Ralph and Ralph
[2009] FMCAfam 1241
•2 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| RALPH & RALPH | [2009] FMCAfam 1241 |
| FAMILY LAW – Contravention of parenting orders – school aged children – parents unable to communicate – addressing cause of failure to communicate – appropriate sanctions. |
| Family Law Act 1975 – Part VII – Division 13A |
| O’Brien (1993) 16 Fam LR 723; FLC 92-396 Stevenson v Hughes (1993) FLC 92-363 |
| Applicant: | MR RALPH |
| Respondent: | MS RALPH |
| File Number: | NCC 1616 of 2008 |
| Judgment of: | Coakes FM |
| Hearing date: | 9 November 2009 |
| Date of Last Submission: | 9 November 2009 |
| Delivered at: | Newcastle |
| Delivered on: | 2 December 2009 |
REPRESENTATION
| Solicitor for the Applicant: | Ms Olsen |
| Solicitors for the Applicant: | Boyd Olsen Lawyers |
| Respondent Mother: | Appear in person |
ORDERS
The contravention by the mother on 5 November 2008 of Order 8(a) of Orders made in the Family Court of Australia at Newcastle on 27 May 2008 is found proved.
The mother has proved she had a reasonable excuse for the said contravention.
The contravention by the mother in March 2009 of Order 12(d) of Orders made in the Family Court of Australia at Newcastle on 27 May 2008 is found proved.
The mother has not proved she had a reasonable excuse for the said contravention.
The contravention by the mother on 21 May 2009 of Order 3(a) of Orders made in the Family Court of Australia at Newcastle on 27 May 2008 insofar as it relates to the child [X] born [in] 2005 is found proved.
The mother has proved she had a reasonable excuse for the said contravention.
IT IS NOTED that publication of this judgment under the pseudonym Ralph & Ralph is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT NEWCASTLE |
NCC 1616 of 2008
| MR RALPH |
Applicant
And
| MS RALPH |
Respondent
REASONS FOR JUDGMENT
The proceedings
On 18 June 2009 the father filed an application for contravention of parenting orders alleging that the mother contravened on three separate occasions parenting orders made in the Family Court of Australia at Newcastle on 27 May 2008.
In support of such application, the father filed an affidavit sworn by him on 1 June 2009.
On 28 July 2009 the mother filed her affidavit in response sworn
24 July 2009.
At the hearing on 9 November 2009 the father was represented by
Ms Olsen, a Solicitor. The mother has at all times represented herself and prepared her own affidavits.
Original Orders
The orders, that are the subject of the contravention application were made on 27 May 2008 in the Family Court of Australia at Newcastle.
Those orders which the father alleges the mother contravened are as follows:
Order 8:
On the parents’ birthdays as follows:
(a)If the father’s birthday falls during a period the children are not otherwise spending time with him and if it falls on a weekday or a school day for either of the children, between 4pm and 6pm that day;
Order 12:
That the parties jointly share all duties and responsibilities for making decisions concerning major long-term issues about the children’s care and development, with the parties to consult each other and make a genuine effort to come to a joint decision about such issues as they may arise, including but not limited to the following:
(d) Decisions about the children being involved in sporting, cultural, artistic or any other extra curricular activities.
Order 3:
That the children may spend time with the father at all such times and upon such arrangements as they may agree but failing agreement as follows:
(a)Each alternate week, from Thursday from conclusion of school until Monday at commencement of school commencing 29 May 2008.
The hearing
The mother admitted each of the allegations put to her but relied on a reasonable excuse in relation to the fathers’ birthday and [X] not spending time with her father from 21 May.
The mother elected not to cross-examine the father.
The mother gave evidence and was cross examined by Ms Olsen. The mother was frequently upset and sobbed during the course of the hearing including her submissions.
I am left with the very distinct impression, and find on the evidence that the relationship between the parties is very poor with a complete breakdown in the ability to communicate in a constructive and meaningful way about their children and about matters of importance concerning their children and in matters concerning the best interests of their children. I am satisfied that the parents have not been able to resolve their continuing conflict.
At the conclusion of the evidence and submissions, I adopted
Ms Olsen’s sensible suggestion that the parties be referred to Primary Dispute Resolution with a view to improving their communication and before considering any sanction. I made Orders accordingly on the day of the hearing. The matter will be adjourned to a later date to ascertain the outcome of the Primary Dispute Resolution before I consider any question of sanction, if indeed any is to be applied.
The first contravention – the Father’s birthday
The mother was not challenged as to her evidence, and therefore I accept such evidence, that on Sunday 26 October 2008, some days prior to the father’s birthday she telephoned the father and left a message for him[1] to the effect that she would bring the children to the prescribed place of changeover, [W] Shopping Plaza[2] at 5.30pm for two hours as [Y] had gymnastics on 5 November 2008 from 4.00pm to 5.00pm.
[1] Paragraph 8 of the mother’s affidavit
[2] Paragraph 9 of the Orders 27 May 2008
The father makes no reference to such message in his affidavit but refers instead to a telephone conversation he asserts he had with the mother on the morning of 5 November 2008 when he concedes the mother told him he could spend time with the children between 5.30pm and 7.30pm.
The father’s unchallenged evidence is that the mother told him that [Y] was doing something at the prescribed time of 4.00pm and the father responded to the effect that he did not think 5.30pm to 7.30pm was a suitable time in terms of the children having dinner and getting ready for bed.
I accept the mother’s unchallenged evidence that [Y] attended gymnastics between 4.00pm and 5.00pm that day and that she took both children to [W] Shopping Plaza at about 5.25pm where they met the father and his mother Ms R. Accordingly, the mother did exactly what she told the father, on either version, she said she would do.
The father asserts the mother did not deliver the children to him until 6.00pm and that evidence is not challenged by the mother.
I prefer the mother’s evidence in this respect and it was not challenged in cross examination.
The children were not returned to the mother at 7.30pm at [W] Shopping Plaza and the mother recounts a conversation she had with the father at 7.41pm when he told her she could not tell him what to do and terminated the telephone call. The mother made further telephone calls to the father and just before 8.00pm received a telephone call from the father’s mother, Ms R saying she had the children at [W] Shopping Plaza where she collected the children just after 8.00pm.
The mother asserts the children spent 2½ hours with the father on his birthday, and that evidence is unchallenged.
I find on the balance of probabilities that the father received the mother’s telephone message of 26 October 2008 and knew [Y] was attending gymnastics between 4.00pm and 5.00pm. The father did not adduce any evidence that he had not received the mother’s message, and had ample opportunity to do so.
I find that the father acquiesced in the mother’s request on or about
26 October 2008 such that the mother relied upon such acquiescence as an agreement to vary the prescribed time from 4.00pm until 5.30pm. I find it was not open to the father to assert a contrary arrangement on the morning of his birthday.
Whilst there is no evidence before me that the father agreed to the later period of time and his case is that he in fact did not agree, it seems to me that in the face of a reasonable request by the mother, and in which the father acquiesced and given the father was not precluded from spending time with the children on his birthday, the mother has established a reasonable excuse.
I take into account that the father spent ½ hour extra with the children on this occasion in spite of his statement to the mother[3] that he thought 7.30pm was not a suitable time for the children to be returned to the mother for the reasons he gave.
[3] Paragraph 13 of the father’s affidavit
I am satisfied on the evidence that the conduct of the mother on this occasion was reasonable, and in the best interests of the children and that the mother has established a reasonable excuse for this occasion.
The second contravention – Soccer
The mother made a conscious decision, for the reasons that she gave in her affidavit, and which are unchallenged, to enrol [Y] in soccer and failed to consult the father.
The father discovered that [Y] had been enrolled in soccer and instructed his Solicitors to inform the mother that whilst he was happy for [Y] to play soccer if that was what he wanted to do, and assured the mother that he would be involved in this activity whilst [Y] is in his care, complains, not unreasonably, that he was not involved in the decision.
The mother’s unchallenged evidence is that [Y] secured a promise from his mother not to tell his father of his wish to play soccer. [Y] was worried about his father’s reaction when it appears on [Y]’s evidence the father has a preference for rugby league or rugby union[4].
[4] Paragraph 15 of the Mother’s affidavit
The mother ensured that soccer training occurred when [Y] was in her care so as not to interfere with the father’s time with him.
I find on the evidence that what occurred on this occasion is a sad reflection of the parents’ inability to communicate. The evidence establishes that [Y] wanted to play soccer, he was worried about his father’s reaction if his father were to be told, and not surprisingly, given the conflict, [Y] presumably could not bring himself to talk to his father about his wish, [Y] is no doubt well aware of the conflict between the parents. The mother elects, unwisely, not to tell the father and the father finds out by other means.
It is not surprising that this incident only adds fuel to the continuing dispute between the parents leading only to further lack of trust.
The third contravention – [X]’s eye operation and not spending time with her father
The mother was cross examined extensively about the reasons for the mother’s decision not to permit [X] to spend time with the father from Thursday 21 May until Monday 25 May when she was otherwise due to spend time with him. The father did however spend time with [Y] during that period.
The incident flows from an operation [X] underwent on her eyes at [W] Private Hospital on 14 May 2009 to correct a squint.
The mother describes the operation as involving the cutting of the muscles on the inside of both eyes, repositioning the muscles and stitching them back to the eyeballs.
It is common ground that both parents attended an appointment on
24 March 2009 with Doctor H, the operating surgeon. The father asserts and it is unchallenged[5] that at such appointment, the Doctor did not say anything to the father about special care arrangements other than drops and cream to be applied to her eyes and in particular, that the Doctor did not say anything to him about [X] requiring a recovery period of three weeks.
[5] Paragraph 32 of the father’s affidavit
The father relies upon a pamphlet attached to his affidavit[6] which says in part:
[6] Exhibit WPR 3
“Most children are back playing normally the day after the operation.”
But goes on to say that some children have double vision for a few days after the operation, most children are a bit clumsy for a few days while adjusting to the new position of the eyes and drops and ointment are instilled three times a day whilst the eyes are healing to prevent infection and to minimise scarring.
The operation occurred on Wednesday 14 May and was performed under general anaesthetic for one hour. It seems [X] was in hospital for that day only.
The mother annexes to her affidavit[7] a report from Doctor H setting out a description of the operation and his observations of [X] at a follow up consultation on 26 May.
[7] Annexure “E” to the mother’s affidavit
The evidence establishes that [X] remained with her mother for the following two days, Thursday and Friday, 15 and 16 May following the operation and did not go outside and slept most of the day. She remained at home over the weekend of 17 and 18 May and went back to Pre School on Monday 19 May from 9.00am to 11.15am.
I accept the mother’s evidence that she was able to administer the ointment and drops in the days before going back to Pre School on the Monday and both before and after Pre School.
I accept the mothers evidence that the mother informed [X]’s Pre School teachers that she was not to be allowed outside in the wind and not allowed to get anything in her eyes.
The mother gives evidence, which I accept that immediately following her operation on 14 May, Doctor H spoke to the mother at the hospital[8] and emphasised the importance to her of the following three weeks as to her treatment with eye drops and ointment to be applied three times each day, how this was to be done to a young child of [X]’s age with reluctance to anyone touching her eyes. I accept the mother’s evidence that Doctor H stressed the importance of the next three weeks for healing and that she was not to go outside on windy days nor get her eyes wet for fear of infection.
[8] Paragraph 26 of the mother’s affidavit
Late on the evening of Wednesday 20 May the mother sent an email to the father’s Solicitors[9] to the effect that she had decided that it was in [X]’s best interests for her to remain in her care over the weekend of 21 – 25 May on the basis that three weeks convalescence was required.
[9] Annexure “F” to the mother’s affidavit
Whilst the mother also asserted that [Y] would not be able to see his father, in fact that occurred and with the mother’s blessing[10].
[10] Paragraph 36 of the father’s affidavit
The mother asserts[11], and this is unchallenged that she left a message either by telephone or text with the father on 21 May to the effect that she had received his four text messages and said if that he genuinely wanted to discuss [X]’s operation with her then he should call her. The mother did not hear from the father.
[11] Paragraph 28 of the Mother’s affidavit
I find on the evidence that as a consequence of the inability of the parents to talk to each other, that the father was not told of Doctor H’s advice to the mother immediately after the operation on 14 May and the particular care procedure involved. In my view, the pamphlet annexed to the father’s affidavit is in general terms and cannot be a substitute for specific advice given by a Doctor to the parent of a young patient immediately following surgery and at the hospital.
It was put to the mother that she could have given the father instructions in writing on how to administer the medication and the drops. The mother said that Doctor H had shown her how to hold [X] and that as a four year old she would be reluctant to let anyone touch her eyes. The mother said, and I accept, that she would not have been able to give comprehensive written instructions to the father.
It was suggested to the mother that she could have told the father directly of the necessary treatment with the appropriate instructions as Doctor H had demonstrated to her. The mother said that it would not be possible for her to do this as she has tried on previous occasions to talk to the father about the children and he would not let her say a word. The mother said:
“We are not able to communicate effectively at all.”
The mother deposed to not being satisfied that the father would know how to administer the eye drops and ointment and expressed a concern that the father may take [X] to the swimming pool contrary to instructions that she was unable to get her eyes wet for three weeks.
When it was put to the mother that she did not have any concerns about the father’s ability to give the medication and look after [X] appropriately she said:
“I had concerns that the father would not provide appropriate care and give the drops and ointment and I am not sure he understands the seriousness of the operation. This is not minor surgery for a four year old child.”
I find on the evidence before me that the mother had a reasonable excuse for not complying with the order. In particular, I find that the mother believed on reasonable grounds that not allowing [X] to spend time with the father was necessary to protect her health on this occasion. My reasoning is that the father did not have the benefit of the direct discussion with Doctor H immediately following the surgery. Such is the level of conflict between the parents that the mother was unable to communicate effective instructions to the father and even if she had been able to do so, had no faith in his ability to provide appropriate care or follow those instructions.
The mother gives unchallenged evidence of the father apparently behaving in an arrogant manner toward her[12] on 22 May when there was an opportunity to discuss [X]’s welfare.
[12] Paragraph 33 of the mother’s affidavit
[X] lives for the greater part of the time with the mother and spends time with her father each alternate week from Thursday afternoon until Monday morning and for one half of the school holidays and occasional special occasions. The mother therefore has the primary responsibility for [X]’s health and wellbeing and post operative care. The mother was faced with a father whom she perceives to be arrogant and uncommunicative and unable or unwilling to understand her concerns about [X]’s health. It is not surprising that the mother adopted the course that she did on this occasion and in my view, behaved entirely appropriately.
The mother has not attempted to preclude [X] from spending time with her father and in her affidavit[13] indicated that she was quite prepared to allow the father to spend another weekend with [X] in lieu of the missed weekend.
[13] Paragraph 33 of the mother’s affidavit
The mother was faced with caring for a little girl who after the operation was sad and sorry and had not understood why she was having an eye operation and was not able to open her eyes for at least twenty four hours. The mother was assisted by her mother in caring for [X].
The mother acted appropriately in my view in enabling [X] to resume Pre School as soon as possible, but under strict instructions to the Pre School teachers. I find on the evidence that the mother’s decision to protect [X]’s health for this short period resulted in [X] not spending time with her father for any longer than was necessary to protect her health. The mother’s action was justified.
Conclusion
The outcome of these proceedings does not solve the parent’s inability to communicate and both must share the responsibility for this failure. The consequence is that their children are caught in a continuing battle between them.
It is critical for these two young children that their parent’s both address their present dysfunctional behaviour and put into place effective communication. A failure to do so will result only in continuing disputes, lack of trust, their children being caught in the middle well aware of the conflict and a real risk that the children will suffer.
I will consider the issue of sanctions on the next occasion.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Coakes FM
Associate: J. Manners
Date: 2 December 2009
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