Pallas and Pallas (No 2)

[2013] FamCA 747

FAMILY COURT OF AUSTRALIA

PALLAS & PALLAS (NO 2) [2013] FamCA 747

FAMILY LAW – CONTRAVENTION – where the father alleges there have been nine contraventions – no breach established – alternatively, one breach established but the mother has a reasonable excuse – no compensatory time ordered

APPLICANT: Mr Pallas

RESPONDENT: Ms Pallas

INDEPENDENT CHILDREN’S LAWYER: Rebecca Bailey

FILE NUMBER: WOC 856 of 2012

DATE DELIVERED: 2 October 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 6 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Tokkar

SOLICITOR FOR THE APPLICANT: Linden Legal

COUNSEL FOR THE RESPONDENT:: Mr Lloyd, SC

SOLICITOR FOR THE RESPONDENT: Reid Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Rebecca Bailey & Associates

Orders

1. The father’s Amended Contravention Application filed 6 September 2013 is dismissed.

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

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FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: WOC 856 of 2012

Mr Pallas

Applicant

And

Ms Pallas

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. The parties to this marriage have three children; B (aged 11), C (aged 9) and D (aged 5). On 15 April 2013, I made the following orders (inter alia):

   2.    Subject to Order 3, the father spend time with the children as follows:

   2.1.     Each Monday from 2.30pm until 5.30pm; and

   2.2.     Each Thursday from 2.30pm until 5.30pm; and

   2.3.     Each Friday from 2.00pm until 4.00pm; and

   2.4.     Each alternate Saturday from 10.00am until 4.00pm.

   3.The time the children spend with their father shall be supervised by [E Contact Service] and the father shall be responsible for the payment of such costs.

2. The father filed an Amended Application for Contravention on 6 September 2013. The father asserts the mother has contravened the orders on nine occasions. The father relied on:

   2.1.His affidavit sworn 23 May 2013

   2.2.His affidavit sworn 3 September 2013

   2.3.His affidavit sworn 6 September 2013

3. The father alleges the mother breached the Orders of 15 April 2013 without reasonable excuse by failing to make one or more of the children available on:

   3.1.2 May 2013

   3.2.6 May 2013

   3.3.9 May 2013

   3.4.16 May 2013

   3.5.24 June 2013

   3.6.27 June 2013

   3.7.29 June 2013

   3.8.13 July 2013

   3.9.15 July 2013

4. The mother pleaded not guilty in relation to each of those alleged contraventions. She relied on:

   4.1.Her affidavit filed 30 August 2013

   4.2.Her affidavit filed 6 September 2013

   4.3.Affidavit of Ms N filed 20 August 2013

   4.4.Expert Report of Dr M dated 26 July 2013

APPROACH

1. In the circumstances of this case, the term “contravened an order” has the meaning given to it under s 70NAC Family Law Act 1975 (Cth) (“FLA”):

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

   (a) where the person is bound by the order--he or she has:

   (i) intentionally failed to comply with the order; or

   (ii) made no reasonable attempt to comply with the order;

2. If a contravention is established, a party can assert reasonable excuse (s 70NAE FLA):

   (1)  The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).

3. No matter in ss 70NAE(2), (4), (5), (6) and (7) FLA is relevant to the facts in this case. The mother nonetheless says she has reasonable excuse.

4. Where a breach is established but an application is dismissed because the court is satisfied the respondent has reasonable excuse, there may still be a remedy for the applicant (s 70NDB FLA):

   (1)      If:

   (a)the primary order is a parenting order in relation to a child; and

   (b)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period);

   the court:

   (c)may make a further parenting order that compensates the person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention; and

   (d)      must consider making that kind of order.

   Note: If the person does not have a reasonable excuse for a contravention, the court has the power to make an order compensating a person for time lost under paragraph 70NEB(1)(b) or 70NFB(2)(c).

   (2)The court must not make an order under paragraph (1)(c) if it would not be in the best interests of the child for the court to do so.

CHARGES 1 – 7 AND CHARGE 9

1. As earlier indicated, the Orders of 15 April 2013 required that the time the children spend with their father be supervised by E Contact Service. The person employed by that service to carry out the task was Ms N. I refer to Ms N’s experience later in these reasons. The arrangement was that the mother would take the children to a prearranged place where the supervisor would meet with them and then the supervisor would transport the children to the father.

Charge 1

1. Ms N gives evidence about contact on 2 May 2013. She says the mother arrived at the changeover location with all three children. The mother left all three children with Ms N and walked back to her car.

2. Annexure A to Ms N’s affidavit is a bundle of notes for contact sessions. Ms N records “[D] was reluctant to attend today… we were about to leave when he screamed for his mother to not make him go.” In her affidavit Ms N said she called the mother back because D was “very distressed”. She goes on to say she “made the decision that [D] was too upset to go on contact with his father that day”. She said to the mother “he’s too upset to go. Can you take him with you”. The mother complied with the direction of the supervisor. The father spent time with C and B. There was only one other occasion (1 July 2013) which has been brought to my attention upon which D did not attend time with his father in accordance with these orders. The father has not included that occasion in the charges brought against the mother.

Charge 2

1. On 6 May 2013, all three children arrived with the mother. Ms N says she had “great difficulty in getting any of the children to attend.” She says “B was adamant that she was not going”. B said she did not want to go and was becoming distressed. She said “no mummy I don’t want to go.” Ms N told B “I won’t force you to go if you really don’t want to.” B left the changeover area and went to sit back in the mother’s car. Ms N and the mother convinced C and D to attend the visit.

Charge 3

1. On 9 May 2013, Ms N said B said “I don’t want to go. He [referring to the father] just takes us to his house and I feel very scared there.” Ms N says C did not want to come and told her “It’s still too hard to go and I’m worried all the time.” The father spent time with D. The father deposes Ms N told him “I spent 15 minutes with [the mother] and the children while they decided whether they wanted to come today or not. B and C both did not want to come.”

Charge 4

1. On 16 May 2013, all three children arrived at the changeover location. Counsel for the father relies on Ms N’s evidence that she asked the children “who’s coming today?”. The mother gives evidence that B and C both said to Ms N “I don’t want to go.” The mother and Ms N encouraged them to go. C said to the mother “No Mami I really don’t want to go.” B said “I am not going” and “I don’t want to go.” The father spent time with D.

Charge 5

1. On 24 June 2013, the mother gives evidence that when the children arrived at the changeover location, B started crying and said “no, don’t you know I won’t want to go? Please don’t make me go. I don’t want to go.” The mother tried to encourage her to attend given it was her father’s birthday. The mother deposes “I felt that the more I tried to encourage [B] to go, the more upset she would get.” B reiterated “I’m not going.” The father spent time with C and D.

Charge 6

1. The mother arrived with all three children at the changeover location. Upon arrival, B said to the mother “Why do you do this mum? Don’t you know I don’t want to go?”  The children and the mother walked to Ms N’s car. The mother gives evidence (corroborated by Ms N’s notes for that day) B said to Ms N “I’m not coming”. The mother says B became upset and starting crying and walked back towards the mother’s car. The father spent time with C and D.

Charge 7

1. On 29 June 2013, the mother deposes that upon arriving at the changeover location B told her “I don’t want to go.” The mother told her “Dad’s really happy to see you, you should go.” B replied “No he’s not happy to see me”. B did not get in Ms N’s car. The mother took her home. The father spent time with C and D.

Charge 9

1. On 15 July 2013, Ms N records “[B] did not attend.” She further records “both [D] and [C] came without any problem today.” The mother says upon arrival at the changeover location “[B] refused to go with [Ms N] and was crying.”

CONCLUSION IN RELATION TO CHARGES 1 -7 AND CHARGE 9

1. Counsel for the father submitted that the mother is circumventing the orders by relying on advice from the supervisor as to whether the children should spend time with their father in circumstances where the supervisor indicated to B (within, it seems, earshot of D) in a preliminary visit to the children’s home prior to supervised time commencing, that she wouldn’t force B to do anything B did not want to do. The mother disputes that Ms N told B that it was B’s “choice” to attend contact visits.

2. Counsel for the father submitted that the mother was merely “passing the buck” to the supervisor. The father has not charged Ms N with aiding and abetting any breach of the orders, and chose not to cross examination Ms N.

3. Ms N is an experienced supervisor with over 18 years supervising experience. She has a Bachelor of Psychology, an Advanced Certificate in Disability Studies and training in numerous areas including “Children hurt by Relational Trauma”, “Deliberate Self Harm”, “Core Competence: Positive care environment”, “personal resilience”, child abuse, ADHD, and autism.

4. Ms N deposes:

   8. Clause 3.5.2 of the Guideline [for Family Law Courts and Children’s Contact Services 2007] provides that a Service will suspend or withdraw a supervised visit or changeover if the Service determines the risk factors present jeopardise the safety of any person. Further, Clause 3.5.3 of the Guideline specifies that grounds for suspension or termination include a child’s refusal to have a visit after presentation in accordance with a court order.

5. I accept the mother has presented all three children at every changeover (except for 13 July 2013 which I discuss below).

6. It is clear in paragraphs 15 – 39 of my Reasons for Judgment dated 15 April 2013 that the children were apprehensive about spending time with their father. I found it was in the children’s best interests for the time to be supervised:

   41.Supervision has a number of advantages. The first is that it mitigates any actual risk that exists that the father will behave inappropriately in an aggressive manner towards the children. It also reduces the mother’s fears (and probably [B’s] fears) that he will do so. Thirdly, there is some evidence that the children are comforted by the fact that there is a third party present.

7. Counsel for father submitted that the Orders of 15 April 2013 were made notwithstanding the evidence about the children’s apprehension and points to the unpredictable nature of the children’s aversion to attending contact visits. The father’s time with the children is subject to Order 3 of 15 April 2013 which provides that such time will be supervised. I accept that in relation to the eight charges above, the professional supervisor exercised her judgment to withdraw one or more of the children.

8. Her judgment on 2 May 2013 to decline to supervise D because of D’s distress appears to have been appropriate. I note that D has attended almost all of the supervised visits since then. The father’s complaint in this regard is churlish.

9. I don’t accept that the mother has “passed the buck” and delegated the responsibility that she has under the orders to the supervisor. Consistent with the orders made, she has relied upon the advice of the professional supervisor and has not at any time behaved in a way that was contrary to the advice that she was being given by Ms N.

10. Although not the subject of a charge, it seems from the notes that B did not spend 28 August 2013 with her father, however all three children spent time with the father on 31 August 2013 in accordance with the orders.

11. I note in passing that Ms N has declined to continue to provide a service in this matter and that the parties have agreed on an alternate supervisor.

12. I do not find any of these alleged contraventions in charges 1 – 7 and charge 9 to be established.

CHARGE 8

1. On 13 July 2013, none of the children spent time with their father. The mother gave evidence that she took them to the airport to farewell their cousins who were going back home to Country O. The mother says this is a family tradition.

2. The mother says she tried to arrange compensatory time in advance. The mother said she hoped to avoid driving all three children down to P Town and having all of the children resist spending time with their father.

3. On Thursday 4 July 2013, the mother said to Ms N:

   [O]ur family has flown out to Australia and the children want to go to the airport to say goodbye. Can you propose an alternate arrangement to [the father] so that the children could go to the airport on 13 July 2013 to say goodbye to their Aunt and cousins? He can have a make-up visit on Sunday [14 July 2013].

4. The mother said she understood Ms N was available between 10am and 4pm. The mother says on 4 July 2013, Ms N told her “[the father] said he will think about it.”

5. On Monday 8 July 2013, Ms N said to the mother “[the father] is not available for visits next Thursday or Sunday.” The mother made alternative plans for that weekend. I note that the mother does not bring any application for contravention against the father in relation to his unilateral cancellation of the children’s visit with him on Thursday 11 July 2013.

6. On 9 July 2013, the father sent a text message to Ms N saying that he was able to swap days and would spend time with the children from 10am to 4pm on Sunday 14 July 2013. Annexure A of Ms N’s affidavit says she relayed that message to the mother and asked if the mother was still available. Ms N informed the mother that she was still available for Sunday.

7. Ms N’s notes record she received a phone call from the mother saying that the mother had made alternative plans but that she would be able to make the children available from 3pm to 6pm on Sunday. The father sent a text message to Ms N saying:

   …I was prepared to change the day to assist [the mother] as requested. My clear understanding when agreeing to the swap that my time would be 10 – 4 and I put that in my text. In the circumstances, [the mother] should not have made plans for Sunday knowing that you were not offering the full 6 hours. Further I do not think that any plans just made would be such that they cannot be changed. If you cannot offer the full six hours on Sunday then I do not agree to swap the days and will expect to have the children from 10 – 4 on Saturday…

8. On 12 July 2013, the mother says Ms N said to her “[the father] would not accept time from 3.00pm on Sunday. I am now no longer available on Saturday to facilitate time.” In the contact notes, Ms N says she had taken on another client on Saturday, but was still available on Sunday from 10am to 4pm.

9. The father says on 12 July 2013 he received a text message from Ms N saying “I have been advised there is no contact this Saturday or Sunday. Next visit Monday.”

10. The father took the stance that he would not spend time with the children at all if he could not spend the whole six hours with them.

11. The father bears the onus of establishing on the balance of probabilities, that the mother intentionally failed to comply with the order or made no reasonable attempt to comply with the order. Nine days before the order was due to be complied with, the mother sent a message to the father that, for very good reason, she would like to make an alternate arrangement in respect of this one day. The father did not reply for four days and when he did, he seemed to indicate that he was not agreeing to the mother’s proposal. The following day he seems to have changed his mind. By that time, the mother had made alternative plans on the Sunday and the amount of time that was originally proposed was no longer feasible. Subsequently, the father changed his mind about swapping days as the mother by then was offering a smaller number of hours. Because of the toing and froing and the attempted negotiations, the supervisor became unavailable to supervise the children at the time provided in the orders. The question is, whether or not the mother had done everything reasonable to attempt to comply with the orders. It is not in issue that by 12 July 2013 the orders could not be complied with because of the unavailability of the supervisor. The father’s complaint is it was the mother’s actions that brought this about. I am unable to conclude that she was entirely at fault. The father’s delay in responding to the mother’s request, his initial agreement to swapping days and his withdrawal from that agreement on the basis that his understanding of that agreement was not the same as the mother’s all combine to form a set of circumstances which leads me to conclude the mother has not intentionally failed to comply with the order nor has she failed to make a reasonable attempt to comply with the order.

12. Even if I am wrong about that and a finding could be made that the mother had at some point in time prior to 13 July 2013 (at a time when the father had made it clear that he was not going to be prepared to swap weekends and at a time when the supervisor was still available to supervisor), took the decision not to make the children available on the Saturday but rather to take them to the airport so that the children could say goodbye to their aunt and cousins, I would find that she has a reasonable excuse for contravening the order.

13. Consequently the application involving charge 8 will be dismissed.

COMPENSATORY TIME

1. On 6 September 2013, I made interim orders by consent varying the time the children spend with their father (as a result of B and C’s commencement at a mainstream school). Under the current orders, the children spend time with their father five times a fortnight.

2. Given the frequency with which the children are seeing the father, and given his unilateral cancellation of the visit on 11 July 2013, I am not minded to order compensatory time.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 2 October 2013

Associate:

Date:  2.10.2013