Penrice and Horton

[2014] FCCA 600

FEDERAL CIRCUIT COURT OF AUSTRALIA

PENRICE & HORTON [2014] FCCA 600

Catchwords:
FAMILY LAW – Contravention Application – final parenting Orders made 18 May 2012 – long history of litigation between parties – eight alleged contraventions – one count made out – otherwise dismissed or withdrawn – no penalty imposed.

Applicant: MR PENRICE

Respondent: MS HORTON

File Number: MLC 1634 of 2009

Judgment of: Judge Hartnett

Hearing date: 20 March 2014

Delivered at: Melbourne

Delivered on: 20 March 2014

REPRESENTATION

The Applicant: In person

The Respondent: In person

THE COURT ORDERS THAT:

1. On the hearing of the Amended Contravention Application filed 28 January 2014 (‘the Application’) and with findings made on the balance of probabilities:-

   (a)there is leave to the father to withdraw counts 5 and 7 of the Application;

   (b)counts 1, 2, 3, 4, and 8 of the Application are dismissed;

   (c)count 6 of the Application is made out whereby the Respondent mother MS HORTON contravened without reasonable excuse final parenting Orders made 18 May 2012 with such contravention occurring on 18 August 2013 AND THE COURT NOTES THAT no penalty will be attached to such contravention.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 1634 of 2009

MR PENRICE

Applicant

And

MS HORTON

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. Before the Court this day is an Amended Application for Contravention filed by the Applicant father on 28 January 2014. The earlier Application for Contravention was filed by the father on 4 December 2013. The father filed contemporaneously with the Amended Application for Contravention an affidavit of evidence in support sworn on 28 January 2014.  That affidavit and the affidavit sworn by him on 29 November 2013 contain the evidence on which he relies this day.

2. The earlier Application for Contravention filed on 4 December 2013 came before the Court on 10 February 2014, its first return date.  The father prior to that date filed the further Application for Contravention on 28 January 2014 which he indicated this day was meant to be an amended application. It pleads the same contraventions as the earlier Application for Contravention but adds one further count to allege in total eight contraventions of earlier orders of the Court.

3. The matter was first listed in a duty list on 10 February 2014.  The parties appeared as litigants in person.  The parties have a long history of litigation between them.  It is obvious in this courtroom that the relationship between them is quite toxic.  Their communication is almost non-existent.  The Respondent mother indicated this day that she has not read the totality of the evidence put before the Court by the father in respect of the alleged contraventions because she cannot – she is exhausted by the legal process.

4. This is what is sometimes referred to in courtrooms as a box case file.  The litigation is extensive, the time period over which it has been conducted is lengthy and the parties’ eldest daughter is now over 18 years of age. The substantial applications proceeded last before McGuire FM (as His Honour then was) with His Honour pronouncing Orders and handing down Judgment on 18 May 2012.  Those proceedings commenced on 29 June 2011, concluded on 13 February 2012, with final Orders made on 18 May 2012 (‘the final Orders’).

5. The father has appealed the final Orders in part and I understand from the parties that there was a hearing in that appeal in the latter part of last year and that there has been a further hearing in this week. The judgment of the Family Court of Australia on the appeal hearing remains outstanding.  Nevertheless proceedings continue unabated. 

6. When the matter came before the Court on 10 February 2014, it was adjourned for a half day hearing to this date.  The Court also ordered the parties to attend mediation in (omitted) or its surrounds, as organised by the mother who was to immediately inform the father as to the date and time.  That order has not been complied with.  The mother submitted to the Court there is no longer a mediation centre available to her in (omitted) and that she did make some enquiries further afield with no outcome to date.  The Court determined to proceed with the Amended Application for Contravention filed 28 January 2014 (‘the Amended Application’) this day given that there is hearing time available to the parties; the nature of the Amended Application itself; and the contents of the father’s two affidavits indicating that there continues to be a hostile relationship between the parties not amenable to resolution of matters between them. I have no confidence having regard to the evidence in these proceedings and the demeanour of the parties, the father being insistent and outraged and the mother being withdrawn and non-communicative, that there will not be further proceedings.

7. In respect of the proceedings this day, the Court finds on the hearing of the Amended Application and with these findings made on the balance of probabilities, that the contravention counts 1, 2, 3 and 4 of the Amended Application are dismissed.  Contravention counts 5 and 7 of the Amended Application are withdrawn. Contravention count 6 of the Amended Application is made out and contravention count 8 of the Amended Application is dismissed. 

8. As these findings indicate, a total of eight counts were before the Court.  As the parties are litigants in person, there is a time-consuming element to these proceedings and despite the father being given some indication from the Court on the last time as to his proceeding with the first count, the father determinedly proceeded with that during the course of this morning.

9. Count 1 of the Amended Application was as follows:-

   “The Respondent failed to “keep the father advised at all times of her landline telephone number…”.

   The Court dismissed this count on the basis that at the time the final Orders were made the wife did not have a landline telephone.  The father knew and the Court knew, that the wife had disconnected the landline telephone in or about June of 2009, some years before the final Orders were made.  At the time of the making of the final Orders, they provided for a landline telephone number perhaps in anticipation of there ever being a landline telephone in the household of the mother.  The final Orders also, however, provided for the mobile telephone numbers of the children to be available to the father so that there was no doubt the father would be able to contact his children by telephone and in a manner that was available. 

10. At the time of the making of the final Orders, the wife did not have a landline telephone handset.  The wife had not had such telephone since 2009. In 2014 she still does not. The members of her household, however, each have mobile telephones.  Both children the subject of these proceedings have mobile telephones provided to them by their mother; paid for by their mother; on hand with them at all times; and to the mother’s knowledge, operating and available to them at those times (twice each week that the final Orders provided for) when the father was able to instigate a call to them. 

11. That the father pursued the foregoing alleged contravention was absolutely extraordinary.  It says something about the use of the litigation process by the father to harass the mother.  There was nothing about that count save harassment.  It was completely irrational and completely unfounded. 

12. Count 2 of the Amended Application is also dismissed by the Court. The father alleged:-

    “The respondent failed to ensure that the children are available on their landline telephone number and by the children’s own mobile telephones to accept such calls from the father.

    Further that the respondent has actively discouraged the children from telephone contact in that she has suggested to the children that the order prohibiting her own telephone contact with the children (paragraph 9, of 18 May 2012) is justification for denial of telephone contact with the father and has encouraged the children to laugh and not answer the telephone when it rings at the appropriate time.”

    I am satisfied on the evidence of the mother that she has done what she is able to do to ensure that the children are available to their father on their own mobile telephones and to accept calls from him.  She has done that by providing them with mobile telephones; by paying the bills on the mobile telephones and by ensuring the children have their telephones on them and that they are switched on and thus, able to take calls from their father at the anticipated times as provided for in the final Orders. The mother has advised the children when to expect a call.  She does not stand over them or remain always in their vicinity to observe strict compliance.  But she has done on the evidence more than sufficient to ensure that they are available on those telephones.  Had she not provided a mobile telephone nor a landline telephone; had she provided a mobile telephone but not paid the telephone bills; had she not had discussions with the children about them being available at the relevant times; then there may have been some basis for this alleged contravention.  On the evidence of the father, there is not sufficient evidence that the Court could find on the balance of probabilities that the mother has breached the final Orders.  The latter part of that allegation is really an assertion by the father.  It is not a properly stated allegation and it is just surmise on the father’s part as to what is occurring in the mother’s household.

13. Count 3 of the Amended Application is dismissed by the Court. The father alleged:-

    “Relying upon a disingenuous excuse failed to ensure that the child X spent scheduled time with he (sic) father”.

    This count involves the child X born (omitted) 1997 (‘X’) not spending time with his father on the weekend between the 1^st and 5^th days of November 2013.  The father certainly pursuant to the final Orders, would have expected and should have had that period of time.  What the mother says about it is this: at that time X did not want to go to his father’s home. The father says in his material: you are the mother, you are capable and should direct the children and you should force them in essence to go.  He relies on further evidence as contained in his two affidavits. I note in passing that much of these affidavits contain irrelevant material and material that has already been the subject of litigation and determination. I have pointed out to the father these problems in his evidence but have nevertheless read in its totality his material and give it such weight as is appropriate bearing those evidentiary issues in mind. In addition, included in the father’s material are extracts from the Judgment of McGuire FM (as His Honour then was) which the father states go to establishing that the mother is ongoing a “no contact” mother. The problem with that is this case required an examination of the relevant facts in the context of the alleged contraventions and findings in respect thereto on the balance of probabilities.

14. The father was told by the mother (and knew himself as the father of X), X was in Year 11 and had a Victorian Certificate of Education (‘VCE’) exam in physical education which was occurring some two days after the conclusion of that weekend.  The mother’s evidence was, which I accept, that X refused to go.  X refused to go with his father away from his home for a period from Friday to Tuesday inclusive in the days immediately before his physical education VCE exam.  It is not surprising that he would have been concerned about his study at that time of year.  The father’s response is that he has ample study facilities for his son available to him and that his son was required pursuant to the final Orders to attend. Further, the mother was required to compel that attendance.  The mother’s evidence is that she was unable to compel such attendance.  X she says, is six foot tall and 16 years old. He turns 17 this (omitted). 

15. I accept the mother’s evidence that she had many long discussions with X about the matter and that she tried to get him to attend.  That caused conflict within the household and between the mother and son.  The child was upset, needlessly so and the child Y born (omitted) 2000 (‘Y’) was also upset, she becoming involved in the latter stages of the dispute between X and his mother.  X steadfastly refused to go.  There was little the mother could do about it given the then circumstances (his studies) and the age of X. Her excuse was a reasonable one.  The child, Y who is 13 and whom one would expect would more readily accept instruction from her mother, also did not go on the Friday evening and instead travelled on the Saturday morning.  The mother says as to Count 4, which is:-

    “Without reasonable excuse failed to ensure that the child Y spent scheduled time with the father from 7.30pm on 1 November 2013 until 10.40am on 2 November 2013”

    that she admits Y missed that short period of time at the commencement of the ordered time spent with her father, but says she had just cause and excuse in that Y was upset. 

16. Y did not wish to go to spend time with her father on the Friday. I accept it was a very difficult and very stressful time for Y, her brother and mother.  I accept the evidence of the mother and find on the whole of the evidence that she acted for no longer than was necessary in that particular instance. The mother put Y on a train at 7.30am the following morning to travel by herself into the city to meet her father.  The mother’s evidence is that Y then had a “terrific time” with her father for the balance of the weekend.  I accept that what occurred was for no longer than was reasonable in the circumstances of the case and that a contravention is not made out on these particular facts.

17. In respect of counts 5 and 7 of the Amended Application, those counts were withdrawn by the father in the running of the matter. 

18. Count 6 which is:-

    “Without reasonable excuse on 18 August 2013, the respondent failed to inform the father of an injury to Y, which caused Y to be examined and treated by the (omitted) Hospital”

    is made out in these proceedings.  The evidence of the mother is that Y was taken by her, having slipped on the stairs at home and hurt her back, to the emergency room of the local base hospital.  She suffered a soft tissue injury.  The mother called an ambulance from the home and Y was quite distressed.  Whilst the mother described the incident as an overplayed one and one in which Y was not significantly injured (there being no medical procedure), she was required pursuant to the final Orders to notify the father of this event. 

19. The mother was required to notify the father prudently and immediately of any injury suffered by the children pursuant to order 8 of the final Orders.  The mother failed to notify the father prudently or at all.  She admitted that contravention.  She did not have just cause and excuse.  She simply struggles to communicate with the father at all. 

20. The father is no doubt himself exhausted by the interaction between the parties but he continues the “fight”.  Why one would come to Court about any of these matters I am not really sure.  The proven contravention is not a matter that should be brought before the Court.  It is a matter that should have been discussed between the parties.  The father’s difficulty is the mother will not communicate with him.  She will not communicate with him in part in the context of oppressive litigation between the two of them. 

21. The next and final count, count 8 of the Amended Application which was not withdrawn by the father and denied by the mother, related to the mother not making X available on 12 December 2013 to spend time with his father.  That was alleged by the father to be a breach of orders 4(b) and (c) of the final Orders.  There is no breach.  The final Orders very clearly refer to “Victorian gazetted summer term school holidays” in order 4(b) of the final Orders and “Victorian gazetted summer term school holidays” in order 4(c) of the final Orders.  Those gazetted holidays did not commence until a date after 12 December 2013.  The fact that X ceased school on 12 December 2013, he attending a private school, is not relevant to what are the gazetted holidays and in relation to which the final Orders operate. The final Orders do not provide for a different commencement and conclusion date in school holidays for the two children.  They provide for the one date.  The final Orders set out clearly which school holidays are relevant. This caters for the fact that one child attends a public school and the other a private school.

22. Thus I publish some brief reasons in relation to the findings made.  I add to these Reasons that considerable time has been taken up in the hearing of eight alleged contraventions of the final Orders of the Court and one was successful. I do not propose to impose any penalty with respect to the finding on that count but I do note that it is a positive contravention finding and the mother had an obligation which she did not satisfy.  That she has otherwise had to come here from (omitted) on two separate occasions and meet allegations which are for the most part not made out, is really most unfortunate and will not assist the dynamics between these parties into the future.  As they are both litigants in person and not represented I shall not make a costs order.  Were the parties represented, I would seriously consider making costs orders against the father in respect of the bringing of these numerous and mostly unmeritorious contravention applications.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  28 March 2014