PENNEY & FURLONG

[2016] FCCA 3404

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENNEY & FURLONG [2016] FCCA 3404

Catchwords:

FAMILY LAW – Parenting – contravention applications – mother has been found to have contravened one order – mother’s good behaviour bond extended for a further 12 months – orders varied.

Legislation:

Family Law Act 1975

Applicant: MR PENNEY

Respondent: MS FURLONG

File Number: ADC 626 of 2013

Judgment of: Judge Young

Hearing dates:

28 October 2016, 29 November 2016 and

20 December 2016

Date of Last Submission: 20 December 2016

Delivered at: Darwin

Delivered on: 20 December 2016

REPRESENTATION

Counsel for the Applicant: Ms Read

Solicitors for the Applicant: Legal Services Commission Elizabeth

The Respondent: In Person

ORDERS

1. That pursuant to section 70NEC of the Family Law Act 1975 the Court finds the mother has contravened order 6 of the orders made on 3 December 2015.

2. That the mother undertakes to enter into and be placed on a further good behaviour bond without sureties for 12 months.

3. That all other counts are dismissed.

4. That the order staying the time the child spends with the father be revoked.

5. That should the father become infectious again in respect of his illness MRSA, or should the child have a recurrence of such infection that all time between the child and the father shall cease until the father’s medical health professional, namely Dr M or any other general practitioner treating the father from time to time, clears him of such infection.

6. That the father authorise the mother and the mother be at liberty to obtain such information from Dr M or any other general practitioner treating the father for time to time as she may reasonably request as to the current status of the fathers condition in relation to MRSA.

7. That order 3.2 of the orders made on 3 December 2015 be varied as follows

   (a)That the child X born (omitted) 2008 spend the Christmas long holiday with each parent as follows:

   (i)With the father for the first half and with the mother for the second half of the holidays commencing 2016 and each even numbered year thereafter; and

   (ii)With the mother for the first half and with the father for the second half of the holidays beginning 2017 and each odd numbered year thereafter.

   (b)That in the event that both parents are in the same geographical location as the child during Christmas Day and Boxing Day the child shall spend overnight from 3.00pm Christmas Day until 3.00pm Boxing Day with the parent with whom he not spending holiday time.

8. That order 3.3 of orders made on 3 December 2015 be varied as follows:

   (a)In addition to the holiday time set out in (a), (b) and (c) herein the mother may travel to (omitted) with the child on one occasion each year during a short holiday and the child shall spend the entire holiday with her on the mother giving 14 days notice in advance and or providing travel and contact details to the father and the time the child spends with the father is suspended accordingly.

9. That order 14 of the orders made on 3 December 2015 is varied to add the words:

   (a)“provided that no time should be taken inside the school term unless there is an emergency such as grave illness, death or a funeral of a family member and in that case 24 hours’ notice is required and the period of time during which the child is to be allowed to be removed from school under this clause should be not more than 7 days”.

   (b)And to delete “and to the other parent”.

10. That all outstanding Applications are dismissed and these proceedings are removed from the Active Pending Cases List.

IT IS NOTED:

That the child will be delivered to the father today at 6.00pm at the (omitted) Police Station.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

ADC 626 of 2013

MR PENNEY

Applicant

And

MS FURLONG

Respondent

REASONS FOR JUDGMENT

Ex Tempore

These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

Introduction

1. This is a contravention application or, really, two applications.  One was dated 27 April 2016 and consists of 29 counts.  The counts really are broken up into a number of categories and I will not specify which count relates to each category, but essentially it relates to an allegation that the mother removed the child, X, who is eight years old at the moment from South Australia in breach of orders made by consent on 3 December 2015. 

2. That order provided essentially that there be joint parental responsibility, that the child live with the mother and spend time with the father on essentially a weekend regime.  Christmas school holidays were to be week about and if it was proposed by a party that time be more than one week, it was a requirement of the orders that that be agreed in writing on no less than 14 days notice on provision of a full itinerary and contact details. 

3. There were various other orders as well relating to regular school attendance, each party keeping the other advised of any illness affecting the child that is the child’s illness, and so on.  There is also a requirement that the parties were to consult a paediatrician, Dr R, in relation to the child’s health.  The contraventions of 27 April, as I have mentioned relate to a breach of the order relating to seeking permission in writing before taking the child for more than one week. 

4. Also, there appears to be a requirement that the child not be removed from South Australia. The other contraventions alleged in the 27 April 2016 contravention document relate to non-provision of medical certificates after the child was absent from school, breach of bond and various other matters. Then, in 19 October 2016, a further contravention was filed with 26 counts and again, the counts fell into various categories including the mother not permitting the child to spend time with the father again, failure to provide medical certificates for absences from school again, counts relating to the mother travelling to (omitted) without the father’s permission. In all, there were 55 counts.

5. Many of them – in fact, almost all of them – are repetitive.  It took a morning and if I recall properly, into the afternoon to simply read the counts and ask the respondent whether or not she admitted them.  In my view, alleging 55 counts in the circumstance of this case was unnecessary, time-wasting and oppressive.  It would have been appropriate, in my view – as is usually done in the criminal courts – to take some representative counts and proceed on those.  The whole matter could have been dealt with much more expeditiously. 

6. My criticism of the way the matter was conducted in relation to that aspect is emphasised by the fact that, at the end of the hearing, it became apparent that there was indeed a reasonable excuse as a defence to many if not most of the counts and Mrs Read, who appeared for the applicant said she was abandoning all counts except three which relate to the respondent taking the child to (omitted), which is, of course out of South Australia and without the agreement of the father in writing. 

7. There is no doubt that there was a breach of the orders for those counts.  Mrs Read, ultimately took a very pragmatic, sensible view towards the matter and I’m sure she has done her best to resolve the matter appropriately.  The background circumstances are these.  The parties obviously do not communicate well.  That almost goes without saying.  The mother, in relation to the (omitted) contraventions, or at least in relation to the first one when she proposed to take the child to (omitted) during the Christmas holidays at the beginning of this year, wrote to the father, gave a contact telephone number, gave an address and gave an expected time of return. 

8. I saw nothing whatsoever unreasonable or uncooperative in the letter she wrote to the father. The father simply wrote on that letter, “Denied”, signed and dated it and gave it back to the mother. There was no evidence that he had discussed the matter with her. There was no evidence that he had considered her request and, for some reasonable basis, decided to refuse it. The conclusion I draw is that his denial was simply because he could do it. There was no pretence of reasonableness – no pretence of considering what might be in the interests of the child.

9. That is of great significance because, as it transpired in evidence, the mother, who is from (omitted) and from an (omitted) Aboriginal family, is very anxious and keen to maintain her connection with her family, her culture, her Aboriginality and the ability to regularly return to (omitted) is necessary for that.  That, of course, is an aspect also that ought to have been taken into account when the orders were made but, as far as I can see, was not because of course, one of the matters that is relevant to the best interests of a child, an Aboriginal child, as this child is, is that child’s right to enjoy his or her own Aboriginal culture. 

10. The existing orders do not provide for that, in my view. In any event, the mother, in my view, quite understandably decided to simply thumb her nose at the father and go. She took the view, understandably, that if he wasn’t going to respond reasonably, neither would she, so she simply went. There is no indication in the orders that a party’s refusal of agreement to travel to (omitted), for example, needs to be reasonable.

11. Usually, in a contract governing relationships between private or commercial parties, if there is a clause in a contract permitting refusal of something or other, very often there is a clause saying that that refusal or right of refusal will not be withheld unreasonably.  There is no such condition in these orders and I suppose someone might think there ought to be, but there is not.  So it appears the father was within his strict legal rights not to agree; although I find that his refusal was unreasonable and was not in the interests of the child. 

12. That relates to the contraventions, so I am going to find the three contraventions relating to the departure for (omitted) without the father’s approval to be found as contraventions.  While I can understand the mother’s conduct in all of the circumstances, if orders become inconvenient or unworkable, what she ought to have done was apply to the court to change them, not simply take matters into her own hands.  So, while I understand what she did, she does not have a reasonable excuse for what she did and has contravened the orders. 

13. I will come to the question of penalty in a moment.  Nevertheless, notwithstanding the fact that I have found the mother has contravened the orders, I am satisfied that the orders need to be altered to produce a more reasonable outcome, and I will turn to that again a bit later on.  Another matter that needs to be considered is this:  the contraventions relating to or alleged contraventions relating to the mother’s refusal to permit the child to see the father appear to be closely related to the mother’s concerns about the father’s health.  He has something called methicillin-resistant staphylococcus aureus which is usually called MRSA.  In ordinary parlance its “golden staph”, and it is a bacterial infection, as I understand the materials that have been filed, that occurs in hospitals.  It also occurs in the community.

14. There are different kinds of MRSA according to the affidavit material that has been filed.  Some is apparently “multi-resistant”.  Methicillin-resistant simply means resistant to the penicillin family of anti-bacterial agents.  The different strains of MRSA, according to the material filed, have different consequences and different actions need to be taken.  Apparently the MRSA that the father suffers from is “non-multi-resistant”.

15. None of the materials explain to me what “non-multi-resistant” means. However, I infer that while MRSA, by definition, is resistant to methicillin, in other words, the penicillin family, there may be other agents that are effective against this infection and I take it from the name that a multi-resistant MRSA would be resistant to most, if not all, anti-bacterial agents.  The father’s MRSA is, according to the materials, non-multi-resistant, so I infer from that that it is amenable to medical treatment.

16. The mother found out about the father’s MRSA when she noticed a lesion on X and he was taken to her doctor. It appeared that he had become infected with MRSA.  The father’s failure to frankly discuss with the mother before this happened, the fact of his MRSA, the risks that flowed from it, what steps needed to be taken to protect X and so on is regrettable to use the most neutral word I can find.  In my view, the father had a responsibility to discuss with the mother and inform her well before X was noticed to be infected with MRSA with all that meant.

17. She found out in the worst way imaginable:  by seeing a lesion on the child and having him treated.  She, in my view, is entitled to think that she has been very poorly treated by the father.  To commence a contravention application with the possibility of being sent to gaol on the basis of her ultimate refusal to send the child to the father, in my view, is using the court process in an extremely oppressive way.  I am frankly amazed that Legal Aid provided legal assistance to the father to make allegations in 55 counts, most of which were based on this MRSA issue.

18. I can only assume that the father did not tell Legal Aid about this issue.  Certainly, Mrs Read, his counsel, was surprised to learn of it on the first morning of the hearing.  So I conclude that the father was not frank. I don’t criticise Legal Aid and I certainly don’t criticise Mrs Read. However, it’s an issue that should have been brought to the attention of the father’s legal advisers at an early point so they could respond in an appropriate way.  Mrs Read, to her credit, has responded in an appropriate way by giving appropriate advice and taking an appropriate position on behalf of the father.  Unfortunately, it’s belated.

19. Again, that is not a criticism of Mrs Read.  The fact of the absence of evidence about the meaning of MRSA and its consequences for X led me to suspend his time with the father last time this matter came before me.  That is a direct consequence of the father giving evidence to the effect that this condition is potentially fatal for children.  Now, it appears that once the father’s solicitors or Mr Fraser at least from Legal Aid, got busy and provided some information about MRSA, the situation was not as dire as it might have been imagined at first.

20. Nevertheless, I am satisfied that there have to be orders dealing with this issue and I propose to make those orders once I’ve finished dealing with the contravention. 

21. There is another matter that I wish to mention. The mother gave evidence, which was uncontradicted, that in relation to these matters she sought mediation earlier in the year.  She said she went to a family law mediation practitioner and letters inviting the father to attend the mediation were sent to the address that the mother believed the father resided at, that is, at the father’s parents’ address.

22. I note that there are orders saying that each party is to keep the other advised of any change of address.  I infer from the fact that the mediation letters were sent to the father’s parents’ address that he, in breach of orders, had not passed on his new address to the mother.  In any event, I accept that she caused two letters to be sent to the father seeking mediation.  The father said he never received them.  I have some difficulty accepting that that is possible. Two letters were sent to the father’s parents’ address, an address where he had been living shortly before and were not returned.  I do not propose to make a finding but I consider it very possible that they were received, and I consider it very possible that the father deliberately avoided mediation because he wanted to pursue to the utmost what he considered to be his justified position. He made that clear in evidence. 

23. I found the contraventions in the counts relating to the mother going to (omitted) without permission to be proved but for the reasons I have given I consider that that is appropriately addressed by simply extending the mother’s good behaviour bond for 12 months.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Young

Date:       9 January 2017