Pickering and Pickering (No 4)

[2011] FamCA 514

FAMILY COURT OF AUSTRALIA

PICKERING & PICKERING (NO 4) [2011] FamCA 514

FAMILY LAW - CONTRAVENTION – continuation of the hearing of the father’s contravention application – where the father alleges three counts of contravention against the mother – where the mothers admits contravention in the fifth count – where the mother has not established a reasonable excuse in relation to that count – where no sanction has been imposed in relation to the contravention – where the Court held that the mother has contravened counts six and seven but with reasonable excuse – where previous orders provide that the parties have equal shared parental responsibility – where the Court has the power to make a variation of a parenting order under Div 13A – best interests – orders that the mother have sole parental responsibility and that the child reside with her.

FAMILY LAW - CONTRAVENTION – application by the father alleging contravention of orders by the mother – where it has not been established on the balance of probabilities that the mother has contravened the orders – father’s application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Mr Pickering

RESPONDENT: Ms Pickering

FILE NUMBER: ADF 1919 of 2005

DATE DELIVERED: 23 June 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 23 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: n/a

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. UPON THE COURT FINDING THAT Count 5 (dated 13 October 2010) of the father’s Contravention Application filed on 29 November 2010 (document 115 on the Court file) is proven without reasonable excuse but no sanctions are imposed.

2. UPON THE COURT FINDING THAT Counts 6 and 7 (dated 18 October 2010 and 25 October 2010 respectively) of the father’s Contravention Application filed on 29 November 2010 (document 115 on the Court file) is proven but that the mother had reasonable excuse.

3. The father’s Contravention Application filed on 29 November 2010 (document 117 on the Court file) is dismissed.

4. The father’s Contravention Application filed on 15 February 2011 (document 136 on the Court file) is dismissed.

IT IS FURTHER ORDERED:

1. The father is restrained and an injunction is granted restraining the father from attending within 100 metres of the mother’s residence.

PENDING THE DETERMINATION OF THE OUTSTANDING APPLICATION FOR FINAL ORDERS:

1. The parenting orders in relation to the child H born … June 1995 are discharged.

1. The mother have sole parental responsibility for the child H.

1. The child H live with the mother.

IT IS NOTED that publication of this judgment under the pseudonym Pickering & Pickering (No 4) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1919 of 2005

Mr Pickering

Applicant

And

Ms Pickering

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a contravention application brought by the father, being one of the contraventions in the application filed by the father on 29 November 2010, in which he alleges that on 13 October 2010 the mother enrolled H without his consent at K High School “which ceased his attendance at the [G] High School which he had been attending”.  It is alleged that that was in breach of paragraph 2 of the order of 22 October 2008, which provided:

   “That the parties have equal shared parental responsibility for the children.”

2. The father’s affidavit of 29 November 2010 in paragraph 6 repeats the allegation that the father asserts that on Wednesday, 13 October the mother enrolled H into the K High School without his consent.  The mother admits in her evidence that she enrolled H at the K High School without the father’s consent, but proof as to the actual date of enrolment is certainly not clear.

3. The annexure to the father’s affidavit, sworn on 29 November 2010, is “CTP1” appears to be a note from the K High School providing dates of individual student absence.  It begins with the date 13 October 2010 in term four, week one and appears to say that he was absent for the day and the reason is unexplained. 

4. However, the further affidavit of the father filed in relation to further contravention proceedings in this Court to which he referred the mother during cross-examination, is the affidavit filed by the father on 15 February 2011 to which is attached further information concerning H’s school attendance at K High School.

5. This annexure begins with the date 11 October 2010 being the Monday.  The 13 October 2010 was the Wednesday.  It would appear that that was the first week of the school term.  The accuracy of the date 13 October remains unresolved.  The information that the father is relying upon in relation to the contravention is obviously of a hearsay nature, being information provided to him by the school and the school records indicating both that H’s name appears on the records as at 11 October 2010.

6. Be that as it may, the enrolment of H into the K High School without the father’s consent is clearly conceded by the mother.  The only possible reasonable excuse she puts forward is that H had then come into the mother’s care, wished to remain with her, and that the school at which the father had enrolled H without the mother’s consent in early 2010 was a school which will require 120 kilometres each day of travel.

7. The only attempt at the exercise of the equal shared parental responsibility obligations is the email from the mother, which is exhibit 3.  I have no evidence before me of any response from the father other than the issuing of further contravention proceedings.  It is not clear, therefore, whether the father had any intention of negotiating or attempting to resolve the difficulties with the mother in accordance with the duties of parents;  particularly those who have equal shared parental responsibility within the meaning of the Family Law Act1975 (Cth) (“the Act”).

8. The choice of school is a factor which is usually considered to be part of the parental responsibility which would be covered by the provisions of the order that the parties have equal shared parental responsibility for the children in paragraph 2.  I therefore find that in the strict sense there has been a contravention of the paragraph 2 of the order of 22 October 2008 by the mother when she enrolled the child H in the K School without the father’s agreement or consent.

9. I also find that the mother’s reasons, albeit of a practical and logical nature, are not sufficient to establish the reasonable excuse required in relation to contraventions of Family Court orders.  I therefore find that the mother has contravened the order of 22 October 2008 by enrolling H in the K School without consulting the father other than sending him the letter of 18 September 2010.  I will hear the parties further as to the sort of order that ought to be made by me following my findings that the contravention has been established without reasonable excuse at the end of the hearing of these matters.

10. Yesterday I gave reasons in relation to the contravention orders to have taken place on 11 October 2010.  For similar reasons I find that the mother has contravened the orders on 18 and 25 October in relation to H living with the father.  In relation to the question of reasonable excuse, the mother has again been cross-examined at length about the reasonable excuse she claimed to have had. 

11. The father challenged the mother’s credibility in relation to medical records and her previous evidence that she had taken H to the doctors on 13 September.  The father challenged the mother’s credit by producing medical records in relation to 14 September.

12. The mother’s explanation was that she may have got the dates wrong.  She also gave an appropriate and adequate explanation in relation to the question of the child’s temperature and condition.  I do not find that the challenge made by the father to the mother’s credit calls into question her credibility on that issue or on any other issues.

13. Consistently with the evidence which she gave previously she was concerned about the welfare of H as a result of the information H had provided to the police about the father shoving him.  Subsequently, she learned about this from the police.

14. She has also given evidence that she was concerned about the mental abuse of the child by the father.  The mother has been told by the child that the father has “badmouthed” her and that H is angry with the father because of the ongoing disputes between the parties, the nasty things he says about the mother and the ongoing Court case.  The mother maintained during her cross-examination that she believed that H’s welfare was at risk because of the concern she had for his physical and mental health and also for his wellbeing, should he carry out the threat that he would run away from the house if she required him to return to the father’s home.

15. Therefore, for the same reasons that I gave and the further evidence that I have heard this morning I find that the mother has contravened the orders on 18 and 25 October 2010, but has established reasonable excuse.

16. This is the determination of the contraventions filed by the father on 29 November 2010 and 15 February 2011 in which it is alleged that the mother has contravened paragraph 6 of the order of the Court of 28 October 2010.  The dates in the contravention applications are set out clearly in those applications, and range from various dates commencing on 5 November and running through various dates in November concluding on 6 December 2010.

17. The mother denies contravening the order sought. 

18. The evidence from the father is primarily set out in his affidavits filed at the same time as his contraventions and his oral evidence.  I have also heard the oral evidence of the mother. 

19. The school records appear to indicate that H was not present at the K School on the days mentioned in the contravention applications.  The evidence of the mother is, however, that on occasions during that period, she received texts from the school to say that H had not attended, but when that was checked by staff, H was actually present at the school on some of those days.

20. The resolution of that anomaly or inconsistency has not been able to be resolved due to the only evidence being provided by the father as to H’s attendance or non-attendance at the school being information annexed to his affidavit and information he says he obtained from the staff at the school.  The mother’s evidence was consistent and significantly unchallenged in relation to her clear evidence that on all occasions when H was not sick, she had taken steps to ensure that he attended school by either her or her partner delivering H to school and watching him walk into the school area.

21. The mother’s evidence is also clearly on the days that H did not attend school because he was ill, she had provided medical certificates to the father.  The father accepts that he has received medical certificates for certain days, but asserts that the mother has contravened the Court orders on the other days. 

22. The main consideration is whether there has been a contravention of the actual order of 28 October 2010.  That order reads as follows:

    “During the period of adjournment, the mother do all things necessary to ensure that [H] attend [K High School] on all school days unless the mother obtains a medical certificate for any days or part of a day that [H] is absent from school, and send a copy of such medical certificate to the father by prepaid post within 24 hours of obtaining the same.”

23. That order clearly requires the mother to do all things necessary to ensure that H attends school on school days unless the mother obtains a medical certificate for a day that he is absent from school.  It is clearly the intention of that Court order that the mother is not required to do all things necessary to ensure that H attends school if he is sick.  It is clear from the intention of paragraph 6 that if he is sick then she is required to obtain a medical certificate for that day and provide it to the father.

24. I accept the mother’s evidence that on the days that H was absent from school, she either had a medical certificate for those absences and provided that to the father, or she did all things necessary to ensure that H attend school on those days. 

25. I accept the evidence of the mother that she is now aware of certain days when H was absent from school.  She described it as H “wagging school” without her permission.  She also gave evidence that she had taken steps to speak to H to encourage him to attend school and dealing with him in a way that would encourage him to attend school.

26. I take into account that H was born in June 1995 and is therefore aged 16.  At the time of the alleged contraventions, he was a teenager who has been made aware of, and has been involved in, ongoing proceedings in this Court for many, many years.  The Court notes that the file is actually dated 2005.  Concerns that have been expressed in relation to the child H (and indeed the other children) in the Family Reports.

27. The primary matter that has to be determined is whether, on the evidence before the Court today, the mother has contravened the order in paragraph 6 of the order of 28 October 2010.  On the evidence provided to me, it has not been established on the balance of probabilities that the mother failed to do all things necessary to ensure that H attend K High School on days where H was not ill.  On the days that H was ill, she supplied a medical certificate to the father in accordance with the terms of paragraph 6.

28. I therefore find that the contraventions are not proved on the necessary balance of probabilities. 

29. The current orders in relation to the child, H, are the orders of 25 March 2011:  H live with the mother.  When the contraventions were listed for hearing on 31 March 2011 there was an indication that it might be necessary for the Independent Children’s Lawyer to be called upon to participate in consideration of variation of the parenting orders or penalties that arise from the contravention proceedings.  The matter is listed to come back before his Honour Burr J on 22 July.

30. On 31 March 2011, I released the Independent Children’s Lawyer’s counsel and said that they need not be present for the hearing of the evidence in relation to the contravention hearing, save and except that the Independent Children’s Lawyer may be called upon to participate in any consideration or variation of the parenting orders or penalties that arise from the contravention proceedings.  (Emphasis added).

31. My attitude to the resolution of the proceedings is such that it is in the children’s best interest, and in particular, H’s best interests, for these contravention proceedings to be concluded as soon as possible.  I will not delay the matter any further to seek any input from the Independent Children’s Lawyer about the orders to be made upon the conclusion of the contravention proceedings.

32. The mother is seeking no order as to costs against the father in relation to contravention orders which have been dismissed.  The father is not seeking any specific penalties against the mother in relation to the contraventions which have been found to have occurred without reasonable excuse or with reasonable excuse. 

33. The Court has the power to make a variation of the parenting order in accordance with the provisions of Division 13A, whether the contraventions are being found to have been proven with or without reasonable excuse, and a range of sanctions when the sanction is to be imposed for a breach of the first contravention without reasonable excuse of the primary order.

34. The current primary order provides for H to reside with the mother.  Arrangements have been made by the parents and H for H to spend some time with the father.  H was born in June 1995 and is already 16.  The orders which are in place providing for him to live with the mother should continue.  The question arises, however, whether the orders in relation to H contained in the orders of 22 October 2008 should continue to be suspended.  Paragraphs 1 and 2 of the order of 22 October 2008 were suspended by order of the Court on 25 March 2011.

35. On the evidence that I have heard the orders providing for the parties to have equal shared parental responsibility for H are no longer appropriate.

36. Although there is a presumption in the Act, in relation to shared parental responsibility in relation to H, the evidence before the Court today and yesterday clearly indicates that the parties have no capacity to confer in a sensible, civil fashion about matters concerning the welfare of H. I propose to hear from the parties about suspending that order that the parties have equal shared parental responsibility pending the determination of the final proceedings listed before Justice Burr. I consider that to be in H’s best interests.

37. In relation to the orders of the Court made on 28 October 2010, the father suggests a misunderstanding of the orders in relation to H attending school.  Due to the ongoing litigation, which seems to have been encouraged by the poor wording or the father’s misunderstanding of the wording of, that order, it is also in H’s best interests for paragraph 6 of the order of 28 October 2010 to be discharged.  The parties are unrepresented.  I will give each of them an opportunity now to comment to me upon the proposals I put to ensure that they have procedural fairness.

38. Notwithstanding the mother’s submissions in relation to the change of the handover and collection point that is a matter which requires the appropriate evidence to be heard, which has not been the subject of these contravention proceedings.  I do not propose to vary any order in relation to the handover and collection point of S.  I have heard the evidence of the parties, observed their attitude towards each other in these proceedings and heard their submissions.  I note the ongoing tension between the parents and their inability to behave together in a way that would maximise the best interests of the children.  It is obviously in the best interests of the children for the possible tension to be reduced.  As there is no obvious necessity for the father to attend upon the mother’s residence, and in the past the father has attended uninvited, at the mother’s residence.  This causes considerable concern which may affect the best interests of the children.

39. In relation to the question of other orders that might be made arising out of the contravention proceedings it is clear that the parties are incapable of exercising the duties required of people with equal shared parental responsibility concerning H.  H is 16.  It is not appropriate to give H full responsibility for his own care or to make all decisions.

40. I do not make any order in relation to H spending time with the father.  Lately H has spent time with the father.  The mother has clearly indicated to the Court that she encourages an ongoing relationship between H and the father, notwithstanding the circumstances before the Court.  The orders will be drawn and forwarded to the parties’ last known addresses for service, which are currently at … Street, Adelaide Suburb 2 for you, Ms Pickering, and Mr Pickering, to Post Office Box …, in G.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 23 June 2011.

Associate: 

Date:  28 June 2011