ROBINSON & FARTHING

[2012] FamCA 504

FAMILY COURT OF AUSTRALIA

ROBINSON & FARTHING [2012] FamCA 504

FAMILY LAW – CONTRAVENTION - Allegations not proved.

FAMILY LAW - COSTS

Family Law Act 1975 (Cth)

APPLICANT: Ms Robinson

RESPONDENT: Mr Farthing

FILE NUMBER: MLC 8085 of 2010

DATE DELIVERED: 22 June 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 22 June 2012

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Stanley

SOLICITOR FOR THE RESPONDENT: Richard Calley Family Lawyers

Orders

1. That the wife have leave to withdraw the contravention application filed 31 May 2012.

2. That all contraventions alleged in the application filed 16 May 2012 are dismissed.

3. That the wife pay the husband’s costs fixed in the sum of $2500 within one month.

4. That for the period of three weeks from this date, the telephone communication orders made 18 November 2011 are varied so that on each of the successive Saturdays and Wednesdays hereafter for three weeks, the wife telephone the child D’s mobile number at 7.15pm (Australian time) and for that purpose, the husband make the child available and ensure that the telephone call occurs.

5. That all extant applications for parenting orders are otherwise adjourned to a date to be fixed to be heard by the Honourable Justice Dessau as soon as practicable.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Robinson & Farthing has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8085 of 2010

Ms Robinson

Applicant

And

Mr Farthing

Respondent

REASONS FOR JUDGMENT

1. This is an application brought by Ms Robinson, to whom I shall refer in these reasons as the wife, seeking that Mr Farthing, to whom I shall refer as the husband, be dealt with under the Family Law Act 1975 (Cth) (“the Act”) for having contravened an order that was made by the Court, by consent of the parties, on 18 November 2011.

2. I propose to refer to the parties as husband and wife, notwithstanding they have long parted that marriage relationship and I do so without any disrespect to them and purely for my own convenience.

3. Throughout today’s proceedings the applicant wife has represented herself and Mr Stanley, of counsel, has appeared on behalf of the respondent husband.

4. The law to be applied in respect of the contravention application lies in Division 13A of the Act. It provides that a person is taken to have contravened an order in relation to children only if they have intentionally failed to comply with the order or made no reasonable attempt to comply with the order.

5. On any view, in this case, the evidence is that the husband was aware of the order and of its terms.  There is no suggestion that he misunderstood the terminology.  The question is whether he intentionally failed to comply with the order or has made no reasonable attempt to comply with it.

6. The standard of proof, in a case such as this, is the balance of probabilities.  In simple language, what I have to decide as between the competing versions, is which is more probable than the other. 

7. The obligation is on the applicant to prove her case.

8. To the extent that it might be found that an order has been contravened by not being carried out, s 70NAE provides that a person may have a reasonable excuse for contravening the order and if so, then the Court can excuse that contravention.

9. A variety of examples of excuses are set out in s 70NAE and one of them relates to the question of the health and safety of the child.  That becomes relevant in these proceedings before me.

10. The arguments in this case are relatively straightforward and they arise out of the wording of the orders drawn by the parties’ lawyers.  Perhaps with a little hindsight, things might have been a little different.

11. The contraventions fit into three categories.  The first relates to an allegation that the husband refused to allow D (“the child”), to go with her mother at 4.30 pm on 6 April, 2012.

12. The second is a batch of allegations arising out of the use of the telephone.  Half or so of those allegations relate to the wife endeavouring to contact the child by a mobile telephone and being unsuccessful and the other half, or thereabouts, relates to the child contacting her mother by phone and being, according to the wife, thwarted.

13. The third category of cases relates to a curious order that requires facilitation of the attendances of the child at Sport T training.  As I understand the evidence, the child has an aptitude for that sport.

14. The order itself, therefore, has to be examined.  I do not propose to go behind the orders.  I specifically look only at the wording. 

15. In relation to the telephone contact, in both categories to which I have referred, paragraph 9 of the orders reads:

    That [the child] be at liberty to telephone her parents at all reasonable times and for this purpose each of the parties shall provide [the child] with a functioning mobile telephone at their premises to be kept for [the child’s] use for telephone communication with the other parent and each party be entitled to telephone [the child] for a reasonable period each Saturday between 9.30 am and 11.30 am and Monday evening between 8.30 pm and 9 pm and each make [the child] available to receive such calls.

16. Innocuous as the wording of that order may appear it has been a recipe for disaster.

17. In relation to the question of Sport T, the order reads:

    The husband is to facilitate the attendance of [the child] at her [Sport T].

18. Although there was some argument about the fact that facilitation means encouraging and ensuring the child exercises that sport, the wording of the order seems to me to be fairly simple.  It requires the husband to do everything necessary to ensure she attends.

19. There is no evidence that she has not attended.  What happens when she gets to Sport T is a totally different and unrelated issue.

20. On the basis of the evidence which is, at best, vague, I find there is no basis for the allegation relating to the third category relating to Sport T.

21. In relation to the order concerning handover of the child between parents, it was common ground that 2 April 2012, was a day for the child to go with her mother at 4.30 pm.

22. The evidence in this case is, again, less than satisfactory.  The wife’s version is that she attended and was refused access to the child and it required the attendance of the police and the child was not handed over until 5.30 pm.

23. Her evidence was that had the police not attended, she would not have had the opportunity to see the child that particular day or the ensuring weekend.

24. Her evidence was that when she attended she went to the security door.  She explained that in her view that was outside the boundary of the husband’s property and was in fact on communal property.  The wife said that the husband started screaming at her to exit his property.  Eventually, she knocked loudly on the door, a window broke and she did not get the child until the police arrived.

25. The husband’s version is different.  He said that when the knock occurred, he went to open the door and he saw the wife there and told her to get off the property and the wife remarked that there was no intervention order.  Things descended into chaos from there because the wife who had refused to wait away from the door, became more aggressive with her voice level rising and she started screaming.

26. The versions are not significantly different.  What is different is that the wife could not say what happened to the child from that moment onwards.  The child was actually in the presence of the husband when this occurred and, according to the husband was traumatised and distressed. 

27. His evidence which could not be disputed by the wife was that the child returned to the flat, went inside, and curled up in a foetal position on the floor.  It was only when the police arrived, at the request of the husband, a discussion took place and the police assisted in the transition.

28. Having regard to the fact that there was about an hour missing from the wife’s time, under the order, there has been a technical failure to comply with the strict letter of the order.

29. However, as I earlier pointed out, the Act provides that if a person has a reasonable excuse then that contravention may be excused. I cannot think of a better excuse than having to deal with a nine year old child who is distressed, traumatised, backing away, and going into a flat, lying on a floor in a foetal position. The husband was not challenged about what efforts he made to encourage the child to go to her mother.

30. The behaviour of the wife on that particular occasion was a little perplexing.  She obviously did not know that the child was going through all of that but equally, to have to call the police meant that these parents were happy to expose their child to what I would describe as a war in which two police officers, who have nothing to do with this domestic dispute, have to come in and act as some form of mediator.  It really showed poor parenting.

31. On any view, I am satisfied that the husband had a reasonable excuse on that day and on that basis that allegation must be dismissed.

32. That leaves me with the counts relating to the question of the telephone communication.  In respect of each of those allegations, the husband, through his counsel, denied a breach had occurred at all.  I have already set out what the order provides.

33. The first part of those orders, relating to the allegations, concerns the child being at liberty to contact her mother.  The evidence was that the calls did not come.  The wife asserts for days she did not hear from the child.

34. The husband’s evidence was that he reminded the child and she either shrugged it off or said that she would do something.  The husband left the whole issue to the child to sort out.

35. It seems to me that, having regard to the wording of the order, the onus is on the wife to establish that the husband did something to stop the child calling her mobile telephone.

36. There is evidence, from the wife, that the child said, both to her and to her partner, that the husband was preventing her from making the calls.  Having regard to the fact the husband’s evidence is the antithesis of that, it is hard for me to know exactly what occurred in each household.  The child is nine years of age and it seems probable that she behaves in both households exactly the way both parties describe.  I have no objective evidence otherwise.

37. It sounds to me very much like the child is playing one parent off against another, particularly if the child is being cross-examined about particular parental decisions.

38. The husband’s evidence was said in a calm way.  He was able to explain to me what happened in the household.  I find it logical that his version of the child being able to make the calls, if she wanted to, was the correct version.  The wife has therefore not proved those allegations.

39. In respect of the second part of the telephone calls issue, the evidence of the wife was that she made the calls at the specific times, or thereabouts as set out in the orders, and the phone either was not turned on or it went to voicemail but in any event, she did not get to speak to the child.

40. The husband’s version was that he left those issues to the child, having brought to her attention the fact that the order provided that her mother was going to telephone and he left it at that.

41. Whilst I have some concerns about that approach because the onus is on a parent who is in possession of the child to ensure that the child is in a position to take the call, there is not enough evidence here for me to say that the husband has failed to comply with his obligations or acted so as to find that he thwarted that contact in some particular way.

42. As I earlier said, the onus in proving these allegations lies with the wife.  I have to deal with the evidence as I find it.

43. I could not be satisfied, on the balance of probabilities, that the husband has breached the orders in respect of the telephone.  Under those circumstances, the application must be dismissed.

44. Subsequent to the proceedings being filed, a number of other issues have arisen.  The first of those is that the wife is about to travel overseas.  There are a number of problems associated with the existing telephone contact, as I have described, and it would seem that over the next three weeks there are going to be serious problems, not only because of the time difference but also the fact that the wife may be out of telephone range.

45. The existing orders have too much flexibility for any sort of order of that nature to work.  The wife’s position was that she wanted contact by telephone at 7.15 pm, Australian time, on the child’s mobile on Saturday, Monday and Wednesday.

46. Whilst I very much appreciate that the wife may very well want to speak to the child, over the next three weeks it might be better if we slow that process down.  It cannot do any harm for there to only be two calls and I propose to make an order that the contacts be at 7.15 pm Australian time on Saturday and Wednesday. 

47. I propose to make a specific order that the husband facilitate the child being available with the child’s mobile turned on at 7.15 pm on each of those two days over the ensuing three weeks.

48. I do not propose to set a specific period of time as I have pointed out, in discussion with the parties during the case because at nine years of age, it is hard to keep up the child’s concentration.  It is a matter for the adult to try and ensure that the child continues the discussion.  There is not enough evidence for me to be critical of the husband about cutting off of the child.  On that basis I propose to vary the existing orders for the next three weeks.

49. The other issue that has also arisen is that it appears that the child was injured in a fall in the Sport T competition or training and there is a very significant dispute between the parties as to how injured she was.

50. I do not understand what exactly is the future prognosis of this little girl and the parties could not even agree on who was to pay for what may be potentially a significant medical bill for treatment that the husband has now agreed the child will undertake.

51. The issue of who pays for these expenses should be left to another date.  No doubt there will be health insurance issues, not to mention the fact that the existing financial arrangement between the parties lies in a child support agreement which is similarly vague.

52. The best I can do in the circumstances is make the orders that the husband attend upon the paediatric surgeon on 3 July and that, for the purposes of that appointment, he ensure that the relevant X-rays are taken.  I do not propose to make an order as to who pays those expenses but that can be determined by a Court on another occasion.

53. The other issue that then arises is that the provisions of Division 13A require that the Court make sure that the orders that were ultimately what caused the parties to be here today, are in some way or other workable. There are lots of disputes in this case and they do not reflect well on the parents. It seems to me that this is a case where Dessau J would have heard a number of matters, including the wife’s application of a substantive nature.

54. I do not have the time nor the ability today to change the substance of the order.  The sensible solution is that having made the order for the next three weeks, the proper course of action is for me to direct that the matter be returned to Dessau J to be listed on a date to be fixed and that the parties make quite clear to her Honour just exactly what their respective positions will be.  I propose to make those orders

RECORDED   :   NOT TRANSCRIBED

1. Section 117 of the Act provides that each party shall bear their own costs unless there are circumstances to justify a departure from that principle and if the Court is contemplating departing from the principle it must take into account the matters set out in s 117(2A) of the Act. The first question, therefore, is whether there are circumstances that justify departure from that principle?

2. In this case, it is a contravention application.  The application was fraught with difficulty from the start.  It is quite clear that the wife’s application was really directed to try to sort out the mess of how the orders were drawn.  Whether it was sensible to proceed on a contravention basis, or otherwise, is a moot point.  It seems to me there are justifiable circumstances here.

3. The question is, how do the provisions of s 117(2A) apply. Both parties are in reasonable financial circumstances. The wife concedes she has a $1.2 million home. She is a professional person who says her income is in excess of $100,000 a year. In the property proceedings, the husband received about $950,000, according to the wife, and he has an income of about $90,000 as an employee.

4. This is not about punishment.  It is about compensating someone who has been brought to court to participate in a proceeding which, if rationally and objectively looked at, would never have got off the ground.  That is the basis to make an order for costs. 

5. The wife has been wholly unsuccessful and there are no other relevant circumstances in this case, such as Legal Aid.

6. I propose to exercise my discretion and make a total order of $2500.

RECORDED   :   NOT TRANSCRIBED

1. I will stay the order by one month.

I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 June 2012.

Associate: 

Date:  4 July 2012