsel for the husband asked Ms W whether she recommended that the wife go to Mr MY.  Her response was illuminating.  She said in the end, it was her recommendation because it was an agreeable outcome for the wife. 

24. Ms W confirmed that she had spoken to Mr MY who is now treating the wife.  Albeit that Mr MY undertook a different process and may not have the same qualifications as Ms W, she felt that she knew Mr MY by reputation and she was not troubled about the role that he was to fulfil.  At the close of the husband’s case, I dismissed the third allegation relating to the fact that the wife had not provided an authority to Ms W.  There was no evidence of that.

25. Before the wife began her evidence, it was clear that there were two remaining allegations.  In many ways there was an overlap.

26. The first of the remaining allegations related to the wife failing to follow the recommendations of Ms W and the second related to the period after the wife took up treatment with Mr MY.  In my view, for the reasons to which I shall turn when I deal with Mr MY’s evidence, I am satisfied that the wife is now fulfilling the recommended treatment of Mr MY.  Accordingly, I dismissed the second of the remaining allegations.

27. The wife’s evidence was that she had attended Ms W for two and a half years on two occasions per week and that reduced to once per week after June 2009.  She was asked why that occurred and she mentioned that it was because of “financial struggles” and the therapy was changing in dynamic.  By that she meant that she was not being as fulfilled as she had been and she was getting a sense of her own self.  She said she asked for alternative arrangements and she was also struggling to meet financial commitments associated with attending lawyers.  Although the evidence given about the financial position was largely irrelevant in so far as it may have affected the contravention, the wife said that she owed her Australian lawyers $850,000 and lawyers in the United Kingdom £35,000. 

28. At the conclusion of the wife’s evidence in chief, senior counsel for the husband renewed his application to examine the notes of Ms W.  Again, I refused.  I did so for the following reasons.

29. On the basis of the evidence to which I have just referred by the wife, there could be no suggestion other than that the wife did not comply with paragraph 6 of the orders in that she did not follow the recommendations of Ms W. That then meant that pursuant to the provisions of s 112AD(1), the wife had to show that she had a reasonable excuse for contravening the order.

30. Her evidence as I have referred to it above, indicated that apart from her struggling financial circumstances, she felt that she was coping and did not need the treatment. 

31. In my view, that evidence could not establish a reasonable excuse.  On that basis, whatever was in the notes of Ms W could not assist the wife such as to give rise to the reasonable excuse.  I pointed out to counsel for the wife that I was going to adopt that view and he conceded that the wife could not establish a reasonable excuse based upon that evidence.  For the sake of clarity however, what follows is my logic. 

32. Part XIIIA provides an exception which is extremely wide providing, on its face, an almost unlimited range of facts and circumstances which could be justified as fitting within a definition of reasonable excuse. If it was permitted to be that wide and unconditional, what would be the point of having provisions such as those set out in s 112AB(1)?

33. It is not sufficient to simply say that what is a reasonable excuse depends on the individual facts. It is important to look to the purpose of the whole of the provision in which the exception to complying with the requirements of the order arises. That is, if a defence of "reasonable excuse" is raised, one has to look at it in the context of the requirement for compliance with the order.

34. Whilst a reasonable excuse is examined objectively as being an excuse which would be accepted by a reasonable person, having regard to the nature of the requirement for compliance with court orders, the reasonable person must be well-informed about those requirements.

35. In law, reasonableness involves a judgment of degree and even well-informed minds may differ about its meaning. The test cannot be absolute or precise because of the very use of the words “reasonable excuse” which acknowledge that there will be cases in which a person is justified in refusing or failing to comply.

36. One difficulty with this provision is that the courts have to assess the conduct after the event with the benefit of hindsight and as such, one has to be careful to look at what was occurring at the time of the breach. Another difficulty is that despite the vagueness of the language of 112AC(1) and (2), the courts have been given both the power and the responsibility to determine the acceptability of any defence. In my view, there is a need for some certainty whilst at the same time being cautious not to be proscriptive.

37. Ultimately, the starting point is that the courts must give effect to the will of Parliament. That requires compliance with the orders of courts. The onus of proving a reasonable excuse falls on the respondent. When objectively determining whether the court is satisfied on the balance of probabilities that the onus has been met, it must keep in mind the importance of the order being fulfilled. It is legitimate to contemplate the purpose behind the order.

38. Whether a defence of reasonable excuse can be justified depends on whether or not the court is satisfied that it is both right and proper to excuse the person for not having complied with the order. It must be right in the sense of the integrity of the order and proper having regard to the importance of the outcome being just.

39. I pointed out to counsel for the wife and also to senior counsel for the husband that the only purpose in any cross-examination of the wife in this case thereafter must have something to do with the issue of mitigation.  Accordingly, senior counsel for the husband cross-examined the wife about financial issues but none of those matters in my view affects the ultimate determination. 

40. Because I indicated that I wanted to hear evidence in relation to the mitigation point, the wife then called the new psychologist Mr MY.

41. Mr MY is a psychologist with considerable experience.  However, he does not undertake psycho-analytical psychotherapy.  In this case, that does not matter because the question of the nature of the treatment is a matter for the expert. 

42. Mr MY was asked various questions about frequency and compliance and he confirmed that the wife was attending as required by him.  He conceded in cross-examination that the wife told him that she was willingly attending and he accepted that.  There was no suggestion that she was being forced to attend pursuant to any order.  He confirmed that he would contact the husband in the event of the wife’s failure to comply with the orders.  He confirmed that he had been made aware of the orders and said that even if he had not been given a written authorisation to speak to the husband, his retainer contained an implied agreement.  He said in any event, he had an expectation that he would be obliged to let the husband know if the wife failed to follow his recommendations.

43. One interesting observation made by Mr MY was that the wife felt it was onerous financially to continue to see Ms W having regard to what she was gaining out of those visits.  The significance of that observation is that it must have come from the wife in the early part of the treatment by Mr MY.  Again it highlights the fact that the wife was determining the nature and extent of the treatment rather than following what was required by the orders.

44. Section 112AB(1) provides that a person shall be taken to have contravened an order only if they have either intentionally failed to comply with the order or made no reasonable attempt to comply. 

45. In this case, I find that the wife has intentionally failed to comply with the order because of the fact that she was aware of the recommendations of Ms W from June 2009 until December 2009 and chose not to follow those recommendations and therefore intentionally failed to comply with the order. 

46. Section 112AA defines an order under the Act to mean an order other than a parenting order. In my view, there can be no doubt that this order was an order made under the Act.

47. Section 112AD of the Act provides that if a court is satisfied that a person has without reasonable excuse contravened the order, the court may make an order imposing one or more of the sanctions available to be imposed under s 112AD(2). It is important to note however that the sanction or sanctions must be what the court considers most appropriate in all of the circumstances of the evidence.

48. Section 112AD(2) provides effectively for types of sanction. The first is a bond, the second is a sentence of the type applied by state courts relating to things such as community based work commitments and period detention. A third sanction is a fine and the fourth is that of imprisonment.

49. Both counsel conceded that the working of s 112AD(1) provides the court with a discretionary power to make no order but if an order is to be imposed, it has to fit within one of the sanctions to which I have referred.

50. Section 112AC defines what a reasonable excuse means.  I have already referred to that.  The section does not limit the court to the circumstances such as a person not understanding the obligations.  The court is at large but for the reasons that I have earlier articulated, the reasonable excuse in this case could not be established because the wife had an opportunity to seek to vary the orders if she either could not comply with them for financial reasons or alternatively, felt it was unnecessary to follow the required treatment.  They were the only courses open to the wife and to adopt the position that she did, could therefore not amount to a reasonable excuse.

51. I find therefore that the remaining contravention (Count 1 only) is proved and that the wife does not have reasonable excuse.

52. Each party’s counsel then addressed the issue of what was the appropriate sanction.  The wife’s position is that I should exercise the discretion and make no order.  Senior counsel for the husband urged me to impose a bond. 

53. To impose no sanction would mean that I would have to be satisfied about two things.  The first is that the level of seriousness was insignificant in the circumstances.  The second is that I would need to be confident that there is no prospect of the wife doing what I have criticised her for namely unilaterally deciding what orders she would comply with.  I find therefore that this is not a matter that I should treat as insignificant.

54. In addition, I find that it is important to take into account the basis behind the order.  Notwithstanding I should not and do not take into account the background that gave rise to the orders in 2008, I am obliged to take into account that the order was put there for a specific purpose namely to assist the children to have a relationship with their father without interference from their mother who required treatment.  To simply ignore the basis behind the order would be ignoring the seriousness of it for the benefit of the children.

1. Senior counsel for the husband urged me to make the order a bond of 18 months.  In my view that is unnecessary.  It is quite clear on the evidence that the wife pursued treatment with Ms W for over two years albeit that the unilateral action by her occurred only eight months after the orders were made.  What I need to be conscious of is the fact that the wife must remember that it is not her prerogative but rather that of the professional, to determine the treatment.  As I pointed out, issues associated with her capacity to comply with any directions may become a matter for the court but did not here.

2. In taking those matters into account, I need to contemplate whether a bond would be sufficient reminder to the wife of her obligations.  In this case, I accept what counsel for the wife said namely that the very litigation had brought the message home to her that she did not have the capacity to make unilateral decisions.  Counsel for the wife also urged me to take into account the fragility of the wife’s psychological state.  I do so only in respect of the fact that at least for a limited period of time, the wife needs to establish a treatment regime with Mr MY albeit that it may be difficult for either financial reasons or simply because of the fact that she finds it hard to comply.  The bond will be a reminder that she cannot take unilateral action and must resort to the law regardless of how difficult and inconvenient that may be.

3. I find on the evidence that Mr MY’s relationship with the wife has already begun and seems satisfactory.  Thus, a period of six months should be ample for that treatment regime to be cemented and for progress to be made.  I propose therefore to make a bond for only a period of six months.

4. Section 112AF provides that a bond may be with or without surety and with or without security. In my view none of those matters are necessary in this case having regard to the fact that the wife has been involved in significant litigation and on what I was told, has significant steps still ahead of her.

5. Section 112AF(4) provides that a court may impose conditions including that of a person being of good behaviour. The only criticism made of the wife on the evidence is that she failed to comply with the recommendations of her treater. There is no suggestion she has otherwise not been of good behaviour and accordingly, it seems inappropriate that I make a simplistic order along those lines. There is no other condition that I can contemplate which would otherwise be necessary in this case.

6. Section 112AF(5) provides that if the court proposes to require a person to enter into a bond, it must before making the requirement, explain the purpose and effect of the proposed requirement as well as the consequences that may follow if the person fails to enter into the bond or to act according to its terms.

7. I had contemplated having the wife return for that purpose but I state for her benefit the following:

   ·It is a requirement that if she enters into the bond and fails to comply with it, I will as a condition of the bond, have her brought back before the court and dealt with according to law. What the wife will need to understand is that a breach of the bond effectively limits the number of sanction options open to me because of the nature of s 112AD(2). Logic dictates that although there is a discretion not for making any of the orders, a breach of this bond would make that an improbable outcome. Similarly, if a bond is breached, a further bond would seem an improbable outcome as well. The wife will need to take into account that the remaining options to which I have earlier referred are draconian by comparison.

8. Similarly, it is the wife’s prerogative to enter into the bond.  A failure to enter into the bond would place the court in a position where the options are limited.  The wife needs to make an election in relation to that and to obtain some advice about it.

9. Finally, the wife needs to understand that she is obliged to comply with orders of the court because to do otherwise for the reasons which are set out in the bond which I propose to attach to these reasons, may amount to a breach as well.  I certainly propose to make an order that she comply with all orders of this court.

10. As I understand the position, the wife resides in the Geelong area.  I propose to have her execute the bond in the presence of her solicitor.  On the basis that the wife’s signature is witnessed by her solicitor, I will presume that the practitioner has explained to the wife the terms to which I have just referred.

11. If the wife chooses not to enter into a bond by 4.00pm on 28 May 2010, I shall have the matter relisted for determination according to law.

12. At the conclusion of the case, senior counsel for the husband made an application for costs.  He pointed to all of the arguments that one would expect in such a case.  Counsel for the wife responded and urged me not to make an order for costs.

13. Section 117 of the Act requires that each party pay their own costs. The exception to that rule is where the court is satisfied that there are circumstances that justify a departure from the rule. If a court decides there are such circumstances, it must take into account the matters set out in s 117(2) of the Act.

14. The husband’s argument was that having regard to the lack of response by the wife to his correspondence in his endeavours to ascertain whether the wife was complying with the orders, he had no choice but to issue the proceedings.  It was put eloquently by senior counsel for the husband that he had incurred significant costs just as an endeavour to resolve the problem.

15. This is an unusual situation in which it was difficult for the husband to find out whether the wife was complying with an order save in two circumstances.  The first is that it may have been apparent from the contact between the husband and the wife as to whether she was in fact having treatment.  The second is that the wife was required and I am satisfied did, authorise her treater to tell the husband about any failure.

16. It seems to me however that the husband was more concerned about whether the wife was attending and whether the treating psychotherapist was fulfilling her obligations rather than whether the treatment was successful.

17. On balance, there is a justification for departing from the principle in s 117(1).

18. However, when I turn to the matters in s 117(2A), I am obliged to take into account a number of matters.

19. The first of the mattes relates to the financial circumstances of each party to the proceedings. No evidence was presented to me as to the financial circumstances of the husband although I can conclude that having regard to the fact that he had lawyers acting for him including the briefing of senior counsel, and the fact that he described his occupation as senior public servant, he has at least reasonable financial circumstances.  I was also told that there are still pending proceedings before the Full Court in respect of the substantive judgment and that there were proceedings as late as last week in some associated matter before the Full Court.  Those matters lead me to conclude that the husband’s financial circumstances are at least comfortable.

20. I have no evidence about the wife’s financial circumstances other than that she has significant costs outstanding to her lawyers and she said in evidence that it was not the case that she had to sell her house.  Senior counsel for the husband cross-examined the wife about what payments she had made to her lawyers over the period from June 2009 and on any view, it was modest.  It was confirmed by the wife that she is receiving considerable maintenance and child support from the husband on a weekly basis.  I have no evidence however as to how she expends those funds.

21. There was no suggestion that either party was in receipt of assistance from a legal aid grant. 

22. I have already found that the wife breached the order.  The question is whether these proceedings were necessitated by the failure of the wife to comply with the order. There is clearly a distinction between the necessity to issue proceedings and sorting the matter out in some other way where the husband’s time with the children was apparently not affected.  Having regard to the fact that the proceedings were issued in April at a point in time when the wife was already seeing Mr MY and the husband was aware of that, I do not find that the proceedings were entirely necessitated by the failure of the wife to comply with the order.  It seems to me that there were still prospects that the issues as between the parties could have been sorted out particularly having regard to the evidence of Mr MY that he was content with what the wife was doing and the evidence of Ms W that she had handed on the baton to Mr MY.

23. Section 117(2A) also requires that I take into account whether any party to the proceedings has been wholly unsuccessful in the proceedings. Neither party was wholly successful and neither party was wholly unsuccessful.

24. Counsel for the wife complained at the start and at the conclusion of the proceedings that the wife was being put in an invidious position because she was being persecuted.  I reject that.  I do not know on the evidence what motivated the husband to bring the proceedings.  If there was an ulterior motive, it was certainly not apparent.  My only concern was the fact that the proceedings may have been precipitous having regard to what had occurred in February 2010 for the wife to move to Mr MY.

25. In all the circumstances, this is not a case in which I would exercise my discretion and give the husband his costs. 

I certify that the preceding Seventy Nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  21 May 2010