Radcliffe and Radcliffe (No. 2)

[2007] FamCA 553

FAMILY COURT OF AUSTRALIA

RADCLIFFE & RADCLIFFE (NO. 2) [2007] FamCA 553

FAMILY LAW – Contravention of time that a father will spend with the child – One contravention found and one dismissed – No penalty sought or imposed

Family Law Act 1975

APPLICANT: Mr Radcliffe

RESPONDENT: Mrs Radcliffe

FILE NUMBER: CAF 1339 of 2003

DATE DELIVERED: 2 May 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Faulks J

HEARING DATE: 2 May 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Friesen

SOLICITOR FOR THE RESPONDENT: Ms Osmand

Orders

1. In relation to the application for contravention filed by the father on 16 April 2007 the allegations contained in paragraph 6.1.1 and 6.1.2 of the application are dismissed and the allegation contained in 6.1.3 is proved.

2. I decline in the circumstances to impose any further sanction.

3. The primary matter between the parties constituted by the Amended Application filed by the father on 1 March 2007 in relation to which a Response was filed by the mother on 1 May 2007) will proceed before this Court under the Less Adversarial Trial procedure.

4. The following orders are made to facilitate that process:

   a.Each of the parties, if he or she has not already done so, will file the appropriate opening questionnaire on or before noon on Friday 11 May 2007.

   b.No further document will be filed in these proceedings without my leave.

   c.This is a matter in which the son would benefit from having an Independent Children’s Lawyer appointed for him and I request the Director of the Legal Aid Office of Canberra to make the appropriate arrangement for that to occur as soon as possible.

   d.The parties will ensure that the child attends upon a Family Consultant appointed to this matter in these proceedings as soon as practicable and the parties themselves will attend at the request of, and so often, as the Family Consultant will require them to do so.  In particular the Family Consultant will discuss with the child the arrangements he wants (consistent with his age and understanding) to have with each of his parents. He will not be required by the Family Consultant to express any views if he does not wish to do so.  However, the Family Consultant will nevertheless examine and discuss with the child (and subsequently his parents) the reasons why the child may or may not have made the allegations that he has about his father and in particular the allegations about corporal punishment and locking him in the garage.

   e.The Case Coordinator appointed to this matter will communicate with the parties as soon as practicable and arrange for a listing on the first day of the Less Adversarial Trial process to occur as soon as practicable after the parties have filed their preliminary questionnaires. 

5. Otherwise the application for contravention is finalised before this court, all interlocutory applications are otherwise discharged pending the further consideration of the matter under the Less Adversarial Trial process.

6. The time that the child spends with the father will resume in accordance with the orders made primarily by consent between the parties, and the first period of weekend time that the child spends with his father will be on this following weekend, that is, commencing on Friday 4 May 2007.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Deputy Chief Justice Faulks delivered this day will for all publication and reporting purposes be referred to as Radcliffe v Radcliffe.

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAF 1339 of 2003

MR RADCLIFFE

Applicant

And

MRS RADCLIFFE

Respondent

REASONS FOR JUDGMENT

1. In this matter the proceedings before the Court are an application that the mother be dealt with for contravention of certain orders made in relation to the only child of the parties, T.  The child is about seven years old.  The situation about the orders is somewhat complicated.  In June 2005 the parties were before Collier J who made some orders by consent and resolved certain other issues between the parties in a second set of orders made on the same day.  It is in relation to one of those Orders that there were some proceedings brought this day. 

First Set of Allegations

1. In essence, the application before me asserted that there were three groups of orders for which there had been contravention by the mother.  The first related to telephone contacts which it was asserted did not occur - in breach of orders and without reasonable excuse - on 1 March 2007, 6 March 2007, 8 March 2007 and 10 March 2007.  The times at which the telephone calls were made are set out in the application. 

2. In essence, although we proceeded for some time on the basis of a denial of liability on the part of the mother, it was not until we were some way into the evidence when I looked at the terms of the Orders that it became apparent that there is no proof in any of the material filed or in any admission made by either of the parties that the terms of the Order had been complied with.

3. Proceedings in relation to contravention are of a nature which is similar to criminal proceedings because penalties which might be imposed for breach of orders include imprisonment, Community Service Orders, bonds, directions for compensatory time between one parent and another and so forth.  In such circumstances it is incumbent upon those who assert a breach to assert it in a precise and proper way and to provide all reasonable proof for the primary purposes of the allegation.

4. Those allegations set out in paragraph 6.1.1 of the application filed by the father are discharged and dismissed.

Second Set of Allegations

1. In paragraph 6.1.2 it is asserted that there were further breaches of another of the orders made by consent on that day, namely, that there was a failure on the part of the mother, without reasonable excuse, to provide the child to have time with his father on the weekends commencing on Friday 9 March 2007 and 23 March 2007 respectively. 

2. This is asserted to be a breach of the orders made, as I said, by consent, being Order 2(c) which prescribed as from 23 September 2005 and each alternate weekend thereafter the child would spend time with his father from 4.30 pm on Friday until 4.30 pm on Sunday. The child’s mother in these proceedings, while denying that she had failed to provide him without reasonable excuse, conceded that he did not attend with his father for them to spend time together on the two weekends referred to.  In relation to each of the events she said that he was ill at the relevant time and that she had reasonable grounds for believing that it was necessary to protect his health or safety by his not going with his father on those weekends.

3. The evidence about this was somewhat confused and was not particularly enlightened by the cross-examination of each of the parents.  Each of the parents in turn did not materially assist the situation because each of them was determined to some extent to score points off the other parent.  In short, the mother says that the child had a temperature (and stipulated the degree of temperature); that he was in bed and needed to be kept in bed; that he had been sick for some time. The fact that he had been sick was corroborated at least by a medical report leading up to the respective weekends.  The mother said that it was part of her experience, (although the quality of her experience and expertise was not proved), that he needed attention and he would be unlikely to get relevant and consistent attention with his father.  This is to say the least a very thin satisfaction of the [issue on the] balance of probabilities.

4. It is the case that there can be differences between parents about the nature of the health care a child can take.  It is clear that each of these parents has a different view about this matter.  That, however, is not something to be fought out in proceedings such as this.  At the moment at least the child lives primarily with his mother.  It ought to be the case that she makes the primary decisions about questions of his health.  That does not give her an exclusive jurisdiction to do so, nor does it mean that every decision she makes must necessarily follow.  However, it will be nice if sometime before the child becomes an adult, his parents are able to find the ability to co-operate and find ways of determining disputes between them rather than simply fighting them out in a court of law.  The mother may well say it was not her choice to come to court today and I accept that that is the case.

5. Nevertheless, it is clear that neither parent is behaving in a way which would mean that the child would feel comfortable about the fact that he is to have a relationship with each of them. That leads to the second element relating to the reasonable excuse asserted on that day, although I do not accept it was a factor particularly influencing the mind of the mother, and that is that the child reported that because he was breaking wind, his father had on the previous occasion punished him by hitting him and locking him in the garage.  I find as a fact that the father did not lock him in the garage in punishment for flatulence. 

6. However, I am concerned and remain concerned that the child would make such an allegation in a way that possibly provided some solace to his mother for her determination that it would not be a good idea for him to go to his father. It is indicative of the child’s confusion and vulnerability in these circumstances that it would have precisely the opposite effect on the father who would then believe that because it was not factually true, the mother had made it up.  One cannot expect a seven year old to operate with the wisdom of Solomon, particularly when neither parent is prepared to operate even on the basis of commonsense.

7. In my opinion the mother has just, but nevertheless has, made out on the balance of probabilities that she believed on reasonable grounds that her failure to provide the child to spend time with his father on the two weekends referred to was necessary for his health at least, not his safety, and accordingly I find those allegations not made out and I dismiss them.

Third Set of Allegations

1. The third allegation made by the father in paragraph 6.1.3 of his application was that on 7 April 2007 at 12 noon the mother failed without reasonable excuse to make the child available for what amounts to holiday contact.  The point is taken before me that the contact asserted was in accordance with the orders.  I think in practical terms it is.  The father in fact, in his primary documents, failed to establish that there had been a breach of the order because there is in fact no allegation in his affidavit that the child did not attend during the relevant period.  However, the mother properly, and it is to her credit, did not take the technical point and conceded that the child did not spend that period with his father.  On this occasion it was not asserted that he was ill but it was asserted that she had concerns in terms of the Family Law Act 1975 (the ‘Act’) for his safety.  These were spelt out to some extent in a letter that was sent by her solicitors to the solicitors for the father.  This was a letter dated 4 April 2007 and concluded by peremptorily declaring that the child would not be spending time with the father on the upcoming holiday period.  The reasons for it traversed in some respects the events that I have already spoken about in relation to punishment allegedly inflicted on the child because of his flatulence.  I do not know where the truth of all that lies as I have said.

2. I accept that the mother was concerned about these matters. I do not doubt that. I am also somewhat troubled by the fact that the trouble, if I can put it that way, was evident before - about a month before this time - and it was not until the very eve of the holiday period that a denial occurred. In fact it had the effect of pre-empting any application by the father to bring the matter on before the holiday period to ensure that he had an opportunity to have a period with his son if in fact it was found that there was no reasonable basis for his not going with his father. I do not ascribe to the mother an improper motive in doing so. I accept, although it is not in evidence, that it is probably that her failure to bring proceedings in this Court to spend contact previously may well have been brought about by events beyond her control, principally by the failure on the part of the Legal Aid office to make available funds for this purpose. Nevertheless, neither of those factors gives me much encouragement in believing that there was in terms of the Act a belief on reasonable grounds on her part that it was necessary to protect the child 's safety that he not spend time with his father. The letter from her solicitors asserted that she had grave fears for the child spending time with the father. I do not at this point accept that those fears are held and with that gravity, [or] that they were held on reasonable grounds. In my opinion her obligation under the Act of establishing on the balance of probabilities that she had a reasonable excuse for not providing the child for contact on the holiday period commencing on 7 April 2007 has not been made out, and accordingly I find the allegation proved.

3. It has been submitted to me by counsel for the mother that I should not impose any penalty in relation to that breach.

4. In this matter I deem in the circumstances of the matter it inexpedient to inflict any further sanction other than, as Mr Friesen has properly put to me, that there should be a finding that the allegation has been made out. 

5. I will now make, as previously discussed with the parties, orders to ensure that the matter can come on in the ordinary way as a less adversarial trial, although it must be said more in aspiration than expectation in this matter, between the parties in the future.  However, the procedure may well produce different results from the parents.  Perhaps not.

ORDERS DELIVERED

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Faulks

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