ROCHESTER & ABBOTT - [2009] FMCAfam 1069

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ROCHESTER & ABBOTT

[2009] FMCAfam 1069

FAMILY LAW – Contravention application – encouragement of compliance with court orders – defence of acting in interests of child’s health and safety.

Family Law Act 1975, ss.70NAC, 70NAE

Peter & Elspeth (Contravention) [2007] FamCA 96
O’Brien and O’Brien (1993) FLC ¶92-396
Stevenson v Hughes (1993) FLC ¶92-363

Applicant:

MS ROCHESTER

Respondent:

MR ABBOTT

File Number:

MLC 1156 of 2007

Judgment of:

McGuire FM

Hearing date:

9 September 2009

Date of Last Submission:

9 September 2009

Delivered at:

Melbourne

Delivered on:

14 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr Marchetti

Solicitors for the Applicant:

Wilkens Roche Pty Ltd

The Respondent:

In person

ORDERS

On the contravention application of the mother filed on 21 August 2009 and upon hearing Mr Marchetti of Counsel for the Applicant and the Respondent appearing in person, and upon:

(a)the Court being satisfied that the Respondent has committed a contravention of an Order under the Family Law Act 1975 affecting children (being a contravention of paragraphs 1 and 2 of the Orders made in the Federal Magistrates Court of Australia at Melbourne on 29 April 2009);
(b)the Respondent not having proved that he had a reasonable excuse for the contravention referred to in (a) above;
(c)no court having jurisdiction under the Family Law Act 1975 having previously made an order in respect of a contravention of the Primary Order; and
(d)the Court being satisfied that Subdivision E of Division 13A of Part VII of the Family Law Act 1975 applies to the contravention referred to in (a) above,

THE COURT ORDERS THAT:

Any order in relation to penalty be made after hearing addresses from counsel for the applicant and the respondent in person as to whether or not this matter should be considered a “serious” breach of the court orders.

IT IS NOTED that publication of this judgment under the pseudonym Rochester & Abbott is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 1156 of 2007

MS ROCHESTER

Applicant

And

MR ABBOTT

Respondent

REASONS FOR JUDGMENT

This is a contravention application filed by the mother, Ms Rochester, on 21 August 2009. She supports her application with an affidavit filed the same day. The application alleges 14 separate counts of contravention by the respondent, Mr Abbott, of two separate interim orders made 29 April 2009 and 30 April 2009. Those orders are in respect of two children, namely [X] born [in] 1997 and [Y] born [in] 2002.
The orders of 29 April 2009 provide inter alia that [X] and [Y] live with the father fortnightly between Friday at the completion

of school and Tuesday at the commencement of school and otherwise live with the mother.
The orders of 30 April 2009 provide inter alia that the parties and their servants and agents be restrained from discussing the proceedings and any documents filed in relation to the proceedings with or in the presence or hearing of the children and from permitting any other person to do so.
The particulars of each allegation are set out in the application. Counts 7 and 8 allege contravention of order 5 of the orders of 30 April 2009 in that the respondent is alleged to have provided court documents

to the child [X] and discussed the details of the interim hearing with him. The remaining 12 counts allege contravention of orders 1 and

2 of the orders of 29 April 2009 in that the respondent father is alleged to have either discouraged the child [X] from remaining with the applicant, refused to return [X] to the applicant, or collected [X] from the applicant at times other than set out in the orders. In summary, those 12 counts are covered by an overall allegation that the child [X] has been with the father from 4 August 2009 to the date of the hearing.
The father admits the particulars of the offences in relation to retaining [X]. He does not admit the particulars of the offences in relation

to the orders of 30 April 2009 in discussing with and providing [X] with materials relevant to the court proceedings.
In relation to the 12 counts of retaining [X] the father raises the defence of reasonable excuse. In essence that defence is that he could not convince [X] to return to his mother. Alternatively, the father argues that [X] was habitually running away from his mother and that the father could not have his son on the streets and was therefore acting in the child’s best interests in retaining him.
It is relevant to note some of the historical background to this application.
The parties separated as long ago as February 2005. [X] and [Y] have lived with the mother from that time. For the two years or so after separation it seems that the boys spent some significant time with the father but lived primarily with the mother. In 2007 and 2008 the father lived and worked in Albury and spent irregular time with

the children. In late 2008, the father returned to Melbourne and initiated negotiations with the mother seeking further time with the children. In late March 2009 the father unilaterally retained the children resulting in a defended hearing and my orders of 29 April 2009. On the following day the matter came back before the court

in respect of an application by the mother for a recovery order.
The father was represented at the time of the interim hearings in April 2009. He represents himself in these proceedings. It came to light, however, during his evidence in court in these proceedings that he had consulted Victoria Legal Aid and strangely has apparently a grant

of aid to bring an interim application to change the existing interim orders. For reasons that escape me, he remained unrepresented during these proceedings and despite both the nature and ramifications

of contravention proceedings and the fact that I do, in any event, have power under the legislation to vary parenting orders whether or not

I find the contraventions to be proven.
Of further significance is that the substantive parenting issues are listed for hearing as soon as the 14 October 2009.

The law

These are proceedings under Division 13A of the Family Law Act 1975 (“the Act”). Section 70NAC of the Act states:
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…
As I have said, the father raises a defence. That defence is available
to him under s.70NAE(4) of the Act with reference to alleged contravention of an order dealing with whom a child is to live.
That section states at paragraph (4):
A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with a person in whose favour the order was made if:
(a) the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
I should emphasise that the current proceedings relate to the older child [X] only. [Y] has apparently continued to reside with the parties pursuant to the existing interim orders.

The evidence

The mother in her application and affidavit sets out the particulars
of the allegations in counts 7 and 8. At paragraph 5 of her affidavit filed 21 August 2009 the mother says:
The child [X] made a comment to me on or about 5 May 2009 that he was happy he got to spend time with me and some time with the respondent but that it would all change in October (being the month scheduled for the final hearing) and he would then be with the respondent all the time.
At paragraph 13 of her affidavit the applicant mother says:
I approached the children. I asked the children what had happened. [X] told me the respondent said that “Dad isn’t happy about the judge’s decision and he isn’t going to see us for
a while”.
And at paragraph 16 of her affidavit the applicant mother says:
I later received an SMS message from the respondent with words to the effect of “Ball is in your court now. Play your next shot. The kids will know the truth soon enough.” I wasn’t sure what
he was referring to. I did not respond to his messages.
At paragraph 41 the mother states:
During the Sunday afternoon both children were irritable.
Both [X] and [Y] were argumentative. Both children talked of “it’s not fair – the judge was an idiot. You’ve had us for four years now its Dad’s turn”.
And at paragraph 52 of her affidavit the mother deposes:
From another part of the house I could hear the respondent say
to [X] words to the effect of “I know how miserable you are all the time and I know how much you hate being with her. I promise you that I will try to negotiate with mum so you can stay with me. Who cares what the stupid judge said”.
At paragraphs 155, 156 and 157 of her affidavit the mother says:
In the car [X] told me that I was being mean to the respondent and that he had read the court documents I submitted.
He said “I read what you wrote about what happened at soccor [sic] – Dad showed me”.
He then spoke about an incident that I wrote about in my affidavit.
The father had the opportunity to cross-examine the mother as to her allegations. He did not cross-examine at all in respect of the allegations of breach of the orders of 30 April 2009 being counts 8 and 9 of the contravention application. Consequently, I find the allegations to be proven. The father did not raise a reasonable excuse in respect
of these allegations. I find that there is no defence available to him.
The father admits the particulars of the remaining 12 counts.
Put together, he has simply retained the child [X] since 4 August 2009 being a period of some five weeks. As I have said, his defence
is that [X] wishes to live with him and that he cannot convince [X] to return to his mother.
It is significant to note that the orders of 29 April 2009 seemingly worked satisfactorily for a period of about six weeks. The father then chose unilaterally not to see the children at all for some six or seven weeks including a period during school holidays. The mother has always deposed that the children want to see their father. The father deposes that the children, and especially [X], vigorously want to live with him. The father’s motivation in not seeing the children for such
a long period was never fully or adequately explained to the court.
The attitude and demeanour of the father in court and in the witness box together with his lack of explanation leaves open the possibility,
as suggested by counsel for the mother, that this was nothing more than a tactical ploy on behalf of the father in order to work on the emotions of the children. If this is ultimately proven to be the case then arguably this would amount to psychological abuse.
The mother alleges manipulation of [X] by the father. It must be emphasised that [X] is not yet 12 years of age and if, as the father implies, he delegates the decision-making role to [X] as to his living arrangements then this is totally inappropriate.
The evidence suggests that the father has taken it upon himself
to attend at the mother’s home and the school at times outside of the court orders. Again, such behaviour, particularly with the alleged demeanour of the father at such times, is inappropriate and places undue stress on the children. I had the benefit of seeing and hearing the father from the witness box. He clearly has strong views in relation to his children. He however presents in much of his evidence
as stubborn and uncompromising. Again, he did not see fit to cross-examine the mother as to many of the allegations in her affidavit relevant to the matter at hand.
At paragraph 34 of her affidavit and with reference to Tuesday 14 July 2009 the mother says:
The respondent replied with words to the effect of “I don’t care about court orders, nor what the judge said and just want to know when I can see them”.
And at paragraph 48 the mother deposes:
The respondent replied with words to the effect of: “[Ms Rochester], the kids and I will organise when we will spend time together next based on what we would like and not what anyone else thinks we need to do. The kids would like to go on a holiday with me to the Sunshine coast during December this year. I’ve book [sic] accommodation from Friday 4^th to Saturday 12^th and arriving back on the 13^th. I don’t think it will upset their school and it’s easier to d [sic] outside of school holidays. I will need confirmation from you in writing so I can book their air tickets. [Mr Abbott].
At paragraph 55 of her affidavit the mother deposes:
The respondent rang my mobile phone later that day and left
a message with words to the effect of “I have convinced [X] to go to school and have told [X] you and I would arrange care for him regardless of what the judge said. This ongoing problem with the boys being unhappy and fighting amongst themselves needs to change – they need to be with me”.
In respect of the first count on the application being 4 August 2009 the mother says at paragraph 68:
When we arrived back to my house [X] left with the respondent. The respondent’s parting words were “[X] can do whatever he wants”.
The respondent father himself demonstrated his defiance of and attitude to court orders in the witness box. I have no doubt that his inclination is to act on what he considers to be in the best interests
of the children rather than in accordance with court orders. The mother in her affidavit alleges many incidences of such behaviour. Essentially, the father does not dispute the majority of those allegations.
It is true that [X] has exhibited defiant behaviour in the mother’s household. He has perhaps run away from the mother’s home. This is essence of the father’s defence. However, the consideration for the court is more centred on the father’s attitude and behaviour. The simple fact is that [X] is not to be author of his own destiny. Secondly, the father has obligations at law to be proactive in encouraging his and the children’s compliance with court orders – whether or not the father or the child thinks those orders to be correct.
The authorities make it clear that a parent is to do more than the “mechanical things” to ensure compliance with court orders.[1]
The parent must do more than pay lip service to the orders. The parent must not delegate the responsibility for compliance with the orders
[1] See Peter & Elspeth (Contravention) [2007] FamCA 96, O’Brien and O’Brien (1993) FLC ¶92-396 and Stevenson v Hughes (1993) FLC ¶92-363.
to the children.
The father gave a number of answers from the witness box in cross-examination demonstrating his lack of insight and awareness as to his responsibilities at law. Most enlightening was the following:
My son doesn’t get on with his mother. He doesn’t want to live with his mother. He wants changes and I support him.
The father admits that he has told the children that he is “going to see
a solicitor to change the orders”.
In respect of a recent count the father alleges that he has a letter
from the mother giving permission for the child to stay with him
on a particular occasion. The father relies on this letter as a defence. Interestingly, the letter was not tendered into evidence. The mother admits that there was such a letter. In my view, however, the simple provision of a letter does not constitute a defence. The events leading up to the child going to the father is of particular importance in this matter. In my view the mother has acted appropriately on a particular occasion in conceding that a child should stay with the father
on a particular occasion when the child had run away from her home. This does not, however, discharge the father’s obligation at law
to comply with the orders and to positively encourage the child’s compliance with the orders. It does not constitute either consent for
a change in court orders or permission for the father’s ongoing retention of [X]. In my view, therefore, such letter does not constitute a defence.
The evidence is clear in my view that the father has acted
in contravention of the court orders. He has not discharged his onus
of proof in respect of raising the defence available to him under s.70NAE(5) on the balance of probabilities. The father himself makes admissions and concessions inconsistent with that defence.
The evidence is clear that the father has certain views as to the orders. He has made those views known to the children. He has either directly and/or indirectly influenced the child [X] to act contrary to the court orders. He has empowered [X] with the decision-making role and then relies on this as a defence. To do so is to seriously misunderstand the role of a parent.
I find all of the remaining counts proven and that the respondent has not mounted a successful defence.
I will now hear from counsel and the father as to whether or not
I should consider this matter as a “serious” breach of the court orders with the attendant powers I have under statute as to penalty. I will also hear from counsel as to penalty.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of McGuire FM

Date: 13 October 2009