Naima and Farina

[2018] FamCA 470

FAMILY COURT OF AUSTRALIA

NAIMA & FARINA [2018] FamCA 470

FAMILY LAW – CONTRAVENTION – where the Applicant seeks to prosecute one alleged contravention – where the Respondent seeks that the contravention be summarily dismissed – where the Applicant has not established the Respondent intentionally failed to comply or made no reasonable attempt to comply – where the Application is dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Naima

RESPONDENT: Ms Farina

INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Mediation & Family Law

FILE NUMBER: BRC 9358 of 2014

DATE DELIVERED: 22 June 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 27 March 2018, 27 April 2018

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Galloway

SOLICITOR FOR THE RESPONDENT: Maguire Barnes Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr Taylor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Carter Farquar Mediation & Family Law

Orders

IT IS ORDERED THAT

1. The Application – Contravention filed 23 February 2018 is dismissed.

2. The Application in a Case filed on 15 March 2018 is dismissed.

AND IT IS FURTHER ORDERED THAT

1. In the event that any party seeks an order that the other party pay his or her costs:

   (a)if thought necessary by a party, that party has leave to file a further affidavit by that party containing any evidence relevant to the issue of costs and one other affidavit in support of the same, provided that such affidavits are filed within twenty-eight (28) days of the date of this order; and

   (b)any such party shall file and serve any written submissions in support of such application for costs within twenty-eight (28) days of today; and

   (c)the party against whom an order for costs is sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

   (d)the party seeking an order for costs shall file and serve any brief further written submissions within seven (7) days of its service, strictly in reply to the submissions served by the party against whom an order for costs is sought,

   and any such application for costs shall be considered in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Naima & Farina has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC9358 of 2014

Mr Naima

Applicant

And

Ms Farina

Respondent

And

The Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By an Application – Contravention filed 23 February 2018, the father alleges that, on 17 February 2018, the mother contravened Orders 9(b)(ii) and 9(c) of Orders made by consent on 6 December 2017 by refusing to allow him (that is, by refusing to provide the child) to spend time with the parties’ daughter, the child.[1]

   [1] Born 2009.

2. The father also alleges that the mother also refused to accept the solution he suggested to resolve the issue that had arisen and ignored the advice provided by the Independent Children’s Lawyer to allow the visit to occur.[2]

   [2] Whilst the father makes general allegations in his affidavit about other instances of the mother’s alleged failure to comply with the terms of the December 2017 order, these are not the subject of particularisation in his Application-Contravention and, accordingly, are not the subject of consideration in the disposition of this Application.

3. As no term of the December 2017 order obliges the mother to accept solutions proffered by the father, the mother cannot have contravened the order by refusing his suggestion. Similarly, as no term of the December 2017 order obliges either party to accept advice provided by the Independent Children’s Lawyer, the mother cannot have contravened the order by ignoring the position advanced by the Independent Children’s Lawyer.

4. Whether the manner in which the mother responded is otherwise relevant depends on the conclusions reached about the allegation that she contravened the December 2017 order on 17 February 2018 by failing to provide the child to spend time with her father.

5. It is accepted that the child did not spend time with her father on 17 February 2018.

The relevant terms of the December 2017 Order

1. Orders 9(b)(ii) and 9(c) of the 6 December 2017 order are as follows:

   9. The Child shall spend time with the Father, unless otherwise agreed in writing, as follows: …

   b. on 17 February 2018 for two (2) hours with such time to be supervised:

   i. by staff at Y Contact Centre Suburb Z and occur at Y Contact Centre Suburb Z, if that service can make itself available and is available; but, in the event that Y Contact Centre Suburb Z cannot provide that service then

   ii. time shall occur at the McDonald’s Restaurant, Suburb C under the supervision of either Mr K Farina or Mr X; and thereafter

   c. for two (2) hours every eight (8) weeks thereafter, commencing on the third Saturday in February (or such other date as notified by the Contact Supervision Service), with the first two (2) occasions to occur at Y Contact Centre at Suburb Z and, thereafter, at McDonald’s Restaurant, Suburb C (or such other venue as is agreed between the parties) and be supervised by Y Contact Centre or such other professional supervision service, or private individual, as is agreed in writing between the parties …

What happened after the December 2017 order was made?

1. A number of relevant events post-dated the December 2017 order and preceded the alleged contravention on 17 February 2018.  They are as summarised below.

9 December 2017: the father completes his intake at Y Contact Centre

1. On 9 December 2017 (three days after the December 2017 consent order was made), the father completed his intake with Y Contact Centre.  He sent a confirmation email to the mother’s solicitor and to the Independent Children’s Lawyer that day to advise he had completed his intake.[3] He also confirmed to the parties that he was using a new email address (namely, that which he emailed them from).

   [3] Affidavit of the father filed 23 February 2018, Annexure “MEEN-1”.

30 December 2017: the mother completes her intake at Y Contact Centre

1. On 30 December 2017, the mother completed her intake with Y Contact Centre. She was provided with a copy of their Service Agreement, which she signed. She said that, during her intake session, she was told by “Ms HH” from Y Contact Centre that, based on the interviews with the parties, the father’s contact session with the child would be “therapeutic contact” and would require the worker to be involved at a high level of supervision to assist.  The mother also said that Ms HH told her that travel away from the Contact Centre was only to the local area (usually to Suburb Z Shopping Centre), that there would be no travel in private cars or public transport and that the child would have to be returned 15 minutes prior to the end of the visit. In summary, the McDonald’s Restaurant at Suburb C would not be a location where the visit/s could occur.

2. I note, in passing, that the 6 December 2017 order provides that each party shall, within fourteen days of the date of the order, make contact with Y Contact Centre and complete all documentation necessary to proceed with an intake by that service.  The father appeared to contend that, as the mother did not complete her intake session until 30 December 2017, she had failed to comply with a requirement to complete the same within fourteen days of the date of the order.

3. As this assertion does not form the basis of any allegation of contravention, it is unnecessary to consider it further.

1 January 2018: the father emails about the intake session

1. On 1 January 2018, the father emailed the mother’s solicitor (copied to the Independent Children’s Lawyer) to enquire whether the mother had yet completed her intake.[4] He said he needed to know the venue for the next visit. The father’s evidence is that he did not receive a response to his request.

   [4] Affidavit of the father filed 23 February 2018, Annexure “MEEN-2”.

3 January 2018: Y Contact Centre advises the parties that contact will be “therapeutic”

1. On 3 January 2018, Y Contact Centre sent the parties an email to tell them that the intake process had assessed the child as requiring therapeutic contact.[5] The email contained information which included that this would mean that the supervisor would be highly involved in the session, could do individual work with the child before, during and after the session and when required. Y Contact Centre also advised that the “therapeutic” level of supervision may change to “regular” supervised contact as time progressed and that Y Contact Centre would continually assess this and would advise if the basis on which the sessions were to occur would change.

   [5] Affidavit of the father filed 23 February 2018, Annexure “MEEN-3”.

2. The parties were told that Y Contact Centre could facilitate time between the child and her father from 1.00 pm to 3.00 pm on 17 February 2018.

3. Nothing in the December 2017 order provides for Y Contact Centre to determine that the child’s supervised time with her father was to occur via a “therapeutic” engagement; nothing in the order permitted Y Contact Centre to assume any responsibility for doing anything other than providing a supervisor to supervise the child’s time with her father.

20 January 2018: the father learns of the 3 January 2018 Y Contact Centre’ email

1. As the Y Contact Centre’ email had been sent to his old email account, the father did not learn of it until 20 January 2018. He replied that day to confirm his availability for 17 February 2018. He noted that the mother’s solicitor had sent all orders and the Family Reports to Y Contact Centre and advised that he just wanted to follow the orders: “nothing less or more”.[6]

   [6] Affidavit of the father filed 23 February 2018, Annexure “MEEN-3”.

2. On 20 January 2018, the father emailed the Independent Children’s Lawyer about the 3 January 2018 Y Contact Centre’ email.[7] He raised that what Y Contact Centre was suggesting (presumably, the “therapeutic” contact) was the opposite of that which had been suggested by the author of the Family Report. He outlined, amongst other things, that he had not heard from the mother or her solicitor about this issue and expressed that his biggest concern in using a Contact Centre was that history would be repeated and the mother would manipulate the situation again.  

   [7] Affidavit of the father filed 23 February 2018, Annexure “MEEN-3”.

3. The father said he did not know the mother’s position regarding Y Contact Centre’ suggestion of “therapeutic” contact because Y Contact Centre did not disclose this due to “confidentiality”. 

6 February 2018: the father advises Y Contact Centre he wishes to cancel their service

1. On 6 February 2018, the father was advised by Y Contact Centre via email that their payment policy had changed.[8] He confirmed that he would pay cash on the day for the visit.  The fee for the two hour visit was $484.00 inclusive of GST (namely, $242.00 per hour). The fee was to be paid equally amongst the parties.

   [8] Affidavit of the father filed 23 February 2018, Annexure “MEEN-4”.

2. That day, the father received a further email from Y Contact Centre (addressed to both parties).[9]  The contents of this email included that both parties had confirmed their attendance from 1.00 pm to 3.00 pm on 17 February 2018.  It reiterated that, as Y Contact Centre had assessed that the child will require “therapeutic” supervision, there would be a high level of involvement from the supervisor in this session. The mother was asked to arrive with the child at 12.55 pm – it was said it was hoped she would be able to leave after about 10 minutes, but this would be flexible in order to meet the child’s needs on the day. The email also advised that the child would then spend around 20 minutes getting comfortable with the Centre and the supervisor; the father was asked to arrive at the Centre at 1.45 pm and he would be told by the supervisor how the child was and what to expect on seeing her: he and the child would then spend time together until 3.00 pm (that is, for no more than about 1¼ hours), when the mother was to arrive to collect the child. Y Contact Centre also advised that no persons other than the father would be allowed to participate in the time, which would occur “onsite”.

   [9] Affidavit of the father filed 23 February 2018, Annexure “MEEN-5”.

3. The father replied to the Y Contact Centre’ email. He outlined that the December 2017 order permits him to spend two hours with the child. He said he was not comfortable going through “this steps again” as that process had not worked previously; he thought the process would not work then as “the manipulation” would continue.[10] The father also noted that the orders were clear and that the most recent Family Report had recommended that orders be made to remove pressure from the child.

   [10] Affidavit of the father filed 23 February 2018, Annexure “MEEN-5”. 

4. The father concluded his communication with Y Contact Centre by asking that, if the Centre could not facilitate the two hours for him, his partner and her children to spend time with the child, they let him know this, as the order allowed him, his partner and her children to spend time at McDonald’s Suburb C.

5. On 6 February 2018, the father also emailed the mother’s solicitor (copied in to the Independent Children’s Lawyer) to advise that the next visit with the child would occur on 17 February 2018 from 3.00 pm to 5.00 pm at McDonald’s Suburb C and that he, Ms S and her children would be in attendance.[11]

   [11] Affidavit of the father filed 23 February 2018, Annexure “MEEN-6”.

7 February 2018: Y Contact Centre emails the mother

1. On 7 February 2018, the mother received an email from Y Contact Centre to advise that the father had told them he was unable to follow their guidelines for the first visit (as set out in their previous email).[12]

   [12] Affidavit of the mother filed 15 February 2018, Annexure “LKF-5”.

2. Y Contact Centre noted that, whilst the Service Agreement had been signed by both parties, the father’s unwillingness to abide by the terms of contact as prescribed by section 3.8 (which requires that a client must comply with all instructions of the service and/or the supervisor in relation to meeting locations and arrival/departures) and section 5.18 (which provides that other persons will only be allowed to attend the contact session at the supervisor’s discretion) of the same meant that Y Contact Centre was unable to provide the service of supervision of the child’s time with her father.

3. I am not persuaded that Y Contact Centre remained available to provide the service of supervision. As discussed with Counsel for the mother during the course of the appearances before me, nothing in the December 2017 order provides that the child’s time with her father be “therapeutically” supervised; this is consistent with the basis on which the parties proceeded to reach agreement (as recorded in the Notation made in the December 2017 order). Nothing empowered Y Contact Centre to seek to impose conditions over the child’s time with her father. Given this, I consider that it was open to the father to refuse to accept the conditions Y Contact Centre sought to impose when the same did not accord with the terms of the December 2017 order; that Y Contact Centre did not accommodate the terms of the order about the manner in which the child’s time was to be supervised meant that it could not provide the service that was contemplated by the terms of the December 2017 order.

4. It is clear then that, by no later than 7 February 2018, both parents knew that the time between the child and her father which was due to occur on 17 February 2018 would not occur at Y Contact Centre. This meant, in my view, that, as was provided for in the December 2017 order, the time on that day was to occur at the McDonald’s Restaurant, Suburb C under the supervision of either Mr K Farina or Mr X.

8 February 2018: the mother says Mr K Farina and Mr X are unavailable

1. On 8 February 2018, the mother swore/affirmed an affidavit. This was later filed on 15 February 2018 in support of her Initiating Application filed that day.

2. Whilst the mother’s evidence in that affidavit includes her contention that the father was relying on his own default in not complying with the Y Contact Centre Service Agreement to have his time with the child at McDonald’s Suburb C in the company of either Mr K Farina or Mr X (despite Y Contact Centre identifying the need for a “hands on” supervisory role), as already noted, nothing in the December 2017 order provides any basis or imprimatur for the attempt by Y Contact Centre to impose conditions over the child’s time with her father.

3. In her affidavit sworn/affirmed 8 February 2018 (filed 15 February 2018), the mother said that Mr X had recently had an operation to both his ankles (which saw them pinned and fused); she said his most recent operation was “only two weeks ago”[13] (that is, around 25 January 2018). She advanced that he was unable to supervise the visit due to ill-health. The mother also gave evidence that her son (Mr K Farina) and his partner were expecting their first child. She said that Mr K Farina’s partner was to be induced on 16 February 2018 and, as such, he was also unable to supervise the visit on 17 February 2018.

   [13] Affidavit of the mother filed 15 February 2018 at [20].

4. When asked at trial how she knew, ten days before the visit, that her father was not going to be available to supervise the 17 February 2018 visit, the mother said she had assessed her father’s medical state and had concluded he was not capable of supervising the visit; she said she knew “time-frames” for recovery and had assessed that he was not going to be mobile enough to supervise the child’s time with her father on 17 February 2018. She explained that she had seen her father every day at that time, could see that he still had a boot on his foot and was still very unwell so she assessed that he was not appropriate to do the visit at that point. She accepted she had assumed Mr K Farina would not be available because of the 16 February 2018 appointment referred to above.

5. After the father asked the mother’s solicitor to provide evidence of Mr X’s admission to hospital for his medical condition, Mr X provided an affidavit[14]  in which he said that he had been admitted to II Hospital on 12 February 2018 and discharged on 27 February 2018. He also said that a letter detailing his admission and discharge dates from the hospital would be provided at the hearing of the matter.

   [14] Affidavit of Mr X filed 12 April 2018.

6. Mr X gave evidence that he was first admitted into hospital via the Emergency Department on 11 February 2018, but was discharged later that day. However, he returned the next day by ambulance and was readmitted. He remained in hospital until 27 February 2018. His evidence was that his admission to hospital was unexpected. The reason for it was that he suffered a significant staph infection, which originated in his left ankle. His condition was still not fully resolved at 27 April 2018.

7. Given Mr X’s evidence about his admission to hospital – which I accept – the reality is that he was not available on 17 February 2018 to supervise the child’s time with her father. This reality means that it is unnecessary to consider further whether the mother had a proper basis in advancing on 8 February 2018 that he would not be available for the 17 February 2018 visit.

1. Mr K Farina’s evidence is that his partner was due to give birth on 16 February 2018. He said that, after they attended at the hospital earlier that week, they were informed that, if there was no progression, she would be induced that Friday (presumably, Friday 16 February 2018). He said that, on Friday, 16 February 2018, his partner experienced early signs of labour; they went to the hospital at 8.00 am on 17 February 2018 and remained there until 3.00 pm that afternoon, at which time they were sent home and told to return when his partner’s contractions were closer together or if her pain became too great. They in fact returned to hospital at 11.00 pm on 17 February 2018, at which time his partner was admitted. Their child was born at 10.30 am on Sunday, 18 February 2018.

2. I accept the evidence given by Mr K Farina. I am not persuaded, in the circumstances as he outlined them, that he was available to supervise the child’s time with her father between 3.00 pm and 5.00 pm on 17 February 2018.

15 February 2018: the father emails the mother’s solicitor

1. On 15 February 2018, the father emailed the mother’s solicitor to advise, amongst other things, that he would be attending McDonald’s Suburb C to spend time with the child from 1.00 pm to 3.00 pm; he confirmed that his partner and her children would be attending and advised that, if Mr X or Mr K Farina did not bring the child, he would consider that a breach of the orders and would file a contravention application.[15]

   [15] Affidavit of the father filed 23 February 2018, Annexure “MEEN-7”.

2. The father also sent another email to the mother’s solicitor and the Independent Children’s Lawyer that day. In it he outlined, in essence, his contention that, in December 2017, the mother should not have advanced Mr X or Mr K Farina as supervisors if she was not sure they could perform that role.

3. He also advised that he had contacted Mr FF and Ms EE Farina (the mother’s ex partner’s parents), who were happy to supervise the visit at no cost, were available for the upcoming Saturday and were available to supervise any further visits if required; he noted that Ms EE Farina had previously been nominated by the mother for a previous visit and this was successful; he advised that he was awaiting confirmation from the mother’s solicitor before the close of business on 15 February 2018 (so he could advise Mr FF and Ms EE Farina) and that he had booked McDonald’s Suburb C’s private room for the visit.[16]

   [16] Affidavit of the father filed 23 February 2018, Annexure “MEEN-7”.

16 February 2018: the mother informs that the child will not attend the visit

1. On 16 February 2018, the father emailed the mother’s solicitor and the Independent Children’s Lawyer again in an attempt to resolve the issue before the visit the next day; he advised that Ms EE and Mr FF Farina were still willing to assist with the visit the next day but needed confirmation (as they would have to travel); he asked that the mother confirm if she would provide the child to them the next day at McDonald’s Suburb C.

2. The Independent Children’s Lawyer replied to the father’s email to say that the time should happen as per the orders. He advised that, if there was disagreement about the orders, the parties should seek to reach an agreement and that he would agree with anything reasonable that promoted contact. The Independent Children’s Lawyer urged the parties to talk to resolve the impasse.

3. The mother’s solicitor informed the father that the mother would not be bringing the child to McDonald’s Suburb C as requested on 17 February 2018.[17] It was advanced that, as the father had advised Y Contact Centre he was not prepared to comply with their terms of engagement, they had cancelled the visit. The mother advanced that the father had chosen to try to invoke the default provision to rely upon either Mr K Farina or Mr X to supervise the child’s time with her father. The correspondence specifically referred to paragraph 20 of the mother’s affidavit (dated 8 February 2018) in advising the father that neither Mr K Farina nor Mr X were available. The father was told that, given these circumstances, the mother rejected any suggestion that she was in breach of the order; the father was advised that the mother would seek costs when she was successful in defending any application for contravention he might bring.

   [17] Affidavit of the father filed 23 February 2018, Annexure “MEEN-7”.

4. The mother’s solicitor also informed the father, in this correspondence that the mother had applied to the Court to vary the order to ensure that the child’s future visits with him were supervised by an independent organisation.

17 February 2018: the day of the visit prescribed under the December 2017 orders

1. I accept that the father, his partner and her children attended at the private room at McDonald’s Suburb C on 17 February 2018. As already noted, I accept that the child did not attend to spend time with her father that day.

Further Discussion

1. It is clear that when, as here, there is an order in force in relation to a child to the extent to which the order deals with whom the child is to spend time, a person must not hinder or prevent a person and the child from spending time together in accordance with the order[18] or interfere with a person and the child benefiting from spending time with each other under the order.[19]

   [18] s 65N(2)(a) of the Family Law Act 1975 (Cth).

   [19] s 65N(2)(b) of the Family Law Act 1975 (Cth).

2. Given that it is uncontroversial that the child did not attend to spend time with her father on 17 February 2018, the dispute is whether the mother contravened the order. She will have done so if, and only if, she intentionally failed to comply with it or made no reasonable attempt to comply with it.[20]

   [20] s 70NAC of the Family Law Act 1975 (Cth).

3. Given my findings that neither Mr X nor Mr K Farina were in fact available to supervise time on 17 February 2018, I am not persuaded that the father has established that the mother intentionally failed to comply with the December 2017 order or made no reasonable attempt to comply with the term which required that one of them supervise the child’s time with her father on 17 February 2018. Consequently, his Application for Contravention will be dismissed.

4. So that there is no confusion, I will also dismiss the mother’s Application that the father’s Contravention Application be summarily dismissed.

5. I do wish to record, however, that during her cross-examination at the hearing, the mother said that, despite knowing that Mr K Farina’s partner was due to give birth in February 2018, she still suggested that he be a supervisor; she also said, in essence, that whilst she knew Mr K Farina would not be available to supervise the child’s February 2018 interaction with her father (and, likely, others given his own parenting responsibilities following the birth of his child), this was not prohibitive because she understood that all visits other than the first one would be at a Contact Centre. Such evidence certainly provides a basis for the father’s contention that the mother deliberately suggested a supervisor whom she thought would not be available.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 22 June 2018.

Associate: 

Date:              22 June 2018