Pacillo and Seales (No 2)

[2014] FamCA 540

FAMILY COURT OF AUSTRALIA

PACILLO & SEALES (NO 2) [2014] FamCA 540

FAMILY LAW – CONTRAVENTION – Where the father alleges numerous contraventions of Court Orders by the mother in respect of not facilitating time between the child and the father and in respect of not providing information to the father regarding the child – Where the mother argues reasonable excuse in respect of the no contact – Where the mother denies failing to provide information

Family Law Act 1975 (Cth) s 70NAC, 70NAE

APPLICANT: Mr Pacillo

RESPONDENT: Ms Seales

INDEPENDENT CHILDREN’S LAWYER: Ms Coady

FILE NUMBER: PAC 4189 of 2008

DATE DELIVERED: 10 July 2014

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 8 – 10 July 2014

REPRESENTATION

THE APPLICANT: Self-represented Litigant

THE RESPONDENT: Self-represented Litigant

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Weaver

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Louise Coady Family Lawyers

Orders

UNTIL FURTHER ORDER IT IS ORDERED THAT

1. The child shall live with the mother.

2. Each party is hereby restrained from permitting or causing the child to operate a motor vehicle without the child first obtaining a driver’s license.

3. The mother is restrained from consuming alcohol at any time when the child is in her care.

4. The parties shall communicate with each other by SMS text message regarding the child.

5. Each party shall maintain an active mobile telephone and shall ensure that the telephone has credit, is charged and is switched on between 8.00 am and 6.00 pm each day.

6. Each party shall advise the other party of any change in that party’s mobile telephone number within 24 hours of any change occurring.

7. The mother shall notify the father of any medical treatment the child receives, while in the mother’s care, within 2 hours of the child receiving medical treatment.

8. Each party is restrained from denigrating the other party within the presence or hearing of the child.

9. Each party is authorised to obtain information from the child’s school and any treating medical professional regarding the child.

10. The mother is to arrange a mental health assessment for herself during the adjourned period and file a report in this regard 7 days prior to the adjourned date.

11. The matter is adjourned to 9 October 2014 at 10.00am for interim hearing.

12. With the consent of the mother, the mother will participate in such parenting programs or counselling or adolescent services as recommended by the Independent Children’s Lawyer.

13. The mother shall set up a personal email account, if necessary with the assistance of any other person except the child, and is to provide that email address to the Independent Children’s Lawyer within 7 days of today’s date.

14. The parents are restrained from discussing these proceedings or any of the evidence in these proceedings with the child.

15. The matter is adjourned to 22 July 2014 at 2.15pm for sentencing proceedings in relation to the contravention application.

16. The Independent Children’s Lawyer is excused from attending the sentencing proceedings in relation to the contravention application on 22 July 2014.

17. Pursuant to Section 91B of the Family Law Act 1975 (Cth), the Secretary of the NSW Department of Family and Community Services is requested to intervene in these proceedings.

18. In the event that the Secretary, he/she is to file and serve a Notice of Intervention (by no later than 7 days prior to 9 October 2014.

19. Pursuant to Rule 24.13 of the Family Law Rules 2004 (Cth), leave is granted to the Secretary of the NSW Department of Family and Community Services, or his/her delegate, to inspect and copy any documents on the Court file forming part of the Court record.

NOTATIONS

1. During the operation of the interim orders, the child and the father will be given an opportunity to participate in therapeutic services and programs directed at rebuilding their relationship.  In the event that either or both of them do participate in such programs, that information in relation to their progress with such service or any such program will be provided to the Court on the next occasion.

2. The Independent Children’s Lawyer will use her best endeavours to facilitate the child communicating or spending time with his father (and any other paternal family member the Independent Children’s Lawyer deems appropriate) in the event that the child wishes to do so.  If such communication or time together takes place a report or information will be provided to the Court on the next occasion.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pacillo & Seales (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 PARRAMATTA

FILE NUMBER: PAC 4198 of 2008

Mr Pacillo

Applicant

And

Ms Seales

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an application by the father that alleges that Orders with respect to the child the child have been contravened by the mother and seeks that the Respondent mother be dealt with under the contravention provisions.

2. L is the only son of Ms Seales, the mother, and Mr Pacillo, the father.

3. On 1 September 2010, when the child was 11, parenting Orders were made with respect to him. In broad terms these Orders provided that the mother was to have sole parental responsibility for the child, that the child was to live with her and that the father may spend time with the child under a regime set out in the Orders.

4. Initially, the father was permitted to spend time with the child on alternate Sundays from 10.00 am until 6.00 pm and other special days, and after having completed an anger management program, the father was to spend time with the child on alternate weekends during school terms from 10.00 am Saturday, or at the conclusion of his organised sporting activities if at a later time, to 6.00 pm Sunday or at the conclusion of his organised sporting activities if at a later time. The Orders were to commence no later than 7 days after the father had complied with the order requiring him to complete the anger management program. There was also provision for the father to spend time with the child for up to six weeks during school holidays in each year provided that certain conditions such as notification to the mother in a specified manner were met. Provision was also made for special days.

5. Order 8 of the same Orders provided that the mother may engage the child in sport and extracurricular activities whether or not these activities occured during the weekend when the child is due to spend time with the father and the mother was required to “keep the father informed in that regard as soon as possible”.

6. Some of these Orders have been subsequently varied and the father also alleges that the varied Orders have been contravened by the mother. On 9 November 2011, following some proven breaches, the Orders in relation to holiday time were varied and on 26 July 2012, following proven breaches, Orders in relation to notification by the mother to the father were varied and in particular Order 8 was discharged and a new order was made in relation to notification.

7. The father brings an application alleging that Order 7(e) of the Orders dated 1 September 2010 was contravened on six occasions between 23 June 2012 and 15 September 2012. In each of these cases the father alleges that the mother refused without reasonable excuse to allow the father to spend time with the child.

8. Another four of the contraventions alleges that the mother contravened Order 8 of the Orders dated 1 September 2010, which provided that the mother was required to keep the father informed of the child’s enrolment in sport and extracurricular activities. These alleged contraventions were said to have occurred on four occasions between 23 June 2012 and 18 August 2012.

9. The father also alleges four contraventions of Order 9(b) made on 1 September 2010. This Order provides that in the event that the child’s sport takes place at a time which coincides with the father spending time with the child then the father is required to ensure that he personally collected the child at the conclusion of sport or the activity.

10. On 9 November 2011 Order 7(f) made on 1 September 2010 was varied by consent providing for the child to spend time with his father at specified times in the school holidays rather than by giving of notice as provided under the previous Order.. In this contravention application the father alleges that Order 6(a) made on 9 November 2011 relating to school holidays was breached on 7 July 2012.

11. On 1 September 2012 a further Order was made requiring the mother within 14 days to write to the child’s school and to notify the school to provide specified information about the child as sought by the father and within 21 days was to provide the father with a copy of the letter that she had sent to the school. The father alleges that the mother had contravened this Order on 14 August 2012.

12. The father had originally also alleged other contraventions relating to telephone contact but no evidence was offered in relation to these contraventions and they were dismissed.

13. I will firstly deal with the contraventions of Order 7(3) made on 1 September 2010.

Contraventions of Order 7(e) made on 1 September 2010

1. This Order provides “that the father may spend time with the child as follows: upon the father having complied with Order 6 on alternate weekends during school terms from 10.00 am Saturday (or the conclusion of the child’s organised sporting activities if at a later time) to 6.00 pm (or the conclusion of the child’s organised sporting activities if at a later time) commencing no earlier than 7 days after the father has complied with Order 6.”

2. On each of the relevant dates, being 23 June 2012, 21 July 2012, 4 August 2012, 18 August 2012, 1 September 2012 and 15 September 2012, it is alleged that the mother, without reasonable excuse, refused to allow the father to spend time with the child. Each of the alleged contraventions other than the two in September were said to have occurred at 10.00 am at Region D train station.

3. In order to find these alleged contraventions proved I must be satisfied on the balance of probabilities that:

   (1) the father had complied with Order 6 (that is the order to complete the anger management program and furnishing a certificate in that regard to the mother and the Independent Children’s Lawyer);

   (2) that the date of the alleged contraventions fell on an alternate weekend during school terms when the father was to spend time with the child;

   (3) that there was no sport or extracurricular activity on the date when the contravention was alleged to have occurred (in which case changeover was to occur at Region D station at 10.00 am) or if sport or an extracurricular activity did take place on the date alleged; and

   (4)that the mother refused to allow the father to collect the child at the conclusion of the sport or extracurricular activity or refused to hand the child over at Region D station on those dates alleged.

4. So far as compliance with Order 6 is concerned the father relies upon the evidence contained in the Family Consultant’s report that he had completed this program prior to the first date upon which the contravention is alleged, that is, 23 June 2012, and as this is not disputed by the mother, I am satisfied as to this matter.

5. In the course of submissions I asked the father to identify the evidence that demonstrated that on the weekends that he was due to spend time with the child under the Orders that that was the case. Although he was unable to identify any such evidence at the time, in his affidavit at paragraph 11 he says, and it is not contested, that on 25 August 2012 he attended the location of the child’s sporting game at the appointed time but the child was not present at the game and that on this occasion it was not a Saturday on which he was to spend time with the child. On the basis that that particular weekend was not a weekend when the child was to spend time with his father, it is able to be ascertained that each of the other dates on which it is alleged that time with the child was to occur were dates which fell within the regime outlined in Order 7(e). Accordingly, I am satisfied as to that matter.

6. There is evidence from two sources that the child was playing a sports game on 23 June 2012 at E Ground at 10.20 am. Pursuant to Order 7(e) time with the child was due to commence at the conclusion of this game. According to the father’s evidence the mother had not provided him with the information concerning the times and venues of the child’s games until forwarding those details to him in a letter through her solicitor dated 21 August 2012, which he received 23 August 2012.

7. On each of 23 June, 21 July, 4 August and 18 August 2012 it is alleged that the mother failed to deliver the child to Region D train station, which is the requirement when the child is not attending sport. However, even on the father’s own evidence, the child did participate in a game on each of those Saturdays so the father should have collected him at the end of game under the Orders. In that regard it is difficult for him to maintain that the mother refused to allow the father to spend time with the child as alleged by failing to present him to Region D railway station.

8. According to s 70NAC of the Family Law Act 1975(Cth) (“the Act”):

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

   …

   (b) … she has:

   (i) intentionally prevented compliance with the order by a person who is bound by it; or

   …

   The regime of Orders imposed on 1 September 2010 provide that while the mother is free to enrol the child in a sport or activity during a weekend when the child is due to spend time with the father, she was required to keep the father informed of the details of that sport or that activity. The Order then cast obligations upon the father to deliver the child to the sport when he is in his care or in the event that the sporting game finishes after 10.00 am the father was required to collect the child from sport at the conclusion of the game. In other words, each of the Orders could not be effective, unless each of the others are complied with.

9. The only sensible reading of the words “the mother shall keep the father informed in that regard as soon as possible” is that as soon as she became aware of the time and venue of the games in a particular sporting season she was obliged to inform the father of those details.

10. As I have noted, the father says that he did not receive confirmation that the child was playing for a particular team until sometime after 27 July 2012 when he received a letter of that date from the junior President of the particular club. However, the draw indicating the venue and time for each of the child’s games commenced on 21 April 2012 and was not provided to the father until a letter dated 21 August 2012. According to the draw, this letter and the draw was sent four days prior to the final game in the season.

11. The mother’s evidence is the father was sent the “draw card” when she received it. However, she goes on to say that she tried to contact the father by mail, email, telephone and through her solicitors so that he could confirm that he had received the draw card. She says that if there was any failure in relation to the notification of the child’s sporting activities that was due to the father not accepting contact from her.

12. At another point in her affidavit the mother says she sent the draw card “in May 2012 when she received it”.

13. I am satisfied that the father was not notified of the timetable for the child’s sports games by the mother until 23 August 2012 as a letter dated 21 August 2012 from the mother’s then solicitor enclosing the playing schedule with father’s affidavit. This letter makes no reference to previously having provided the schedule in May or any other time, or to any previous attempts to contact the father. It also does not request the father to confirm that he has received the schedule. There is no evidence confirming the mother’s version that she sent the schedule to the father prior to this date.

14. However, it is clear from both of the parents’ affidavits that the official website of the sport also displays the schedule for the child’s games and that the father accessed this website on 14 September 2012 as he annexes information he was able to download concerning the games. There is no reason why the father could not have earlier accessed the website to determine when the child’s games were being held.

15. So far as the contraventions of Order 7(e) of 23 June 2012, 21 July 2012, 4 August 2012 and 18 August 2012 are concerned, I am not satisfied that the mother has contravened the Orders in the manner particularised, that is, by failing to deliver the child to Region D station and thereby refusing to allow the father to spend time with the child because on each of these occasions the father was to collect the child from the completion of his game, rather than at Region D train station.

16. Although, as indicated, I do not accept that the mother notified the father of the games until 23 August 2012, there is no reason why the father could not have accessed the official site to determine the venue and time of the child’s games so that he could collect the child from the conclusion of the games as required under the Orders. Accordingly, I am not satisfied that the mother has contravened those Orders as alleged on those dates.

17. I will next deal with the contravention of Order 6(a) of 9 November 2011.

Contravention of Order 6(a) of 9 November 2011

1. The alleged contravention of Order 6(a) of 9 November 2011 (being operative at the relevant time), in relation to 7 July 2012 concerns school holidays. The father says in his affidavit that this date was the commencement of the school holiday period of block contact for a week and there is no evidence to the contrary. Under the Order of 9 November 2011 the father was to spend time with the child commencing at 9.00 am on the middle Saturday of that holiday period and, according to the balance of the Orders, Region D Railway station was the changeover venue unless the child was playing sport.

2. In his affidavit the father says that he attended Region D station at 9.00 am and waited until 9.15 am but the child was not delivered, nor any contact made in relation to a reasonable excuse for not complying. The draw for 7 July 2012 indicates that there were no games played, as does the website.

3. The mother gives no specific evidence concerning this event and simply makes a general statement that the child continually refused to comply with her wishes and Court Orders. She simply states that her reasonable excuse is that the child refused to spend time with his father.

4. At the date of this alleged contravention, the child had just turned 13. There is other evidence to suggest that the child was complaint at attending school, football games and the like during this period and there is also evidence to suggest that in more recent times the mother allows the child to do what he wishes, rather than to exercise her responsibility to ensure that he complies with her requirements. The mother gives no explanation for her inability to have her then 13 year old son comply with her wishes and, to the extent to which she says that the child refused to comply with Court Orders, I note that the obligation is upon the parent to comply with Orders, rather than the child.

5. It is the mother’s case that the child’s refusal to spend time with his father is a reasonable excuse for her contravention of the Order.

6. Pursuant to s 70NAE of the Act a person is taken to have had a reasonable excuse if the Court is satisfied that the Respondent ought to be excused in respect of the contravention. Subsection 5 provides that a Respondent is taken to have had a reasonable excuse for contravening a spend time with order if the Respondent believed on reasonable grounds that not allowing the child and the other person to spend time together was necessary to protect the health and safety of a person and the period during which the child and the other person did not spend time together was not longer than necessary to protect the health and safety of a person.

1. There is no evidence that the mother held such a belief and I am not satisfied that the mother ought to be excused by simply asserting that a 13 year old would not do as she asked or as the Order required.

2. Accordingly, I find this Order to have been contravened on 7 July 2012.

Other contraventions

1. The remaining alleged breaches of Orders 7(e) of 1 September 2010 relate to September 2012 and allege that the mother, without reasonable excuse, refused to allow the father to spend time with the child. The draw for the child’s games did not go beyond 25 August 2012 but the website indicates this was a finals week.

2. Although the website suggested that on 1 September 2012 a final match in which the child was to play was scheduled, the father says that the game did not occur on this date but on 2 September, which is not disputed by the mother. As this was a weekend the child was due to spend time with his father, according to his affidavit the father went to Region D station at 10.00 am and waited until 10.15 am on 1 September 2012. The mother did not deliver the child to the father, nor make any contact. The mother does not refer to this particular date in her affidavit except to say that she had a reasonable excuse to contravene the Order being that the child refused to go with his father. No other details have been provided and on the same basis as the contravention of 7 July, I find the alleged contravention proved and that the mother did not have a reasonable excuse for doing so.

3. On 15 September 2012 when the father was due to spend time with the child, the draw and website indicate that the child played in a Final at F Ground and the game commenced at 10.10 am. Accordingly under the Orders, the father was to collect the child at the conclusion of this game. According to the father, he had contacted the mother by email at 10.00 pm the previous night and informed her that he would like to pick up the child on the next day and advised her that he would be outside Region D Club near the front entrance after the game, across the road from F Ground at 11.40 am. This email was also sent to the mother’s then solicitors. According to the father’s affidavit he attended the game at the stadium and watched it and at the end of the game the child walked off with the maternal uncle in the direction of the place which the father had nominated as the collection point. According to the father, when he arrived at the collection point the child was not made available to him for collection.

4. The mother gives no specific evidence in relation to this occasion and there is no evidence that the mother read the email prior to the game. The mother says generally in relation to all contraventions that the child refused to go with his father. Curiously, the mother says in relation to the alleged 21 July contravention that the father was advised by the child via telephone that his club was in the Final at F Ground. Notwithstanding that this seems to suggest that the child himself had a telephone conversation with the father and advised him of the Final venue, albeit that the date appears incorrect, the specific arrangements for the changeover are to be arranged under the Orders between the parents, not the child. In my view, it is not reasonable for the father to have left it until 10.00 pm on the evening before the due date for collection to send an email to the mother and also to her solicitor to make these specific arrangements for the handover of the child. Further, on the father’s own evidence he saw the child and the child’s uncle at the conclusion of the game. Considering that he sent an email at such a late stage in circumstances when he did not know whether it had been received, it would have been reasonable for the father to have collected the child at the conclusion of the game at the venue when he saw the child, rather than attempt what he regarded as the alternate collection point. In these circumstances, I am not satisfied that this Order has been contravened as alleged.

5. In relation to the alleged contraventions of Order 8, that is, that the mother, having engaged the child in a sport activity was required to keep the father informed of that activity as soon as possible. Order 9 makes it clear that the purpose of Order 8 is so that the father is informed of the conclusion time and venue of the activity so that he could collect the child at its conclusion on the dates when he was due to spend time with the child.

6. There are three allegations that the mother contravened Order 9(b) of the orders of 1 September 2010 in that it is alleged that the mother obstructed the father from collecting the child at the end of his games on that date by not giving notice of the child’s sports activities.  As previously noted Order 9(b) provides that when the child is involved in a sport activity on dates which coincide with the father spending time with him then the father is required to ensure that he personally collects the child at the conclusion of that activity.

7. On each of the days concerned – 23 June, 21 July, 14 August and 18 August 2012 the child was participating in a game on a date on which the father was to spend time with him and so the father had an obligation to collect him at the conclusion of the game. As I also previously indicated it appears that the father was able to ascertain the time and venue of the child’s games, notwithstanding that the mother had not informed him by accessing the website. Whilst it reflects very poorly upon the mother that she did not  inform the father of the schedule until the very last game of the season before the finals, the obligation is on the father to collect the child at the conclusion of his game and I am  satisfied he was capable of obtaining the relevant information himself to comply with his obligations under the Orders. Accordingly, I was not satisfied that the father was obstructed by the mother as alleged or, in terms of the Act, that she intentionally prevented compliance with the Orders by the father and the alleged contraventions of Order 9(b) on 23 June, 21 July, 14 August and 18 August 2012 are not proved.

8. The next contravention proceeded with by the father is an allegation that the mother contravened Order 7(h) of the Orders dated 1 September 2010 in that she refused to allow the father to spend time with the child on 2 September 2012, being Father’s Day. Pursuant to Order 7(h) the father was to spend time with the child from 10.00 am until 6.00 pm on Father’s Day, but having regard to Order 9 as a game occurred on this date, the father was to collect the child at the conclusion of his game. On 2 September 2012, which was Father’s Day, the child played in a final which commenced at 10.40 am and the father attended and watched the game. The father said that at the end of the game the mother took the child with her and drove off in a waiting car. Bizarrely, the father also said that a private investigator was present on his behalf.

9. The mother gives no specific evidence of the circumstances surrounding this alleged contravention at all, even in summary form. She offers no explanation concerning any alleged reasonable excuse. As there is no other evidence, I accept the father’s version that at the end of the game the mother took the child with her and drove away. Accordingly, I find this contravention proved.

10. The final allegation of a contravention of an Order relates to Order 2 made on 26 July 2012. On that date, following a discharge of Order 8, a further Order (Order 1) was made in lieu requiring the mother to notify the school to provide information about the child as is sought by the father and within 21 days of the Order provide the father a copy of the letter she had sent.

11. The mother had originally indicated that she was not guilty of this breach and relied upon a letter to the school dated 13 December 2011, annexed to her affidavit. In the course of submissions she conceded that she had not provided this letter to the father as required under Order 1. I am also satisfied that she did not comply with her requirement under Order 1 to notify the school of specific matters as the Order was not made until 26 July 2012 but the mother’s letter to the school is dated 13 December 2011 and was clearly written for another purpose and not pursuant to the Order. Accordingly, I find this alleged contravention proved.

12. In summary, I find the following contraventions proved and that the mother did not have a reasonable excuse for doing so:

    (1)Contravention of Order 7(e) of Orders of 1 September 2010 on 7 July 2012;

    (2)Contravention of Order 7(e) of Orders of 1 September 2010 on 1 September 2012;

    (3)Contravention of Order 8 of Orders of 1 September 2010 on 23 June 2012;

    (4)Contravention of Order 8 of Orders of 1 September 2010 on 21 July 2012;

    (5)Contravention of Order 7(h) of Orders of 1 September 2010 on 2 September 2012; and

    (6)Contravention of Order 1of Orders 26 July 2012 on 14 August 2012.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 10 July 2014.

Legal Associate:       

Date:    21 July 2014