Plum and Haigwood
[2016] FCCA 935
•20 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PLUM & HAIGWOOD | [2016] FCCA 935 |
| Catchwords: FAMILY LAW – Parenting – Contravention Applications – where the father alleges more than 60 contraventions of orders made 7 February 2014 – where all but two of those allegations fail to comply with the Rules of Court and are therefore dismissed – onus and burden of proof – Contraventions not proven – Applications dismissed. |
| Legislation: Family Law Act 1975, ss.70NAF, 70NAC |
| Applicant: | MR PLUM |
| Respondent: | MS HAIGWOOD |
| File Number: | MLC 10108 of 2011 |
| Judgment of: | Judge Small |
| Hearing date: | 20 April 2016 |
| Date of Last Submission: | 20 April 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Plum in person |
| Counsel for the Respondent: | Ms Haigwood in person |
ORDERS
The Contravention Applications filed 12 February 2015 and 26 February 2016 are hereby dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Plum & Haigwood is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10108 of 2011
| MR PLUM |
Applicant
And
| MS HAIGWOOD |
Respondent
REASONS FOR JUDGMENT
(Revised from Transcript)
Introduction
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.
X[1] is just 5 years old. He was born on (omitted) 2011 and his parents have been in and out of court in relation to his care arrangements since they separated finally when he was only weeks old.
[1] I refer to X by this name as that is how it is set out in the orders of 7 February 2014. I am aware that Mr Plum asserts that X’s surname is Haigwood–Plum.
Each blames the other for the disputes that have brought them before the court.
The current Application is a Contravention Application filed by the father Mr Plum (“Mr Plum” or “the father”) in relation to final orders made by Judge Baumann on 7 February 2014 (“the orders”).
The Application comes in two parts: one an Application filed 12 February 2015; and the other an Application filed 26 February 2016, which was consolidated with the first Application so that both came before me today for final hearing.
The first Application contains 32 separate allegations that the mother Ms Haigwood (“Ms Haigwood” or “the mother”) has breached the orders.
The second Application contains a further 35 allegations of contraventions.
So, the issues in this matter are first whether Mr Plum has made out his case in relation to the 67 allegations he makes, and second, if he has done so, whether Ms Haigwood has a reasonable excuse for not complying with the orders.
Background
The parties were in a short lived relationship between June 2009 and March 2011, cohabitating between January and November 2010 and between February and March 2011.
X is the only child of that relationship.
As previously stated the parties have been in and out of court with disputes relating to X’s care since (omitted) 2011 when he was 6 months old.
Procedural History
These particular proceedings were commenced when Mr Plum filed an Application - Contravention on 11 February 2015.
In that Application Mr Plum alleges that Ms Haigwood has breached various orders on 32 occasions, some being multiple breaches alleged to have been committed on the same day.
Contemporaneously with that Application Mr Plum filed an Affidavit – Non-Filing of Family Dispute Resolution Certificate sworn 9 February 2015.
He filed a further Affidavit on 17 April 2015 in relation to the allegations.
The matter first came before me in the duty list on 29 April 2015 with both parties appearing in person and I set it down for final hearing for today, 20 April 2016.
On 26 February 2016 Mr Plum filed a further Application – Contravention in which he alleges a further 37 breaches of the orders by Ms Haigwood. That Application was given a hearing date of 20 April 2016, thus consolidating it with the original Application.
Contemporaneously with the second Application, Mr Plum filed two Affidavits sworn 22 February 2016 which when placed together, are approximately five centimetres thick and consist mostly of Annexures containing screen shots of text messages passing between the parties.
On 6 April 2016, Ms Haigwood filed an affidavit in which she says, essentially, that she wishes to reopen all parenting matters. I note that that affidavit does not accompany any Application to the court.
The matter came before me for final hearing this morning 20 April 2016.
After explaining the Rules of the Federal Circuit Court of Australia in relation to Contravention Applications to Mr Plum, I dismissed 65 of the 67 allegations because the Application documents did not comply with the Rules.
That left two allegations to be heard:
(a)that on 2 March 2014 at 6 PM at (omitted), in contravention of paragraph 20 of the orders of 7 February 2014, Ms Haigwood without reasonable excuse “sticks her finger up at me in front of X” (“the first allegation”); and
(b)that on 2 March 2014 at 6 PM at (omitted), in contravention of paragraph 7 of the orders of 7 February 2014, Ms Haigwood without reasonable excuse “walks up to my car opens the door and tries to remove X from his car seat” (“the second allegation”).
Paragraph 20 of the orders states as follows:
That each parent is restrained by injunction from denigrating the other parent or the other parent’s extended family, or allowing any other person to do so within the hearing of or in the presence of X.
Paragraph 7 of the orders states as follows:
For the purpose of the father spending time with X the mother shall deliver X to the father at the commencement of time and the father shall return X to the mother at the conclusion of time, if changeover does not take place at school and each parent is restrained from alighting from the car at changeover.[2]
[2] Most of the orders made on 7 February 2014 were made by consent although there were several issues which were decided by Judge Baumann on that day. The orders are headed "FINAL ORDERS BY CONSENT AND UNDERLINED ORDERS BY THE COURT"
I put those allegations to Ms Haigwood and asked whether she would like to admit or deny them. She responded that she denied both allegations.
Mr Plum then gave sworn evidence about the allegations and was cross-examined about his evidence very briefly by Ms Haigwood.
I then asked Ms Haigwood to state her response to the allegations and again she responded with a denial of both allegations.
Ms Haigwood was then sworn in and she gave her evidence of the events alleged in the Application.
Mr Plum cross-examined her very briefly and neither party chose to make any further submissions to the court.
I stood the matter down for consideration and now provide my Reasons for Judgment and the conclusion I have come to in relation to the allegations.
The Evidence
The father’s evidence in relation to the first allegation is contained in his affidavit sworn 9 February 2015 and filed 12 February 2015, and in his oral evidence given at court.
In paragraph 7 of that affidavit the father states the following:
Ms Haigwood abuses me and sticks her middle finger up at me as she walks off with X please see attached text message marked annexure P 3
The Annexure referred to was unfortunately not attached to the court copy of that document. In those circumstances Mr Plum tendered that Annexure and it was entered into evidence as an exhibit in support of his case.
The Annexure consists of screenshots of the father’s phone which contain a text message conversation between the parties on 2 March 2014 between 6:35 p.m. and 7:17 p.m. I set out the relevant parts of that conversation as follows:
Mother: Mr Plum you have not returned X’s jumper
Father: I tried but you stuck your middle finger up at me and walked up the driveway with your middle finger in the air waving at me.
Mother: I made no such gesture your an absolute liar (sic).
At trial, Mr Plum initially gave evidence that on (omitted) 2014, which was X’s third birthday, he had returned X to his mother a few minutes late and that he had bought X fish and chips to eat on the way home. He said that when he arrived at the mother’s home, the mother had approached his car and said that X “shouldn’t be eating that shit” and that she had then removed X from his car and walked up her driveway with her middle finger raised. It was his evidence that X had been standing right beside Ms Haigwood when she had raised her finger.
However, later in his evidence he amended that evidence, saying that the day on which he had bought X fish and chips was a different day to the occasion on which Ms Haigwood had raised her finger at him. He nevertheless insisted that she had raised her finger at him in a derogatory gesture on 2 March 2014 while X was present. Indeed it was his evidence that Ms Haigwood had been “half a metre away” when she made the gesture and that X had been standing right beside her at the time.
Under cross-examination by Ms Haigwood, Mr Plum acknowledged that Ms Haigwood had denied the accusation by text message on the day that he had made it (and indeed within an hour of him making it), but it was his evidence that Ms Haigwood’s text message had not contained the truth of the matter.
In relation to the second allegation, Mr Plum’s affidavit material merely says the following at paragraph 8:
Ms Haigwood walks up to my car and tries to remove X from his car seat
At trial Mr Plum said that he had pulled up outside Ms Haigwood’s home at about 6:00 p.m. on 2 March 2014, and that Ms Haigwood had walked up to the back passenger door of his car, opened the door and removed X.
He was not cross-examined about that evidence.
Ms Haigwood’s evidence was given under oath in the witness box this morning.
In relation to the first allegation, it was her evidence that she had not raised her finger in a derogatory manner towards Mr Plum on 2 March 2014, nor indeed on any other occasion. She said that she had never “stuck my finger up at Mr Plum with X present”.
It was her evidence that because X was “so little” at the time, she would have been holding him in her arms, implying that it would have been impossible for her to have raised her finger in the manner alleged.
Further, Ms Haigwood said that she had immediately responded to Mr Plum’s text message which accused her doing so within the hour on that evening because his accusations against her had “become habitual” and she had therefore denied the allegation as soon as possible after it had been made.
In relation to the second allegation, Ms Haigwood said that she had never opened Mr Plum’s car door and removed X and that she did not even know what kind of child restraint he had had in his car at that time.
She said that she could not recall the specific instance of 2 March 2014 in that regard but said that X would not have been able to get out of the car by himself at three years of age and that she remembered that the parties had had to “graduate” X getting out of the car.
It was her evidence that her then residence had a long driveway and that she would usually be either standing at the front door or pottering in the front garden while waiting for X to be returned to her. She said that she would not leave her property at changeover when X was returned to her.
In cross-examination Mr Plum put to Ms Haigwood that she must recall X’s third birthday because he had been wearing a brand-new pair of pink gumboots.
Ms Haigwood replied that she did not recall that specific occasion but acknowledged that X had owned a pair of pink gumboots, which he had loved, at about that time. She said that she recalled that it must have been at about that time because of the size of the gumboots.
The Law
The law in relation to Contravention Applications is found in S. 70NAC of the Family Law Act 1975, which states:
Meaning of contravened an order
A person is taken for the purposes 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; or
(b) otherwise--he or she has:
(i) intentionally prevented compliance with the order by a person who is bound by it; or
(ii) aided or abetted a contravention of the order by a person who is bound by it.
The onus is on Mr Plum, as the Applicant, to prove his case. He must prove that case on the balance of probabilities.[3] In other words, he must prove to the court that it is more probable than not that Ms Haigwood either intentionally failed to comply with paragraphs 20 and 7 of the orders or that she made no reasonable attempt to comply with those paragraphs.
[3] S. 70NAF Family Law Act 1975
I note that Contravention proceedings are not matters in which the court must have regard to the best interests of the child as its paramount consideration but only to whether a Contravention has been committed without reasonable excuse.
Conclusion
In relation to the first allegation, that Ms Haigwood raised her finger to Mr Plum in a derogatory gesture at about 6:00 p.m. on 2 March 2014 at (omitted), I find on the evidence before the court, that Mr Plum has failed to prove that allegation on the balance of probabilities.
The evidence in relation to that allegation is a matter of “he said, she said” and Ms Haigwood’s evidence that she immediately denied the allegation when it was put in writing in Mr Plum’s text message because those allegations had “become habitual” has a ring of truth about it.
In addition, Mr Plum’s evidence about precisely when the alleged behaviour had taken place was not convincing.
I therefore cannot make a finding, on balance, that Ms Haigwood breached order 20 of the orders at about 6:00 p.m. on 2 March 2014 at (omitted).
In relation to the second allegation, I note that the wording of the order alleged to have been breached states that “each parent is restrained from alighting from the car at changeover”.
There is no mention in that order of any restraint on a parent approaching the other’s car.
Even if I were to find as a matter of fact that Ms Haigwood had approached Mr Plum’s car as alleged, that would not constitute a breach of paragraph 20 of the orders.
As no offence is disclosed by that allegation in relation to Ms Haigwood, I will dismiss that Application.
I do not believe for one moment that this will be the end of this matter.
Mr Plum presents as a somewhat intense man who has some difficulty in containing his emotions. He is clearly furious with Ms Haigwood at what he sees have been multiple contraventions of court orders on her behalf. His frustration at having all but two of these allegations dismissed before the trial even started in substance was palpable and there was one occasion when I had to admonish him for speaking over Ms Haigwood (and me) and not allowing her to answer his question. I have little doubt that he will file further applications in relation to that matter.
As I said during the trial, when 67 allegations are made, at least some of them might be expected to be proven.
Ms Haigwood presents as a much less emotional person, whose evidence was clear and cogent. She expressed anger at Mr Plum for having brought her to court yet again with further allegations that she had breached the orders.
However, given the history of this matter and I note that the file takes up a full box in the Registry’s records and given that even in the setting of the trial the parties were unable to refrain from bickering with each other, I do not place all the blame for these disputes on either party alone. This is clearly a situation for which both parents must take some responsibility.
What is also clear is that the constant disputes, whether conducted in the courts or not and each party’s obvious anger with the other, cannot provide an atmosphere of safety and security for X.
Put simply, his parents are at war and they have been for his whole life. The deleterious effect of that circumstance on his emotional and psychological development and on his own ability to form healthy relationships as he grows up is immeasurable.
There is no doubt that each of these parents love this little boy dearly and, at least consciously, want only what is best for him.
What they don’t appear to understand is that rigidity of expectations and/or cavalier disregard for court orders, will only further damage their son.
I am aware that this is not the first time that a judge has communicated to these parties in these terms. It does not seem to have made much difference to their behaviour (thus my lack of confidence that this will be the last set of proceedings between them) and one can only hope that both will come to their senses and work together as parents for the health and well-being of their dearly loved son.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 7 June 2016
Key Legal Topics
Areas of Law
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Civil Procedure
Legal Concepts
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Abuse of Process
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Jurisdiction
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Standing
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