Ongal & Materns (No 2)

[2017] FamCA 144

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS (NO 2) [2017] FamCA 144

FAMILY LAW – CHILDREN – With whom a child spends time – Orders – Contravention – where applicant father has been given leave to bring an application for contravention – where father alleges two counts of contravention – where the mother denies any contravention – where court one was dismissed by the Court due to lack of evidence – where count two was dismissed as the father failed to make out a prima facie case – where the Court held there was an informal agreement between the parties and no contravention of Orders

Family Law Act 1975 (Cth) s 70NBA

APPLICANT: Mr Ongal

RESPONDENT: Ms Materns

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 2107 of 2007

DATE DELIVERED: 3 February 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 3 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Litigant In Person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Litigant In Person

SOLICITOR FOR THE RESPONDENT:

Orders

1.The Application for Contravention filed by the father on 3 February 2017 and pursuant to leave given by me on 2 February 2017 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ongal & Materns (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2107 of 2007

Mr Ongal

Applicant

And

Ms Materns

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matter comes before the Court today in respect of an application alleging contravention of Orders made on 4 December 2013 but properly to be read in conjunction with orders made by the Full Court on 30 April 2015.  For reasons that will become apparent, the amendment to what I might describe generically as the operative Orders of 4 December 2013 are not materially altered by the amendment to the order made by the Full Court on 30 April 2015. 

2. The application for contravention and the affidavit in support have now been filed as separate documents.  Those documents first appeared on the Court file as annexures to the father's affidavit of 20 September 2016 filed in support of his application for leave to institute proceedings.  I do not propose to supplement the lengthy extempore reasons that I provided yesterday afternoon in granting leave to Mr Ongal (“the father”) to bring the application for contravention. 

3. It should be stated, however, that notwithstanding that the application for contravention and the affidavit annexed to his affidavit of 20 September 2016 were annexures, care had been exercised by the father to ensure that the documents were comprehensive and complete and that notwithstanding that they were annexures, the documents were the subject of execution on oath by the father.  The affidavit was described as being the affidavit in support of the application for contravention. 

4. There are two counts that have been identified in the application and the matter has proceeded in respect of both counts.  The first count appears as a combination of paragraph 6 and 7 and the second count as a combination of paragraph 8 and 9 of the contravention application. 

5. The first count is that by reference to 8(c) and 8(f) of the operative orders it is alleged that on 19 September 2016 at 11.00 am and at Town W Ms Materns (“the mother”) denigrated the father in front of M and sought to alienate M from the father to the doctor.  In respect of count 1, the mother entered a not guilty plea. 

6. In respect of the second count the allegation is that there has been a breach of 3(b) of the operative orders in that the mother refused to give M contact with his father for Thursday to Monday commencing on 15 September 2016 and concluding 19 September 2016 and from 3.25 pm at the N School or at various handover locations.  In respect of count 2, the mother entered a not guilty plea. 

7. There was no application by the mother by way of preliminary application and the hearing has proceeded on the basis of some assistance provided by me to the applicant father and the respondent mother consistent with their attendance before the Court as self-represented litigants.  I say that notwithstanding that the Court file reflects a long history of litigation and it might be said that the parties have a greater knowledge of the Court process and proceedings than many others would have, but it is not appropriate for the Court to rely on that assumption. To do so may well minimise the very real concern and impact that each of the parties feel, firstly, about the dispute in general but, secondly, in respect of the proceedings that bring them before the Court today. 

8. Out of an abundance of caution, but perhaps more reflective of the need for the Court to afford and accommodate the parties the highest level of courtesy, care was taken to take the parties through the process and procedure in terms of a contravention application and how it would be run.  The father was the applicant and accordingly he was advised that, subject to any preliminary application, and there was not one, he would take his place in the witness box, he would be sworn in and he would give any evidence that he would wish consistent with the matters at hand but necessary to supplement, if it was considered inadequate, the detail as set out in the affidavit material that he filed in support of the application. 

9. In that respect, the applicant father took that opportunity and there are two exhibits that have been filed which the father seeks to incorporate into his case.  He was also advised, as was the mother, that he would then be the subject of cross-examination and he would have an entitlement then to give evidence in re-examination in respect of those topics that have arisen during the cross-examination and may be necessary not because there was a level of unfairness created by any question but in order to assist the Court in the better understanding of the issues at hand. 

10. The respondent mother approached the cross-examination of the father by reference, firstly, to count 1 and then count 2.  I indicated to the parties that at the conclusion of the father's cross-examination consideration would be given as to whether there was a case to answer.  If there was, the mother would then have to determine whether she would wish to give evidence and if so she would be cross-examined or whether she would determine not to give evidence, in which case the Court would then have to give consideration to whether the evidence, as presented by the father, was sufficient to discharge the onus and the obligation that he has to establish that there has been a prima facie breach of the order.  If he was able to do that, it would then be a matter for the mother to satisfy the Court either by the giving of evidence or by submissions that she has a reasonable excuse or that there is some other reason why the non-compliance, if found to be so, is capable of explanation. 

Count 1

1. 8(c) and 8(f) are in the following terms:

   The father and the mother are each restrained and an injunction is hereby granted restraining each of them from abusing or denigrating the other parent to the children or in the presence of the children from permitting any other person to do so.

2. And 8(f): 

   In seeking to alienate the children from the other parent.

3. The thrust of the evidence of the father as set out in the affidavit is to be found commencing at paragraph 18 and concluding at paragraph 22.  Annexure A to the father's affidavit was the subject of exploration by the respondent mother, but the focus was upon a note of 19 September 2016 presumably kept by the doctor in the following terms:

   Progress notes, [M], date of birth …2004.  Monday, September 19 2016 11:29:42.  [Dr O].  Boy come with mum and started crying.  He says he did not want to go with his dad.  He abusive all the time.  Dad he is there in the school to take him.  He scared about dad and forcefully take him so.  I told the mother to involve the police and take their help.  Breathing fine.  Neuro obs fine.  No tummy upset or cramps.

4. There are some further notes in respect of the management based upon the child's presentation. 

5. The relevant paragraphs refer to the father and his partner attending upon the doctor's office and discussing the matters as set out in the note, with presumably an attempt by the father to understand the genesis of that note.  Put simply, the father underpins his allegation in count 1 on the basis that whilst the doctor may have recorded accurately what was said, it was either said by the mother to the doctor or that in some way she forced the chid to say it.  Paragraph 20 says:-

   [20]The doctor informed my partner and I that the mother brought [M] in and he was highly distressed, crying and shaking, could not speak.  The mother spoke for him and made various claims about me that are false.  The doctor has informed that she met [M] before and she knew he was normally a very happy boy.

6. The ability of the father to prove the underlying detail in respect of count 1 stands or falls on how the Court would consider the content of paragraph 20.  If the Court was able to accept that the doctor's evidence is that it was the mother who spoke for the child and that is what is reflected in the doctor's notes, then it may be possible, but not necessarily inexorably so, to draw the conclusion that that which was said by the mother to the doctor would be sufficient to raise a prima facie case that there has been a breach of order 8(c) but I suspect less likely for order 8(f).  Order 8(c) could only stand if M was present at the time that the mother allegedly said to the doctor those matters referred to by the father in paragraph 20 and set out in the note at annexure A to his affidavit.

7. The difficulty for the father is that whilst he says that this is what the doctor told him, he was not present obviously at the time of the interaction between the child and the doctor and he relies on the Court accepting what he says the doctor said to him when he subsequently went to the doctor's rooms with his partner.  The doctor was not called and there was a concession by the father that the doctor has indicated her unwillingness to attend.  In any event, it seems to me clear that without the doctor's direct evidence that it was the mother who spoke the words recorded, there is no possibility that count 1 could succeed and therefore there is nothing for the respondent mother to answer.  I dismiss count 1.

Count 2

1. Count 2 relates to a consideration of whether there has been a breach of order 3 of Orders made 4 December 2013.  There is some connection between the issues that I have to determine in respect of whether a prima facie case has been made out in respect of a perceived breach of order 3(b) which should also bring to account the more modest amendment to 3(b) by the order of 30 April 2015.  I do not consider that, notwithstanding that order has not been relied upon by the applicant father, that that is in and of itself fatal to the application. 

2. It is difficult to understand exactly what this is about, but there appears to be a concession by the applicant father that L, on 15 September 2015, had an orthodontic appointment.  It is not certain whether that in and of itself is relied upon by the mother to assert that because the child had a reasonable commitment against some history of orthodontic management by the dental hospital situated at Adelaide, that in some way that creates an impediment to there being a contravention in respect of it.  That is an interesting issue and one that I have had cause of recent date to consider.  My view is that in circumstances where there is a change or an alteration to a contact arrangement, it thereafter renders it difficult to pursue a contravention in those circumstances.  A number of issues arise. 

3. The first is whether the father understood or knew, as is alleged by the mother, that the child had an appointment in September and that, in a general sense, because of some understanding that the father may have had about how the dental hospital arranges its appointments, not just in respect of this child but in respect of other persons who utilise their services, that that was likely to be on a Thursday or a Friday.  The mother may well be correct, but the father's position in evidence is that he was not aware of this appointment and whilst he conceded that he was generally aware of the child having orthodontic treatment, and indeed in the early appointments arrangements were made that he would collect the child at the conclusion, nonetheless he was not aware of the appointment on 15 September 2016. 

4. Moreover, paragraph 4 of his affidavit refers to a message that the father received from the mother's phone on 13 September 2016 which he restates in paragraph 4 as being a message that was meant to be attributed to something that his son L had sent.  The message is in the following terms:

   Hey dad, it's [L].  I don't want to go to you for the weekend and neither does [M].  It's got nothing to do with mum.  I've just got no credit so I couldn't tell you on my phone.

5. I am not entirely sure I understand the forensic importance of that message given that it allegedly emanated from L and not M, but the father's opposition or concern in respect of the message is more fundamental.  What he says is that he thinks this did not come from L at all, but rather it was simply a message by the mother purporting it to be from L and that his reason for that is based upon the language of the message.  A further message was received by the father on Thursday at 7.38 am advising that “there’s  no point coming down to [Town W] because [M] has got his orthodontist appointment in Adelaide and I am staying with my friend." 

6. It seems to me that what the father is really concerned about is not that there was an orthodontic appointment, because the history of the matter on his case is that where that has occurred in the past an arrangement has been arrived at where the time that he spends with the children, but M in this case, is amended such that it commence after or at the conclusion of the orthodontic appointment. 

7. The gravamen of the father's application is to be found in paragraph 12 of his affidavit where he says that the mother made the appointment for M to obtain orthodontic treatment deliberately, understanding that in doing so that would interfere, at least to some degree, with the father's time which she understood pursuant to the orders was to commence on Thursday.  It seems to me that if that is where the matter rested it would be reasonable to find that the father has made out a prima facie case, albeit not necessarily a strong one, and it would be for the mother to give evidence if she wished as to whether that contention, namely that there was a deliberate arrangement put in place by her with at least one intention being, the principal intention being, to disrupt the father's time. 

8. There is no apparent disagreement or controversy as far as the father is concerned that there was actually an orthodontic appointment.  The issue must be the extent to which the father was kept informed about that, or knew about it, or should have known about it and whether in any event it was done in a way to deliberately disrupt the father's time. 

9. As I have indicated, if that is where the matter rested, then it would be reasonable to find that the father had made out a prima facie case.  The issue, however, is more complicated than that.  In his evidence the father revealed, and it appears from the questions that the mother was asking that she agrees, that prior to September of 2016 the parties had negotiated a private and informal agreement in respect of the parenting arrangements. 

10. The father had a particular view as to how the informal agreement was structured.  To some extent, whilst not necessarily something about which I agree, I at least accept his genuine understanding, that in order to advantage the children the parties considered that limiting the frequency of the periods of handover would assist them. 

11. The father says that order 3(a), which provided for time that the children would spend with the father from Thursday until Friday, was effectively tacked on to 3(b).  At first, I had some difficulty in understanding what was being put to me by the father, but upon his further explanation it became clear that the informal arrangement between the parties, or at least the formal arrangement but without formality in the sense of altering the orders of the Court, was that the children would spend time with the father each alternate week from 3.25 pm on Thursday until 8.50 am on Monday and then from 3.25 pm on Monday, the same Monday, until 8.50 am on the following Tuesday.  The manner in which that occurred was significant, at least to the father, because there was clearly a gap in the responsibility for the children between 8.50 am and 3.25 pm on Monday.  If something had happened to one or other of the children whilst they were at school on that Monday the responsibility would revert to the mother, otherwise during the period Thursday to Monday morning and Monday afternoon to Tuesday morning the responsibility would rest with the father. 

12. Whilst, for my part, I consider that the parties by their informal agreement effectively suspended 3(a) and amended 3(b), I accept that in the father's mind it was a transfer of the same hours but to try and remove and reduce the number of handovers, transitions and the opportunity for each of the parties to have to deal with each other or the children to have to deal with the transitions.  There was apparently some formality to the agreement in that both the mother by her questions and the father by his answers agreed that there is a document which sets this out and, importantly, that the document gave an exit clause to either of the parties that if the agreement was not working, then the parties would revert to the formality of the Orders made on 4 December 2013 as amended by the Orders of the Full Court of 30 April 2015, and indeed the penultimate answer of the father in cross-examination was that he did exercise that option to exit the agreement and revert to the orders after the alleged breach in September.  Presumably because of the breach, the father considered it was then appropriate to go back to the orders so that there would be no misunderstanding between the parties as to how it would operate and how the children would spend time with each of their parents. 

13. The concern I have focuses on the nature of contravention proceedings.  They are punitive by nature and they require a level of proof and precision in their terms and detail that is not normally the case when the Court considers parenting arrangements between parties.  The Court is not entitled to assume a knowledge of an order and if there is any uncertainty or lack of clarity either in the order or as a result of agreement, discussion or action or activity by a party, then it is difficult to see how there can be the requisite proof necessary to establish that a prima facie case exists. 

14. I find that as at 15 September 2016 to 19 September 2016 it was the parties' understanding that what was in operation and what effected and regulated the arrangements between the parties and the children and the time that the children would spend with the parties was not paragraph 3(a) or in particular 3(b) of the orders but rather the informal but nonetheless appropriate agreement that the parties had reached. 

15. A contravention application can only lie in respect of orders of the Court that have a level of certainty about them that enables enforcement to be appropriately considered against the backdrop of the principles that are involved.  That cannot occur if, by the parties' own actions, and in particular by the parties' own clear agreement in writing for a period of time at least neither of them expect compliance with the orders of the Court, but rather explore their own informal arrangement.  Indeed, the concession by the father is that the informal arrangement had a get-out, or exit, provision which would enable each of the parties unilaterally to give notice that the informal agreement was no longer working and that the parties should now and would now revert to the obligations created by the orders. 

1. Accordingly, it is my finding that as at 15-19 September 2016 it would not be proper nor permissible for the father to rely upon a breach of an order that, by the very agreement the parties had reached, was effectively suspended or not operative until one or either of the parties brought the orders back to effect.  For those reasons, I do not consider that the father has made out a prima facie case and I dismiss count 2. 

2. Accordingly, and for those reasons, the application for contravention filed 3 February 2017 and pursuant to leave given by me on 2 February 2017 is dismissed. 

3. I do not consider that any issues arise in respect of the limited compass of this contravention application that would invite or give rise to a consideration of the Court to exercise its discretion under section 70NBA of the Family Law Act 1975 (Cth), namely to consider issues relating to parenting. Indeed, it would be inappropriate to do so in the circumstances of a case where the parties and each of them are subject to an order that they require leave before any application can be filed.

4. To the extent that there has not been any application made in respect of costs, I note that the parties are self-represented litigants and I do not consider that the conduct of the father in bringing the application or the matters raised by the mother, particularly given the issue in respect of count 2 related to the separate and informal agreement that the parties had reached and which in any event did not see the child M spending time with the father would invite any consideration of costs.  I do not propose to order that either party should bear the costs of the other. 

5. That brings the proceedings to an end. 

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 3 February 2017.

Associate: 

Date:  13 March 2017