PENN & PENN (No.2)

[2019] FCCA 2498

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENN & PENN (No.2) [2019] FCCA 2498

Catchwords:
FAMILY LAW – Parenting – contravention application – ceasing parental time on advice of child’s treating psychologist – best interests of the child – lack of trust and communication between parties – application dismissed.

Legislation:

Family Law Act 1975 (Cth), ss.70NAC, 170NAA, 170NAE, 170NAF, 170NDB

Applicant: MR PENN

Respondent: MS PENN

File Number: MLC 5701 of 2016

Judgment of: Judge Mercuri

Hearing date: 17 December 2018

Date of Last Submission: 17 December 2018

Delivered at: Melbourne

Delivered on: 17 September 2019

REPRESENTATION

Advocate for the Applicant: In person

Solicitors for the Applicant: None

Advocate for the Respondent: In person

Solicitors for the Respondent: None

ORDERS

1. The father’s contravention application filed 24 August 2018 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Penn & Penn (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 5701 of 2016

MR PENN

Applicant

And

MS PENN

Respondent

REASONS FOR JUDGMENT

Introduction

1. The court has before it a contravention application filed by the father on 24 August 2018. The application was listed for hearing on 17 December 2018. The father appeared on his own behalf at that hearing and the mother was represented by counsel.

2. The father alleges that on the following six occasions, the mother contravened order 5(e) of the final parenting orders made by this court on 5 December 2017 (“the Orders”):

   a)9 August 2018;

   b)16 August 2018;

   c)17 August 2018;

   d)18 August 2018; and

   e)19 August 2018.

3. The father alleges that in each case, the mother collected the child, X early from school without notifying the father and the father was therefore prevented from picking up the child from school pursuant to the orders of the court made on 5 December 2017.

4. At the commencement of the proceedings, the mother, through her counsel, indicated that she had not complied with order 5(e) of the Orders, but claimed that she had a reasonable excuse for such non-compliance.

Factual background

1. The parties met in Country D and married in 2005. They relocated to Australia in … 2005. The child, X (“the child”), was born on … 2006.  The parties separated in June 2015 and divorce proceedings were finalised on 24 January 2017.

2. In June 2016, the mother initiated proceedings in this court. Interim orders were made on 16 August 2016 providing for the child to live with the mother and for day time with the father on alternate Saturdays and Sundays.

3. Further interim orders were made on 8 December 2016 for time with the father to increase to consecutive daytime periods of 7 days each. Time between the child and the father ceased from 19 January 2017 until 18 October 2018 as the father stated that he was unable to pay for professional supervision.

4. Final parenting orders were made by consent on 5 December 2017 providing for the child to live with the mother and spend time with the father on a progressive basis. Order 5(e) of the Orders relevantly provides:

   5.The child spend time and communicate with the husband as follows:

   …

   e)     as and from 11 May 2018:

   i.each alternate weekend from the conclusion of school Friday until 5:00pm Sunday; and

   ii.each Thursday from the conclusion of school until 8:00pm;

Evidence

1. The father has filed two affidavits in support of his contravention application.  In his affidavit sworn 24 August 2018, the father gives the following evidence:

   a)On 15 May 2018, he received correspondence from the mother’s lawyer, Mr Adam Akbulut, in which he was advised of an interim suspension of the father’s time with the child.

   b)On 17 May 2018, the father was to spend time with the child pursuant to the orders, it being a Thursday.  However he received an SMS from the mother indicating that the child was sick and not at school that day.

   c)The father then collected the child from school for his weekend time pursuant to the orders on Friday 25 August 2018.[1]

   [1]     In light of the remainder of the timeline provided by the father and the fact that 25 August was not a Friday, it appears that this may have been a typographical error and that the father meant that he collected the child on 25 May 2018 for their weekend time.

   d)The father claims that the mother would often refer to the child’s psychologist making recommendations, and on 19 July 2018, he asked for details of the child’s treating psychologist.

   e)On 20 July 2018, he received an email from Ms A who introduced herself as the child’s treating psychologist.

   f)On 30 July 2018, the father received an email from the child’s school indicating that a Student Led Conference would not proceed for the child and the father. The email stated that this action had been taken as a consequence of recommendations made by the child’s treating psychologist and instructions that the mother did not want it to proceed.  The father states that when he was notified of this cancellation, he queried Ms A’s intentions and whether she was possibly biased.

   g)Given his concerns about Ms A, the father states that he was also seeking advice as to whether the child ought to be obtaining psychological assistance from an alternative provider.

   h)The father also states that at about this time he and the mother had been engaged in discussions about the possibility of the child travelling to the Country D. He states that he did not approve of this travel due to safety concerns. No agreement was reached on this issue.

   i)On 8 August 2018, the father then received an email from Ms A indicating that his time with the child was suspended.  He received a similar message on the same day from the mother.

   j)The father takes issue with Ms A’s assessment and recommendation that the child’s time with the father be suspended.

   k)The father asserts that the mother then collected the child early from school on 9 August 2018, 16 August 2018, 17 August 2018 and 23 August 2018, all days when the child was supposed to spend time with the father.  The father states that the child’s time with the father was thus limited in breach of the orders.

   l)The father also takes issue with the assumptions made by Ms A which underpin her recommendations and says that these are made without any input from him.

   m)The father also states that he requested evidence from Ms A and the mother about Ms A’s qualifications in child psychology and details of the child’s treatment, including when it started and how many sessions the child had attended with Ms A. He states that he did not receive a response to this request.

   n)The father asserts that the mother is denying him time with the child because he refused to sign passport documents for the child as requested by the mother.

2. The father has annexed to his affidavit a series of documents.  They include:

   a)Various email exchanges between the father and the mother’s legal representative, Mr Akbulut between 14 May 2018 and 17 May 2018.  This exchange relates a claim by the mother’s lawyer that there had been an incident of family violence to which the child had been exposed at her birthday party.  The allegation was that the mother was “physically assaulted” by the father’s fiancé.  The father denied the allegations and it is clear that he takes issue with the mother’s version of events.

   b)An email exchange between the father and Ms A regarding Ms A’s recommendation that the child’s time with the father cease.

3. The mother did not file any affidavit material in response to the contravention application.

4. The mother gave evidence, which is set out in greater detail below. In essence, she concedes that she withheld the child from her time with the father pursuant to the orders.  However, she says she did so on the basis that she was following a recommendation by the child’s treating psychologist, Ms A, and also having regard to information provided about the child’s distress at school on days when she was to be collected by the father. In particular, the mother refers to an email received from Mr B, the child’s teacher.

5. At the hearing, the father confirmed that he relied upon his affidavits of 24 August 2018 and 6 September 2018.  The father gave oral evidence to the court and was subject to cross examination.  In substance, in cross examination:

   a)He confirmed that he understood that Ms A was the child’s treating psychologist, but did not have any input into her appointment as such and questioned her independence.

   b)Stated that he was not aware that the child had been seeing Ms A since late 2017, before the final parenting orders were made.

   c)He confirmed that on 20 July 2018 he had received email correspondence from Ms A inviting him to attend a session with the child, but chose not to participate.

   d)He also confirmed that Ms A made numerous other attempts to engage him in counselling with the child, which he did not accept.

   e)He stated that he believed that the information provided by the child to Ms A was the result of coaching by the mother, rather than the genuine concerns of the child. The basis for this belief is that he denies that anything untoward happened on 4 August 2018 which would have justified a recommendation by Ms A that time with the father cease.

   f)He did not think it necessary to see Ms A with the child on the basis that the child was happy when she spent time with the father.

   g)He conceded that there was a discussion that he had with the child in July in which he told her that it was important that she not tell lies.

   h)He did not concede that the child showed symptoms of anxiety, and that if she did, this was the result of coaching by the mother.

   i)For these reasons, he did not see any benefit to the child for him to participate in any counselling.

   j)He was concerned for the child’s welfare when he read various correspondence from Ms A. However, it appears that his concern related to his view that the child was being manipulated by the mother to express certain views, rather than any concern that what the child had actually said was true.

   k)Whilst he concedes that the mother stopped the child’s time with the father following the recommendation of Ms A on 8 August 2018, his view is that the mother ought not to have followed that recommendation.

   l)Essentially, he does not accept the recommendation of Ms A for two reasons:

   i)he believes that whatever the child told Ms A was the result of coaching by the mother; and

   ii)he was not involved in the selection of Ms A as the child’s psychologist and therefore has no faith that she has the appropriate skills or training.

   m)He conceded that he had refused Ms A’s invitation to attend sessions with the child, despite Ms A proposing a method by which that could have occurred in a very cost effective manner.

   n)He did not accept that the child had any issues other than that she needed to live with him so that she was no longer subject to ‘coaching’ by the mother.

   o)He seemed to suggest that there was no point for him to attend a session with the child and Ms A, as the child had already been the subject of manipulation and ‘coaching’ by the mother for some 12 months prior. Implicit in this suggestion is that anything that the child said would be a reflection of that coaching rather than the child’s own expressed views.

   p)He stated that he had not observed any of the behaviours or concerns allegedly raised by the child with Ms A. His view is that the child is always happy when in his care and that she had not displayed the behaviours or expressed any of the concerns reported by Ms A, including, for example, the father posting pictures of her on his Facebook page.

   q)Whilst he denied that the child needs to attend sessions with Ms A, he indicated that his concern is the best interests of the child. He said that he would be prepared to participate in a child inclusive conference and follow any recommendations arising from that, or alternatively, if the Independent Children’s Lawyer recommended that the child attend a psychologist, then he would follow that recommendation.

   r)He stated that the child’s school did not raise any concerns with him about the child’s welfare, as now alleged in Mr B’s email of 3 October 2018.[2]

   s)Notwithstanding this, he did not suggest that Mr B was not telling the truth in his email. However, he disputed that the incident which the child allegedly relayed to Mr B actually occurred.  Again, the father’s case is essentially that the child had been coached to relay this information to Mr B, which the father states is not correct.

   [2] Exhibit B.

6. The mother gave oral evidence and was subject to cross examination by the father.

7. In essence, the mother’s case is that she only ceased time with the father on the recommendation of the psychologist received on 8 August 2018.  Indeed, the mother’s case is that even after Ms A recommended that she cease time, she continued to facilitate time on one further occasion.  Ultimately, she followed Ms A’s recommendation as:

   a)It was consistent with what the child had been telling her;

   b)The father had refused or failed to engage with Ms A to address the child’s concerns; and

   c)She had received feedback from the school regarding the child’s anxiety about spending time with her father.

8. The mother’s evidence is that the child had been seeing Ms A since 25 November 2017, prior to the final orders made in this matter.

9. The mother also gave evidence that the child had told her about an incident which occurred at the Crown Casino whilst spending time with the father.  The child told the mother that the father had a fight with his fiancé, his fiancé ran off and the father followed her, leaving the child alone in the Casino.  The mother said that when the child was telling her about this incident the child was crying and said that she did not want to go and spend time with the father and that the father does not care about her. 

10. The mother also gave evidence that the child repeatedly complained about the father taking photos of her.

11. In relation to the note from Mr B, the mother gave evidence that she received a telephone call from the child’s school and was asked to come and pick her up from school as she was upset.  The mother’s evidence was as follows:

    … I saw my child hysterical sitting in the principal office crying and they said to me. “Would you like just – we will leave you – two of you in the room just talk to your child.”  I started talking to her and she said, mummy, I don’t want to go, I’m not – feel comfortable.  … I then talked to … Mr E, X’s teacher, and Ms C and they told me … what X told them about that she doesn’t want to see her father and about this accident which has happened at Crown Casino.[3]

    [3] Transcript page 56 at lines 13to 19.

12. It was clear from the parties’ evidence and their respective answers given in cross examination that there is a significant amount of tension and distrust between them.  They each maintain that they are doing what they believe is in the child’s best interests but they are unable or unwilling to listen to anything that the other might say which might assist them in supporting the child and meeting the child’s best interests.

13. Both parents say that they are supportive of X’s relationship with the other parent, however, it is apparent from their evidence that they struggle to do this in a positive and constructive manner.  For example, the mother, to her credit, conceded that at times she has made mistakes in her dealings with the child.  For example, she said:

    … As I said your honour, I’m not … perfect … I’ve done mistakes as well.  … For example, in a few occasions, I pick up the child and usually have the conversation … We’re just talking to her and I’m asking her, how are you, X, … and on a few occasions when I pick her up from Mr Penn’s care, I ask her the same question.  How are you, blah, blah, blah and we start talking.  On the next occasion when we see … Ms A, X mentioned to her that she feel not comfortable when I ask her these questions and Ms A bring this to me and I stopped.  I stopped asking her.  I tried to listen to another people what they tried to tell me to make sure that my child is comfortable.’[4]

    [4] Transcript page 66 at lines 14 to 27.

14. In cross examination, the father expressly put to the mother that she ceased the child’s time with him because he had refused to agree to her obtaining a passport and travelling with the child to the Country D.  The mother categorically denied this. 

15. Although Ms A was not called to give evidence, some of her email correspondence with the father was annexed to his affidavit and was tendered by the mother in full.[5]  In summary:

    [5] Exhibit A.

    a)On 8 August 2018, Ms A wrote to the father:

    i)Referring to previous emails and confirming that she was the child’s psychologist.

    ii)Advising that over the preceding month “X has consistently presented as extremely distressed following weekend visits with you and Ms F…”[6]

    iii)Further advising that the child’s anxiety levels had increased substantially following an incident on Friday 20 July 2018, when she reported that the father and his fiancé spoke negatively about the mother which resulted in the child running out of the house and down the street.

    iv)Stating that the child reported feelings of sadness following weekends with the father due to constant arguing between the father and his fiancé, including an argument at Crown Casino on 4 August 2018, when the father left the child unattended for some 15-20 mins.

    v)And said:

    Under the circumstances and following my own personal attempts to make contact with you I have recommend (sic) that X’s visits with you be ceased until she is psychologically and emotionally more stable to attend.

    …

    Ms Penn and the appropriate authorities will be advised of my decision to discontinue contact with you for the interim, effective immediately.[7]

    [6] Exhibit A.

    [7] Exhibit A.

    b)The father responded in a lengthy email later that same day in which he put forward his version of events, but confirmed that he would not participate in any interviews with Ms A and X.

    c)Ms A sent a further email on 9 August 2018, in which she said, among other things:

    Mr Penn, please understand that I have asked you to attend sessions with your daughter for a reason, this is completely independent of her mother Ms Penn.  I actually don’t think you realise how little X tells her mother; in fact at times she feels she needs to protect you and that’s not her role as a kid.  No child should be imposed with adult responsibilities.

    …

    I disagreed with Ms Penn’s decision last Friday to allow X to come with you after her emotional meltdown.  X needs to feel supported by both of you and that’s why I’ve stepped in.  Your email is very focussed on Ms Penn and what you believe to be her manipulation tactics, ignoring my level of professionalism and experience.[8]

    d)Again the father responded to this email with a very lengthy reply. On 9 August 2018 he wrote a further email in which he took issue with much of Ms A’s comments.  He concluded by saying:

    I do agree to psychologist visitation, but only by that appointed by the court with the report produced by a court appointed psychologist, as you do not seem to have enough professionalism to guide our situation, for the all aforementioned reasons. (sic)[9]

    e)Ms A replied again, relevantly concluding with;

    … I need to do what’s best for (X) and what’s best for her is if you and X attend together.  If you decide to proceed please let me know.[10]

    f)In reply, the father referred to the orders and noted that they did not require either parent to participate in any sessions with the child’s counsellor. 

    g)The final email from Ms A contained the following statements:

    I appreciate your frustrations regarding the cessation of contact.  As specified for the interim based on what X has reported in addition to her immense distress and anxiety the recommendation remains that contact be terminated at this time.[11]

    [8] Exhibit A.

    [9] Exhibit A.

    [10] Exhibit A.

    [11] Exhibit A.

1. Ms A’s clinical notes were also subpoenaed for the purpose of this application.[12] The notes commence on 25 November 2017 with the first visit and end with notes of 17 August 2018.  The clinical notes contain comments by Ms A which are consistent with the information provided to the father in her email communications with him.  Her progress notes of her consultations with the child indicate that over the period from 4 April 2018 to 17 August 2018, the child:

   a)was becoming increasingly anxious about spending time with her father;

   b)felt that her father was not listening to her and addressing her needs;

   c)raised concerns about the father’s anger management;

   d)discussed her distress about having to do two student led conferences to allow her parents to attend separately; and

   e)discussed her distress at an incident at Crown Casino on 4 August 2018 where she was left unattended for some 20 minutes and felt scared.

   [12] Exhibit C.

2. Ms A’s noted report that the child was “hysterically crying at the idea of going and begging therapist for a break.” [13]

   [13] Exhibit C.

3. The mother also produced an email from the child’s teacher in which he refers to an incident which occurred on 16 August 2018.[14]  Mr B stated the following:

   On the 16^th of August, I observed X quite reserved and emotional during production rehearsal.  When I approached her and asked her if she was ok, she started crying so we proceeded to move away from the other students to have a chat.  X mentioned she was nervous about being picked up by her father.  When I asked why, she retold a story about being left in the city alone last time she was with her father.  She said she was scared and didn’t know what to do.  At this point, we went to Ms C’s office where X retold the story.  We proceeded to call Ms Penn and have X picked up from school.[15]

   [14] Exhibit B.

   [15] Exhibit B.

4. Mr B was not called to give evidence or be cross examined. 

Family Law Act 1975 (Cth)

1. Section 170NAA of the Family Law Act 1975 (Cth) (“the Act”) relevantly provides:

   (1)This division deals with the powers that a court with jurisdiction under this Act has to make orders to enforce compliance with orders under this Act affecting children.

   (2)…

   (3)The other orders that the court can make depend on whether:

   (a)a contravention is alleged to have occurred but is not established (Subdivision C); or

   (b)the court finds that a contravention has occurred but there is a reasonable excuse for the contravention (Subdivision D); or

   (c)the court finds that there was a contravention and there is no reasonable excuse for the contravention (Subdivision E for less serious contraventions and Subdivision F for more serious contraventions).

2. Section 70NAC of the Act further provides:

   A person is taken for the purpose 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 …

3. Section 170NAE of the Act sets out the circumstances in which a person is taken to have had, for the purposes of Division 13A, a “reasonable excuse for contravening” an order. Relevantly for present purposes, that includes at subsection 170NAE(5) of the Act:

   A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

   (a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

   (b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

4. Section 170NAF of the Act provides that, in a case such as this, the standard of proof in a contravention proceeding is on the balance of probabilities. That includes the standard of proof to determine whether a person who contravened an order had a reasonable excuse for the contravention.

5. Section 170NDB of the Act further provides that if the court is satisfied that a person has contravened a parenting order which relates to a person spending time with a child, the court may make an order for make-up time if in the child’s best interests and must consider making such an order.

Consideration

1. As stated, the allegations in this contravention application are that on six occasions between 9 August 2018 and 19 August 2018, the mother breached order 5(e) of the Orders by failing to make the child available for time spent with the father.

2. The mother admits to the contravention, however she says that she had a reasonable excuse for doing so, namely protecting the health and safety of the child.  In essence, she says that she was acting on the recommendation made by the child’s treating psychologist, and that this recommendation was further supported by information provided by the child’s teacher, Mr B. 

3. The father’s case is that the recommendation by Ms A was based on the child following the coaching of the mother, and therefore, this did not provide a reasonable excuse for the mother to cease time with him.

4. It is apparent from the material filed in this matter and the evidence given by each of the parties that there is no trust between the parents and that there is a high level of conflict between them. 

5. The father believes that the mother interrogates the child after each visit with him and that she coaches the child to make disparaging comments about the father.  His perspective is that the child’s time with him and his partner is very positive, that she has fun and therefore he does not believe the mother when she raises any concerns with him about the child’s anxieties. 

6. It is evident from the email exchange between the father and Ms A that not only did the father fail to engage with Ms A to work through any concerns that the child had about her time with the father, but he rejected that anything that the child said to Ms A was in fact the child’s own experience.  He maintained that the child was simply repeating the comments that she was coached to make by the mother.

7. Whilst the father firmly believes this to be the case, on the balance of probabilities, I do not agree. 

8. I am satisfied that the child did have some anxieties arising from her time with the father.  I also am satisfied on the basis of the evidence before the court that the child also had some anxieties arising from the way that the mother asked her about her time with the father.  So much is evident both from the clinical notes of Ms A and the mother’s own evidence that Ms A provided her with this feedback, and that she subsequently has tried to modify her behaviour.

9. Ms A sought to engage with the father to discuss the child’s concerns.  He refused to engage in that process.  As evident from her emails to the father and her clinical notes, Ms A formed the view that the child’s level of anxiety had increased following a number of incidents. In circumstances where the father was refusing to engage in some family therapy with the child, Ms A considered that the best thing to do was to suspend time and provide the child with a break from what she perceived as pressure.  In those circumstances, she advised the mother to suspend the child’s time with the father.

10. The child reported an incident to Ms A which occurred on 4 August 2018.  Ms A’s clinical notes indicate that the child expressed that as a result of this incident she felt that she could no longer trust her father.  The clinical notes also contain the following statement:

    Hysterically crying at the idea of going and begging therapist for a break. If X visits father in present state she will continue to deteriorate emotionally and psychologically.  Client’s psychological well-being has deteriorated.[16]

    [16] Exhibit C.

11. The mother’s evidence is that Ms A recommended that she cease contact on this basis and that she followed Ms A’s recommendation.  She also gives evidence which I accept was consistent with comments made to her by the child.  In addition, I accept the mother’s evidence that on 16 August 2018, she received a call from the child’s teacher indicating that the child was distressed at the thought of being collected from school by the father.  She was asked to and did collect the child from school.

12. Having regard to this evidence, I am satisfied on the balance of probability, that at the relevant times, namely on 9 August 2018, 16 August 2018,17 August 2018,18 August 2018 and 19 August 2018, the mother had a reasonable excuse not to comply with the orders requiring the child to spend time with the father.

13. Having regard to the views expressed by the child’s psychologist, by the child’s teacher and together with her own observations of the child particularly on 16 August 2018, the mother believed on reasonable grounds that it was necessary to protect the child’s psychological well-being by not making her available for time spent with her father.

14. In considering the reasonableness of the mother’s actions, I have also had regard to the fact that the father was given an opportunity to work with the child’s psychologist at the time to improve his relationship with the child.

15. For these reasons, I therefore find that whilst the mother did contravene order 5(e) of the Orders, on the balance of probabilities, I find that she had a reasonable excuse for doing so. 

16. Section 170NDB of the Act requires that I consider whether it is appropriate to make an order to compensate the father for time not spent with the child. Section 170NDB(2) of the Act further provides that I must not make such an order unless it is in the child’s best interests to do so.

17. On the basis of the evidence before me at this point in time, I am not satisfied that it is in the child’s best interests to make such an order. 

18. For these reasons, I dismiss the father’s contravention application made on 24 August 2018.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Mercuri

Date:  17 September 2019