Pearce and Cole (No 4)

[2009] FamCA 1221

FAMILY COURT OF AUSTRALIA

PEARCE & COLE (NO. 4) [2009] FamCA 1221

FAMILY LAW – CONTRAVENTION – Reasonable excuse – Consent orders but mother then finds out about material that had not been brought to her attention by her lawyers
FAMILY LAW – COSTS – Costs against the mother for failing to communicate details of her concerns to the father and at an appropriate time

Family Law Act 1975 (Cth)

APPLICANT: Mr Pearce

RESPONDENT: Ms Cole

FILE NUMBER: MLC 13158 of 2007

DATE DELIVERED: 9 DECEMBER 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 7 DECEMBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR TESORIERO

SOLICITOR FOR THE APPLICANT: STELLA STHTHRIDGE & ASSOCIATES

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the contravention application filed 26 October 2009 is dismissed.

2. That the mother pay the father’s costs fixed in the sum of $1157.40.

3. That the second Sunday after these orders shall be the next Sunday for the purposes of paragraph 4(a) of the orders made 7 September 2009.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 13158  of 2007

MR PEARCE

Applicant

And

MS COLE

Respondent

REASONS FOR JUDGMENT

1. On 7 September 2009, Dessau J made final parenting orders relating to the parties’ daughter who was born in December 2002.  The significance of those orders was that they were made by consent.

2. The mother has appealed against those orders.  The appeal is pending and I am told is likely to be heard in March 2010.

3. As at the time of writing these reasons, no application has been made by the mother for a stay of the orders of 7 September 2009 although I was told by her that such an application is foreshadowed.

4. The proceedings before me were listed on 20 November 2009 in the Judicial Duty List.  On that day, I was asked to hear an application filed by the father on 26 October 2009 alleging a number of contraventions of the orders made on 7 September 2009.  The mother did not attend on 20 November 2009 and I adjourned the proceedings to 7 December 2009.

5. On 7 December 2009, the applicant father attended represented by his solicitor and the mother appeared unrepresented.  However, the mother did file an affidavit on 4 December 2009 which I note was drawn with the assistance of a pro bono lawyer.

6. What will be evident from the documents is that the period of time that the father was to spend with the child pursuant to the orders of 7 September 2009 did not occur. 

7. The contravention application sought that the mother be dealt with for each of the breaches relating to the failure to provide the child to the father on consecutive Sundays and also in relation to her failure to provide the child for telephone communication on successive Wednesdays.

8. In respect of the contraventions of a face to face nature, the mother conceded that none of the allocated time had taken place.

9. In respect of the telephone communication, the mother denied any breaches had occurred because the father had not made the telephone calls.

10. Before dealing with the breaches, the background leading up to the making of the orders on 7 September 2009 is of some relevance.  It appears that on that day, the matter had been listed to commence as a final hearing over a number of days.  The mother appeared unrepresented.  Up until that point in time, she had been represented by a private practitioner apparently funded by Victoria Legal Aid.  On the hearing before Dessau J, the mother was assisted by a duty lawyer.

11. As I understand the position, the mother sought an adjournment of the proceedings on the basis that she had no representation.  Dessau J rejected the mother’s application and insisted that the mother proceed.  These proceedings have been on foot since 2005.  During the latter part of the litigation path, the father has had supervised time with the child.  Over a considerable period of time that supervision occurred at a contact centre.

12. In early 2009, in proceedings before Young J, the supervision was changed so that the time to be spent between father and the child was to be in the presence of the paternal grandmother.

13. At the hearing before Dessau J on 7 September 2009, the father was represented by counsel as was the Independent Children’s Lawyer.  Late in the day, Dessau J was presented with consent orders.  On the file before me, there is a transcript of the proceedings.  On my reading of the discussion between Dessau J and the mother, there is a careful analysis under which Dessau J was satisfied that the mother knew what she was doing and her consent was genuine.  There is certainly nothing in the transcript which indicates that the mother was agreeing under duress to the orders.

14. For the purposes of the hearing on 7 September 2009, the mother whilst represented by her practitioner, filed her trial affidavit.  That was filed in March 2009.  In that affidavit, the mother made allegations against the father which included statements that he had behaved inappropriately in the presence of the child and that his conduct was of a sexual nature.  She also alleged that she had spoken to the father’s former partner who had apparently given similar indications about his inappropriate behaviour.  The mother had said that she was not able to discuss the issues with the father because there were problems of his abuse of alcohol and his violence.

15. There can be no doubt therefore that on 7 September 2009, one of the significant issues between the parties was the husband’s appropriateness as a parent of the child.  It would have been obvious that with the history of supervised time, the Court was taking a cautious approach up until September 2009.  As I have pointed out, Young J changed the supervised arrangement to involve the paternal grandmother.   That was not an order to which the mother consented.

16. In her trial affidavit filed in March 2009, the mother asserted that the paternal grandmother was not able to properly undertake the role of supervisor because of her relationship with her son and the fact that he intimidated his mother.

17. It will therefore be seen that on 7 September 2009, the evidence pointed to factual disputes all of which needed to be addressed.

18. After the orders were made on 7 September 2009, the mother filed a Notice of Appeal.  I have had the advantage of reading that Notice of Appeal and I am not at all clear on what the grounds are.  No doubt that will be resolved because an Appeal Book Index is to be prepared within the next few weeks.

19. The father’s evidence was simple.  He had been allocated time pursuant to the orders of 7 September 2009 and he did not get to see the child.  In addition, he said that his mother had tried to make telephone communication on the Wednesdays and she had been unsuccessful. 

20. There is no evidence upon which I could rely from the father to say that the telephone communications were specifically sought.  I indicated that I would not call upon the mother to respond to those allegations.  The mother’s evidence was that the paternal grandmother had contacted her on a mobile number but otherwise there had been no calls by the father.

21. The issue before me therefore relates to the successive weekend days where the father was entitled to supervised time with the child.  The supervisor was to be his mother.

22. As the mother admitted that each of the contraventions had occurred, she did not wish to cross-examine the father.  The father however desired to call his mother, the paternal grandmother, on the basis that she had been present during the face to face confrontations on 13 September 2009 and 20 September 2009.  In addition, the mother alleged in initial discussions at the bar table that the child had said to her that the grandmother was not present during the supervised times and had been working at an hotel.  She pointed to the fact that her child would not have understood the concept of an hotel and therefore she had every reason to believe that what her daughter was telling her was true.

23. The paternal grandmother gave evidence and said that she had never worked at a time when the child was with the father.  She conceded she worked at the hotel but had never been called in when the father had the child.  The mother had an opportunity to cross-examine the paternal grandmother and apart from suggesting that the grandmother was indicating that the child was a liar, nothing was really put to her to indicate that there was any foundation for the mother’s belief that the paternal grandmother had been absent.

24. On 13 September which was the first day under the orders, the mother and the paternal grandmother spoke and the mother indicated that the child had been unwell with a cold.  The mother was unable to provide any plausible explanation as to why the father could not have cared for the child on that day even with the provision of medication.  I asked the mother whether that was the real reason or whether it had more to do with her own assertions about things that she had learnt to which I shall refer below.  The mother conceded that it was really about that rather than the cold.

25. On 20 September 2009, because the mother did not attend at the changeover point, the paternal grandmother and the father drove to the mother’s home where a confrontation occurred and the mother said that she would call the police if the paternal grandmother did not leave the premises.  She conceded that she had said that the matter was going back to court but nothing more was said as to why the orders were not being carried out.  That is a significant issue because the mother had every opportunity to explain the things that she herself had learned apparently from the child.

26. It became clear that the mother was relying upon the fact that she had a reasonable excuse for not complying with the orders.  She gave evidence.  She said that at the hearing on 7 September, she had some real concerns about the risk of contact between father and child.  She agreed that she signed the documents that gave rise to the orders but she was unrepresented, denied an adjournment and felt manipulated by the father’s counsel.  She said she signed the documents just wanting to get out.

27. The mother’s evidence was that on the night of 7 September, the child told her that the paternal grandmother was not supervising the time.  She said that concerned her.

28. The mother apparently had a dispute with her lawyers in her endeavours to obtain her file.  She said that when she obtained the file which was less than two weeks after the orders were made, she found material in it which had been produced pursuant to subpoena and she had never seen it although it had obviously been in the possession of her own lawyer.  She said that the Independent Children’s Lawyer also apparently had that material.  She said had she seen that material prior to 7 September 2009, she would never have agreed to the orders.

29. She said the material showed that the Community Policing Squad had been involved with the father’s older daughter who had told an aunt that the father had interfered with her and that the child was displaying sexualised behaviour.  She also said the material showed that the father’s former partner had been raped by the father in front of the child.  She said that he had also been accused of removing his daughter’s clothing on a regular basis and that he had done the same thing with the subject child.  She said she had spoken to the former partner in the past and had been warned not to allow the father to bathe the child alone.  She said that the daughter involved in that relationship was now between 12 and 13 years of age. 

30. That child had been interviewed by a psychologist who formed the view that there was a risk if the child was in the father’s care.

31. All of this gave rise to concern in the mother to the extent that she said she was horrified when she found out.  She then contacted the Department of Human Services and had been told not to comply with the orders and had contacted the relevant State Minister for Human Services.

32. The mother was cross-examined at length about why she signed the documents but it is the material to which I have referred that I accept she had not seen before and as a result of which I find that she had a belief that complying with the orders would create a risk for the child.

33. Division 13A of Part VII of the Act applies in respect of contravention proceedings.

34. Section 70NAC sets out that a person is taken to have contravened an order only if when bound by the order, that person has intentionally failed to comply with the order or made no reasonable attempt to comply with the order.  In this case, the mother has indicated and I accept, she has intentionally refused to comply with the order made on 7 September 2009 in respect of the face to face contact.

35. Section 70NAE sets out that a person may be taken to have had a reasonable excuse amongst other things if he or she believed on reasonable grounds that not allowing the child to spend the time pursuant to the order was necessary to protect the health or safety of the person.  However that provision also requires that the denial of contact only be for so long as is necessary to protect the health and safety of the child. 

36. In this case, I am satisfied that the mother believed that on the basis of the material she had read, it was necessary to protect the child notwithstanding the orders of 7 September 2009 provided for that time to be supervised.  I accept her evidence that the child told her that the grandmother was not present and had been working at an hotel.  I accept however that the paternal grandmother has complied with the undertaking she gave to the Court to be present.  That does not mean that there is a conflict in the evidence but rather that this is what the mother was told by the child.  The circumstances under which the child indicated that to the mother were not elicited in evidence.  However, that combined with what the mother learned satisfies me that the mother had a reasonable excuse for not complying with the relevant paragraph of the orders.

37. Each of the allegations therefore must be dismissed.

38. Section 70NBA however provides that once a court has determined the contravention proceedings, it has power to make an order varying the primary order. 

39. Division 13A has a number of sub-divisions which categorise the seriousness of the various contraventions.  In this case, I find that the relevant sub-division is sub-division D.  That is, that the contraventions are established but there is a reasonable excuse of the contraventions.

40. Before turning to the variation issue, s 70NDA provides that a court making a finding under sub-division D may make a compensation period and must consider making that kind of order.  However, s 70NDB(2) provides that the Court must not make a compensatory time order if it would not be in the best interests of the child for the Court to do so.

41. This is a case where evidence appears not to have been presented to the Court on 7 September 2009.  Having regard to the nature of the allegations untested though they may be, it could not be in the best interests of the child for some sort of makeup time to occur in the context of the existing orders.

42. I am mindful that the mother has appealed against the orders and on what she has told me, is proposing to seek that the matter be reheard in circumstances where the evidence can be fully tested.  It may very well be that that is not the appropriate course of action and that having regard to what the mother learned after 7 September 2009, an application for variation of the existing orders should be made anyway.  I shall leave that issue to the mother, her advisers and ultimately to the Full Court. 

43. For the purposes of s 70NBA however, the provisions of Part VII generally apply.  In other words, the Court should only make an order if it is in the best interests of the child to do so.  It was clearly in the best interests of the child on what the Court was told for the orders to be made.  It is significant however that even on the basis of the agreed material, the father’s time for a period of nine months was to be supervised.  The bone of contention appears to be the security to be provided by the paternal grandmother.  The mother’s evidence was that the paternal grandmother and the child did not enjoy a close relationship but that there was a good relationship between father and daughter.  The mother said she had no objections to a supervised contact regime occurring under the auspices of the contact centre.  She said there was no other person who she could think of who could be a substitute for the paternal grandmother.

44. I accept the paternal grandmother was truthful.  There is no reason for me to doubt what she said.  The issues around the child’s security were canvassed before Young J on 11 February 2009 and were vaguely set out in the mother’s affidavit filed 10 March 2009.  The Independent Children’s Lawyer obviously contemplated the supervision clause when agreeing to the orders of 7 September 2009.  The mother has not filed a stay application nor sought orders that would preclude the grandmother being a supervisor.  The mother did not bring proceedings against the paternal grandmother for contempt of the Court.  The mother did not produce to the Court nor to the father any of the material which she said shocked her.  There is no basis therefore other than the mother’s reaction to her daughter’s statement and the reference to the file material, for me to vary the existing orders to effectively alter the supervision by the grandmother.  I find in the circumstances that the existing orders should continue until the Full Court otherwise orders or until further order.

45. Section 70NDC provides that if a court does not make an order for compensatory time, it may make an order that the applicant pay some or all of the costs of the respondent.  In considering whether to make that order, the court is obliged to take into account previous proceedings relating to breaches of the significant primary order and the findings of the court in those circumstances.

46. Having regard to the facts as I have found them, it would not be appropriate in the circumstances to make an order against the father.

47. Notwithstanding that the father has not been successful in relation to the outcome of the contravention, he sought costs against the mother.  The mother opposed making any order for costs on the basis that she is a pensioner and does not receive child support from the father because of the fact that he is a disability pensioner.  The solicitor for the father calculated his costs at six hours on scale at $192.90 per hour.

48. The provisions of s 117 apply in respect of costs in this case.  Section 117 provides that each party should pay their own costs unless there are circumstances which justify a court departing from that principle.  If a court finds there are justifying circumstances, the provisions of s 117(2A) applies. 

49. In this case, there are circumstances justifying making an order for costs against the mother.  Notwithstanding she became aware immediately after 7 September of the accusation of her daughter, it was not raised with the father.  Furthermore, upon being aware of the allegations contained in the solicitor’s file, she did not raise those with the father.  On 13 September 2009, she had the perfect opportunity to discuss both of those complaints with the paternal grandmother and did not do so.  She certainly did not indicate that the father need not endeavour to proceed to pursue the orders on the following week of 20 September.  The mother complained about the appearance of the paternal grandmother at her home on 20 September.  In my view, her complaint was a hollow one having regard to the fact that she had still not given the father any indication of what she was proposing to do and why.  In circumstances where there were allegations which she herself described as horrifying, it rested upon her to at least let the father know that she was going to seek to reopen the hearing and on what basis.

1. All of those matters meant that the father had no choice but to institute proceedings.  The absence of legal representation of the matter is no excuse. 

2. When I turn to the matters in s 117(2A), I accept that the mother is in straitened circumstances.  The same however must apply to the father.  Neither party appears to be in receipt of assistance from Legal Aid and I am aware from previous proceedings that it is the policy of Victoria Legal Aid not to fund contravention proceedings.  For reasons to which I have just referred, I find that the mother’s approach to advising the father was nothing short of blasé.  It is clear the proceedings were necessitated by the failure of the mother to comply with the orders of the Court to which she had consented.  In addition, whilst the mother has not been wholly unsuccessful, it is important again to note that she had an opportunity before 17 November 2009 to indicate what her position was as well as subsequent to that date but has failed to do so.  In the circumstances, I see no reason why the father should be in any worse position than she in relation to the question of costs.

3. Orders for costs are not intended as a punishment but rather to compensate the party who has hade little choice but to litigate at considerable expense.  In the circumstances, it is appropriate that the mother pay the father’s costs which I fix in the sum of $1157.40.

I certify that the preceding Fifty Two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin as amended 22 January 2010

Associate: 

Date:  11 December 2009