Prantage and Prantage (No 2)

[2011] FamCA 645

FAMILY COURT OF AUSTRALIA

PRANTAGE & PRANTAGE (NO 2) [2011] FamCA 645

FAMILY LAW - CONTRAVENTION - Urgent contravention application ex-parte alleged breach of consent orders - Arrest and detention of husband sought - Husband's lawyers not served - Alleged breach of non-communication orders - Further adjourned hearing – Involvement of parties 12 year old child

Family Law Act 1975 (Cth)
Family Law Rules 2004 – Chapter 5.3

APPLICANT: Ms Prantage

RESPONDENT: Mr Prantage

INDEPENDENT CHILDREN’S LAWYER: Mr Mulvany

FILE NUMBER: MLC 11263 of 2008

DATE DELIVERED: 16 August 2011

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Young J

HEARING DATE: 16 August 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Smallwood

SOLICITOR FOR THE APPLICANT: Lampe Family Lawyers

COUNSEL FOR THE RESPONDENT: No Appearance

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Mulvany

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: T.J. Mulvany & Co

ORDERS

IT IS ORDERED:

1. THAT the Application for Contravention issued and listed for hearing this day be adjourned for further hearing to the Judicial Duty List on 5 September 2011 at 10.00 a.m. before His Honour Justice Cronin.

2. THAT the solicitor for the wife forthwith serve personally upon the husband and contemporaneously upon his solicitors on the record true sealed copies of the following documents:

   (a)         Contravention Application filed 16 August 2011;
   (b)        wife’s affidavit filed 16 August 2011;
   (c)         affidavit of Mr K sworn 15 August 2011.

3. THAT the extempore reasons for judgment be transcribed as a matter of urgency, be placed upon the Court file and be made available to all parties.

4. THAT a transcript of the proceedings including the submissions of both Ms Smallwood and Mr Mulvany be transcribed, placed upon the Court file and be made available to all parties.

5. THAT the costs of Counsel appearing for the wife and solicitor instructing and of Mr Mulvany appearing as the Independent Children’s Lawyer be reserved to be determined upon the hearing and outcome of the Contravention Application.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11263 of 2008

Ms Prantage

Applicant

And

Mr Prantage

Respondent

REASONS FOR JUDGMENT

1. Upon the application of the wife to a Registrar of the Family Court this matter was urgently listed before me at 2.15 p.m. this day.  Ms Smallwood of Counsel, instructed by Mr Lampe, appeared for the wife who is in Court.  Mr Mulvany, the Independent Children’s Lawyer, was given short notice of the application and appeared at Court, albeit that he had another matter in another Court and sought leave to depart this Court at approximately 3.25 p.m. and prior to these reasons for judgment being delivered. 

2. The application before the Court is a contravention application issued with leave abridged this day.  The wife is applicant.  It is alleged that the husband has breached the orders of His Honour Justice Cronin pronounced 22 June 2011, and in particular, paragraph 5 thereof.

3. The alleged breaches, in general terms, are that the husband has by email transmission with the eldest child, M, born in December 1998 and now 12 and a half years of age, communicated with her or received emails from her on the 11^th, 12^th, 13^th, 14^th and 15^th of this month.  There are also additional allegations in that, on both 24 June and 3 July, there was time spent by the husband with the children by a telephone conversation and later a text message was delivered to the children.  The central issue, however, is seemingly around the more recent and quite substantial electronic communications by email. 

4. The background I have to this matter is that on 24 December 2010, orders were made after a defended hearing where the parties were each represented by experienced Counsel.  Cronin J on that day pronounced orders and delivered substantial reasons.  I have been requested by Mr Mulvany as the Independent Children’s Lawyer, to read order 8 thereof which directed the role to be played by either Mr Mulvany or Ms G in liaising with the children and explaining to them the orders of the court and supervising certain aspects, on a preliminary basis, of those orders.  I have not had the opportunity to read the substantial reasons for judgment or any of the documents then filed with the court in relation to that defended hearing. 

5. I take this opportunity to emphasise that these are ex tempore reasons delivered without arising from the Court Bench.  I have heard submissions from Ms Smallwood and Mr Mulvany for the past hour and a half or thereabouts and these orders are made on my reading of the current evidence which I will shortly outline, and applying the provisions of the Family Law Act1975 (Cth) and Part 5.3 of its Rules to this current allegedly urgent situation.

6. I record that on 22 June 2011, Cronin J, at a hearing when all parties were represented, made further orders whereby the wife, until further order, had given to her responsibility for long‑term decision‑making for the health and education of the children and for the children to live with her.  The significant order in paragraph 5 thereof reads as follows:

   (5)The husband by himself, his servants and agents (such expression to include the husband’s parents) are hereby restrained from communicating or attempting to communicate with either or both of the children in any manner, including but not limited to text messages, email, Facebook or any other form of social communication.

7. The allegations now before me assert that the husband has intentionally breached those orders.  The affidavit material to which I was directed is comprised of affidavits of the wife, her brother‑in‑law and the reliance upon an earlier affidavit of Dr NZ, filed 1 June 2011. 

8. I have carefully read and evaluated the evidence in the wife’s affidavit.  The preliminary issue before me concerned paragraph 14 thereof, which I read into these reasons for judgment:

   (14)  I seek to have my contravention application initially listed on an ex parte basis for orders to be made for the arrest of [the husband] and for him to be conveyed to the court for further directions.  I say that I am frightened and concerned that if the application is served upon [the husband] in the normal manner prior to the return date, that he may not turn up to court or alternatively, that he may attend at my home or the home of my parents or my sister and threaten or abuse us or indeed, harm us.  I am also concerned that he may seek to contact [M] at her school and in order to protect the safety of all persons, I am of the belief that [the husband] should be arrested and conveyed to court, and then served with the documents.

9. Annexed to the wife’s affidavit are various items of correspondence and more particularly a print out of emails that allegedly have, over recent days, passed between the husband and the eldest daughter pursuant to their internet names and addresses.  I have been taken to various aspects of each of the emails.  I have read all of the emails.  I do understand that there is a high level of abusive language and significant inappropriate comments, and what might eventually be proved to be threats against a court witness or others, including the wife and members of the family. I make no findings at this stage.

10. In the reading of the emails, what is apparent is that there is very much a two‑way level of communication, both by father to daughter and daughter to father, each of them maintaining a level of secrecy.  Very much the actions and purpose of the daughter would appear to be keeping her father informed of the events and happenings within her current household.  All of the communications would appear to record significant love and affection as between father and M.  Again, I make no findings on any of those issues.  I merely record my reading of the emails at face value.

11. The further filed affidavit is from the brother-in-law, Mr K.  This affidavit deposed to his downloading and recording of emails from a family computer so as to preserve their contents and to validate the process by which they have been downloaded and recorded.  Likewise, the emails are annexed to that affidavit. 

12. The earlier filed affidavit which Ms Smallwood focussed upon in her submissions is that of the family consultant, Dr NZ.  There is a substantial report annexed to that affidavit.  The report is dated 30 May 2011 and significantly that was the document that was before His Honour Justice Cronin when the substantial and far reaching interim orders were pronounced on 22 June 2011.  Those orders are not expressed to be by consent though Mr Mulvany volunteered to the Court that Counsel for the husband, Ms Benjamin, on instructions from her client, did not oppose but also did not consent to the orders before His Honour.  That may or may not hereafter be a matter of importance or reflective of any particular position adopted by the husband.  I make no further comment or finding on that aspect of these interim proceedings. 

13. I return to the report of Dr NZ to which I have taken on a page by page basis by Ms Smallwood.  The complexity of this family situation, the involvement of the children and the actuality or potential for their emotional abuse by their father is highlighted in the findings and observations of Dr NZ.  Indeed my attention was directed to the opinion that Dr NZ formed that the father might actually have preferred a situation of the children being removed from his care so as to dramatise his circumstances, create conflict and tension with the children and further increase their sympathy for him.  It was commented that this would feed into a "his paranoid and victimisation ideation".  That may or may not be the case.  I make no finding but clearly it was a matter of very real significance to His Honour on 22 June 2011. 

14. I have read the therapy portion of the expert’s report which supported the basis for the recommendation for the suspension of contact and it is there recorded that the husband had:

    “so little insight into his behaviour and contributions to the children's welfare that more incidents would take place, incited or approved by the husband and the ongoing risks to the children of maintaining their stance and of being reinforced to the father's point of view”. 

    Dr NZ identified that in her opinion the children in the company and influence of their father could return to a robot-like behaviour.

15. Her assessment of the father is found on pages 5 and 6 of the report.  The reference to the many veiled threats were highlighted in submissions before me.  It is said that the father considered himself a victim and intended to make public his treatment through the Court, his complaints of the legal system, of the family therapy system and of others and this is highlighted in the very first paragraph of Dr NZ's report on page 5.  Further, I have read her assessment of the children, their unconvincing accounts of issues and incidents, their exposure to the father's attitude and point of view and the matters highlighted in that report.  In her summary and recommendations Dr NZ stated that:

    “[The husband] presents as someone with significant personality problems.  He seems oblivious to the children's best interest and finds it difficult to separate his own issues from the children's needs.  I consider it likely that he is seeking to use the children to cause pain to the wife who he appears to greatly dislike”.

16. I have also been referred to the further conclusions on page 7 of the report and the complex problems that the 12 year old daughter presents.  It is said that she is a very determined child who appears to feel great personal emotions and apparently harbours intense anger on these issues.  True it is the children may have strong subjective views about their mother.  Certainly they do not want to live with her, according to Dr NZ, but the father's influence was said by that professional witness to be extremely negative towards the mother.  Whilst as an overview I have read that report, the significant matter for me at this ex-parte hearing now before me are the compliance with the orders of His Honour made on 22 June 2011 and I most certainly do not look behind those orders.

17. I return to the primary issue and that is the ex-parte application and expanded oral application of Ms Smallwood on behalf of the wife in accordance with paragraph 14 of the affidavit that I issue a warrant for the arrest of the husband, that he be detained pending service and perhaps a suitable hearing date, obviously on an urgent basis, and that he be brought to Court, served with documents and the contravention application proceed.  I do accept the concern and genuineness of the wife in making the application through her solicitors and of the urgency with which the wife's solicitor has prepared documents and approached the Court but always without notice to the husband's solicitors who remain actively on the record.

18. I have decided that the proper outcome at this stage is that I will not pronounce any order on the material now before me for the immediate arrest and detention of the husband.  I am very mindful of the serious allegations but I must balance all of those allegations with the many complex facts of this case, procedural fairness and a just and proper outcome.  Whilst on one hand there may be very real concern and anguish for the emotional abuse of children, particularly the 12 year old M, nevertheless there is seemingly a real willingness by her to communicate to the father, to want to be with the father and to want to inform the father of events and matters which should at her age be beyond her involvement and immediate concern.

19. In rejecting the wife’s application for the arrest and detention of the father, I have had regard also to the adverse consequences that might flow to the children or the family if the Federal Police were to arrive unannounced at his home or workplace and detain him for several hours or days and his anger and response thereto.  I am otherwise satisfied of the matters raised in Rule 5.12 (a) and (b).

20. Of course, there is a point where he would be released from custody.  That is presumably understood by the wife’s legal practitioners who merely want him arrested and detained so that his immediate reaction upon service can be controlled by his detention.  I am acutely mindful that at all times the husband has had a solicitor and member of Counsel acting for him and I was somewhat taken by surprise but very accepting of Mr Mulvany’s advice to the Court that the husband did not oppose nor consent to the very significant orders made on 22 June of this year. 

21. The husband is entitled to have procedural fairness and proper service of the documents, to know of the case against him, and to prepare a defence and be heard.  If he elects so to do he may too file an affidavit, engage legal representation and be in Court and represented on the hearing of all matters.  I will require personal service upon the husband.  Likewise there needs to be, contemporaneously, service upon his solicitors as a matter of proprietary and courtesy between legal professionals. 

22. I make no specific order but highlight that careful consideration by the wife’s solicitor be given as to the best way to serve documents in conjunction with the husband’s experienced legal practitioner.  The necessity is for service of documents, for the husband to be informed of the pending charges pursuant to the contravention application and for an adjourned hearing to be held.

23. The practical difficulty for the Court is when to return this matter for hearing, at least on an interim basis.  The husband needs reasonable time to take legal advice, to prepare a defence, be it oral or otherwise.  The next available judicial duty list to which the matter can be listed is Monday, 5 September, before Cronin J.  I express no view about whether His Honour could or should be the Judge to hear and determine any contravention matter.  I already know that His Honour’s list that day is over listed.  I had offered to Counsel the opportunity to additionally list this matter for mention before me at an earlier date.  I suggested in open Court 30 August 2011.  However I am specifically asked not to so list the matter on that earlier opportunity. 

24. Whilst I record that was my listing intention, I will follow the course of action requested by the wife in that regard and so not list the matter.  I will reserve liberty to apply to the wife on documentation properly filed and served, or for the husband generally, upon good grounds as I do not commit him to filing any documentation in quasi criminal proceedings.  These documents must also be served upon the Independent Children’s Lawyer.  It may be they will not necessarily involve themselves in contravention proceedings, but they currently are and remain a party to all children’s aspects and the contravention applications seeks to enforce children and parenting orders.

25. I will reserve all costs of and incidental to the appearance at court this day for both Ms Smallwood as Counsel for the wife and Mr Mulvany, appearing as the Independent Children’s Lawyer. 

26. I record only that great care and concern need be had by all interested parties and professionals in this matter.  I do not now criticise the approach being made to the Court today for the orders sought against the husband.  I conclude that the orders sought are not just and appropriate.  I have balanced very much the issues of the children, their wellbeing and best interests, but from my position of no prior involvement in the case and on reading the material before me, I am already alerted to the unique factual circumstance and relationship between the children and their father, or at the least, between the eldest daughter and her father, notwithstanding all prior court orders.

27. That is not to be taken, in any way whatsoever, that I express any view different to the existing orders of the Court. I am simply conscious that in the management of this case and the determination of an oral application for the arrest and immediate detention of the husband, I need bear in mind all matters of and reasonably incidental to that application and the welfare, safety and upbringing of the children and others. That, I have sought to do. In that context, I have been referred by Ms Smallwood to and have considered section 60K of the Family Law Act and generally its contravention and service provisions. I am mindful also of the claims of the verbal abuse or indoctrination of the children. I balance all those issues within the right of the husband to be served, to remain a free man pending service and hearing and to be able to consult his lawyers in a proper manner.

28. I repeat that these ex tempore reasons were delivered on an urgent basis.  I will endeavour to have them published immediately.  I will place them upon the Court file and have them available for each of the three parties to the proceedings.  I accordingly direct the transcript of the whole proceedings to be undertaken as a matter of urgency, and likewise, request that these reasons for judgment delivered ex tempore be urgently prepared. 

I certify that the preceding Twenty-Eight
(28) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 16 August 2011.

Associate: ……………………………………………………………

Date:  …………………………………………………………………