Rooney and Rooney
[2016] FCCA 2511
•14 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROONEY & ROONEY | [2016] FCCA 2511 |
| Catchwords: FAMILY LAW – Contravention Application – where contravention penalty hearing – whether parenting orders should be varied. |
| Legislation: Family Law Act 1975, ss.70NEA, 70NEB, 70NEC |
| Applicant: | MR ROONEY |
| Respondent: | MS ROONEY |
| File Number: | WOC 196 of 2013 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 22 August 2016 |
| Date of Last Submission: | 22 August 2016 |
| Delivered at: | Wollongong |
| Delivered on: | 14 September 2016 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Ms Beck |
| Solicitors for the Respondent: | Hansons Lawyers |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
Pursuant to section 70NFE of the Family Law Act 1975 (Cth) the Respondent Mother is to enter into a bond by no later than 5.00pm on 15 September 2016 for a period of twelve months from the date of this Order, without surety or security, and on the condition that she comply with all parenting Orders and otherwise be of good behaviour.
The Father be compensated for the 22 nights that the children did not spend with him as required by Order 4.2 (b)(i)(1) and 4.2 (b)(i)(2) of Orders made on 31 October 2013 when the Mother did not make the children X born (omitted) 2006 and Y born (omitted) 2009 (‘the children’) available for the Father to collect on 26 December 2014 as follows:
(a)Following the children spending time with the Father in accordance with Order 4.1(b)(i) of Orders made on 31 October 2013, from 5.00pm Sunday to the commencement of school the following Monday (or Tuesday if it is a long weekend), with such time to be limited to 22 alternate weekends only.
The Respondent Mother is to enrol in and complete a Parenting Orders Program (or equivalent, the purpose of which is to educate a parent about the necessity and benefits of compliance with Parenting Orders) within six (6) months of the date of this Order.
The matter be stood over to the adjourned date of 7 November 2016 at 9.30am.
IT IS NOTED that publication of this judgment under the pseudonym Rooney & Rooney is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 196 of 2013
| MR ROONEY |
Applicant
And
| MS ROONEY |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This case is about two children: X, born (omitted) 2006, who is now 10 years old, and Y, born (omitted) 2009, who is nearly 7 years old. Regrettably for X and Y, their mother and Father are locked in a long-running, intense and intractable dispute about them. These reasons for judgment explain the orders in what is merely a chapter in the saga of conflict between the parents.
Parenting orders were made on 31 October 2013. The Father filed a Contravention Application on 10 April 2015. When the matter came before the Court on 13 May 2015, the parents, with the assistance of their lawyers, entered into consent orders. In effect, the parents having agreed that the Mother had, without reasonable excuse, contravened certain orders, the Court was asked to adjudicate in relation to penalty.
The matter was listed on 27 August 2015 for the penalty hearing. The matter did not proceed because the Court was concerned it could not determine penalty if there were unresolved issues about the facts. Even a cursory examination of the affidavits filed on behalf of both parents made it apparent that there were contested facts that were clearly relevant to the imposition of the penalty. The matter was adjourned to 22 August 2016, the Court having allocated sufficient time on that day to hear evidence going to the question of penalty.
When the matter, in fact, came before the Court on 22 August 2016, the Applicant Father appeared in person, the Respondent Mother through her counsel Ms Beck and the children through Ms T, the Independent Children’s Lawyer. The Court was advised by the parents that they wished to proceed on the basis of submissions and not lead evidence. The Court expressed concern about this. Indeed, the concerns expressed on 22 August 2016 were no different to the concerns expressed on 27 August 2015.
The Court was particularly concerned to ensure that the Applicant Father knew and understood that he might be disadvantaged by proceeding on the papers. Of course, the risk was equally apparent to the Respondent Mother, but she was represented by both solicitor and Counsel. The Father indicated he wished to proceed notwithstanding. An obvious concern for him was the cost of representation. His evidence had been prepared with the assistance of a very experienced local family lawyer. In particular, his solicitor’s submissions as to penalty appeared to be comprehensive. The Court reluctantly agreed to proceed on that basis. It was not without reservation.
However, the context of the past and indeed continuing parenting proceedings needs to be understood. These parents have been litigating about their children since 2013. Quite frankly, there is no end in sight for these children. In those circumstances to further adjourn the contravention proceedings was considered by the Court not to be in their best interests. The written submissions filed on behalf of the Father regarding contravention penalty sets out the documents relied on by him and minute of order that he seeks, submissions about the law to be applied and then submissions as to penalty, including costs. This document will be incorporated by reference into these my oral reasons.
The case outline of the Mother, dated 20 August 2015, as prepared by her solicitor, sets out the orders sought by the Mother, the evidence relied on by her, a brief but comprehensive chronology, a summary of argument and then submissions as to any parenting orders that should be made consequential to any penalty imposed on her. This is incorporated into the first schedule of these Reasons. At the hearing, Ms Beck, the Mother’s counsel, advised the Court that the Mother was not reading her affidavit filed 11 December 2014 or 19 August 2015, or her financial statement sworn 18 August 2015, but was relying on a financial statement sworn 18 August 2016.
At the hearing, the Applicant Father made oral submissions, as did the Mother’s Counsel, and then Ms T made brief submissions. It’s common ground that, as a result of the Mother contravening the orders made 31 October 2013, the Father was denied 22 nights of time with the children over the school holidays. Pursuant to the orders, the children were entitled to spend time with him from 26 December 2014 for, in effect, three weeks. This is an agreed fact. It is further agreed that the Mother had no reasonable excuse for so doing.
The Mother’s summary of arguments relating to penalty is set out in her written submissions. Some of the matters that she contends are clearly not in dispute, though of questionable relevance in the context of penalty. Thus, for example, the fact that the Mother withdrew her contravention application does not, in this Court’s opinion, go to the question of penalty to be imposed in relation to the Father’s contravention application.
The submissions contain assertions some of which are plainly inconsistent with the Mother’s agreement that she contravened the orders without reasonable excuse. Once she made that concession, the evidence of X’s resistance to spending time with her father, at least according to the Mother, is irrelevant. So too are the Mother’s allegations about the Father resisting engagement with therapeutic intervention.
To the extent that the submissions suggest that the family dynamics in this case are complex, there is simply no doubt about this. The issue is, from the Court’s perspective, whether these acknowledged issues of complexity have been raised as matters of reasonable excuse rather than, somehow, as mitigating factors in relation to penalty. In her oral submissions, Ms Beck emphasised the complexity of family dynamics in this case, describing it as a family in significant crisis. In relation to the issue of the children spending time with their father, she emphasised that, at the final hearing of this matter, the Mother would be seeking a variation of the existing orders. She is complying with the Orders at the moment, Ms Beck submits, but under duress.
The Court is of the impression that the Mother’s case was somewhat confused in its presentation. She was clearly pressing for a variation of the existing orders to reflect the problematic family dynamics. However, the Court’s concern is that submissions in support of that contention were also used in the context of determining penalty in circumstances where she had agreed that the contravention was without reasonable excuse. The Father’s case about penalty was much clearer. The contravention having been established by consent without reasonable excuse, the only issue for the Court was penalty. He sought compensatory time, a variation of the existing orders and costs.
The first major issue in this case is whether the Mother’s contravention without reasonable excuse should be treated as less serious or, in fact, one where the Mother has shown a serious disregard for his or her obligations under the Order. The Mother’s case in this regard was quite simple: this was a first contravention. Section 70NEB should apply. In effect, the Mother was arguing that the contravention should fall under subsection E of Division 13A, whereas the Father was contending that it should be treated under subsection F.
The Father’s Application was that even though this was a first contravention, the Mother behaved in a way that showed a serious disregard for her obligations under the Act, relying on section 70NEA subsection (4). The Court does not accept the Father’s contention in this regard. The Court would be exceedingly reluctant to find that the Mother’s contravention showed a serious disregard in circumstances where the Mother herself did not give evidence and was cross-examined. The Father’s written submissions deal specifically with this issue. For example, his submissions state:
It is still necessary to take into account her behaviour at the time of the contravention.
The submission quite properly recognises that before a finding of serious disregard can be made, the evidence must focus on the Mother’s behaviour at the time. In her affidavits, she gives a context about her decision. Only she can give this evidence. Whilst the Court does not lose sight of the agreed fact that the contravention was without reasonable excuse, that does not mean that a further agreed fact is that it manifested a serious disregard. That might have been elicited through cross-examination, but, in effect, the Father gave up his right to cross-examine, even when it was suggested to him that proceeding on the papers might not be to his advantage. Having regard to the way in which the parties decided to run the penalty hearing, it is not possible for the Court to find that the Mother showed serious disregard. Thus, subsection E applies to this case.
Section 70NEB sets out the Court’s powers to impose penalties. The Court’s powers include ordering a post-separation parenting program, compensating a person for time lost with a child, requiring a person to enter into a bond and, if they refuse, then to impose a fine, compensating a person for reasonably incurred expenses and making a costs order.
The Father seeks a lump sum costs order of $4,300 payable over four months. He contends that a close examination of the Mother’s financial circumstances indicate that she does, in fact, have capacity to pay this amount in the period stipulated. Putting aside the issue of whether the Mother should pay the Father’s costs, the lump sum sought is, having regard to the schedule of fees in the Rules of this Court, a modest amount. The Father seeks compensatory times totalling 22 nights. He does not suggest that this be by way of block periods, but rather by the addition of an extra night each fortnight. Indeed, he proposes that as a result of such an order, there would be one less changeover between the parents as they would be returning to school.
By way of penalty, the Mother proposes that she be directed to attend a post-separation parenting program and to enter into a bond of good behaviour for 12 months. She contends that she has no capacity to make any order for costs. Both parents contend in their own way for variations to the existing order.
The Court does not accept that the Mother has any capacity to meet an order for legal costs on the evidence before the Court. Half of her income is derived from Centrelink benefits or child support. Indeed, the effect of the order sought by the Father would be to offset the child support he pays.
The expenses declared in the Mother’s financial statement are by no means excessive or unreasonable. Of course, the Father contended that the Mother’s financial circumstances are not as they seem. However, he chose not to cross-examine and all the Court is left with is the Mother’s sworn financial statement. Therefore, an order for costs is not an appropriate penalty on the facts of this case.
The Court notes that by consent, the Mother agreed on 13 May 2015 to enrol and participate in a parenting orders program conducted by Relationships Australia.
The Mother herself proposes that she be ordered to enter into a bond of good behaviour for 12 months. The Court accepts that this is an appropriate penalty. Section 70NEC provides that the bond may be for a period of up to two years and be with or without surety and with or without security. The Court considers that one year is sufficient and that neither surety nor security is necessary, particularly in circumstances where this matter is ongoing and before the Court. The only appropriate condition is that she be of good behaviour and comply with orders of the Court.
The Mother needs to understand, of course, that if she breaches the condition of the bond and, for example, does not comply with orders of the Court, then she may be brought to account not just for any future contravention, but also the present one. Any further contravention might also be treated as being more serious. The consequences of the imposition of the bond on the Mother should not, therefore, be underestimated.
The Father seeks compensatory time. The Mother opposes this. The Father proposes one extra day each fortnight and is designed to minimise any disruption to the children’s lives. The substantive orders that the Mother seeks are, in effect, that the Father’s time be reduced.
Before making an order for compensatory time, the Court must be satisfied that such order is in the best interests of the children. The Independent Children’s Lawyer did not seem to rule out compensatory time. She suggested that the family was, perhaps, not in the degree of crisis that was portrayed in the Mother’s case. She pointed out, for example, that the children do spend time with their father. Her concern, however, was that in the context of a high conflict case, there was the risk that ordering more time, even on a limited compensatory basis, could make things worse. She thought that one option might be to trial a period of extra time, and then evaluate. Whilst this is an ideal situation, a re-evaluation may be difficult in practical terms. A Family Report is not expected before July 2017. The parents are, I believe, participating in a Legal Aid Family Dispute Resolution Conference in October.
Currently the children return to their mother at 5 pm each Sunday, after having spent the weekend with their father. He proposes that by way of compensatory time, and for a period of 22 nights, he have the children from 5 pm Sunday to the commencement of school on the following Monday or Tuesday, if it is a long weekend. One of the concerns the Mother herself raises is about parental conflict and the communication difficulties they have. She herself refers to the anxiety that X experiences, for example, leading up to changeovers. A transition from the Father’s home to school has the potential to alleviate that anxiety. There is otherwise much in dispute between the parents about what the children are experiencing and why. Again, their failure to cross-examine makes it harder for the Court to make a decision.
On balance, the Court believes that having regard to all of the evidence, as conflicting as so much of it is, that there is a benefit to the children in having compensatory time with their father, and particularly as he suggests that it be structured. Thus, an order for compensatory time will be made, as proposed by him. It will be limited to 22 alternate weekends only.
Both parents have proposed other changes to the existing parenting orders. Having regard, in particular, to how these proceedings were run, the Court does not believe that it is in a position to make any further parenting orders, but, in particular, the restraint proposed by the Father about the Mother attending the school. Whilst the Court believes that the Mother’s attendances at the school are probably unhelpful, the evidence does not justify it making an order in terms that the Father seeks.
The penalty that the Court imposes will, accordingly, be the compensatory time proposed by the Father; that no costs are payable by the Mother; that she attend a post-separation parenting program; and that she, no later than 5 pm tomorrow, enter into a bond to be of good behaviour and comply with the orders without surety or security for a period of 12 months.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 13 October 2016
Schedule 1
The Mother’s Case Outline Document
| IN THE FEDERAL CIRCUIT COURT OF AUSTRALIA REGISTRY: WOLLONGONG | File number: WOC196/2013 |
MS ROONEY
Applicant Mother
MR ROONEY
Respondent Father
CASE OUTLINE OF THE MOTHER
| A. PROCEEDINGS |
Parenting Proceedings.
| B. CHILDREN |
X – born (omitted) 2006 presently aged nine (9) years
Y – born (omitted) 2009 presently aged five (5) years
| C. DISCREET ISSUES FOR DETERMINATION |
The appropriate penalty for the Court to impose for the Mother’s contravention of the Orders during the Christmas School Holiday period 2014.
Whether the Orders made 13 May 2015 ought to include a restraint as sought by the father which is specifically pleaded by him to be;
“The parents shall be restrained from enrolling the children into any extra curricular activity or event that falls during the other parents’ time unless the other parent gives written consent”
Determination of the Mother’s application in a case filed 17 July 2015.
| D. ORDERS SOUGHT BY THE MOTHER |
That the contravention be dealt with under section 70NEB specifically by making an order directing the Mother to attend a post-separation parenting program and/or enter into a bond of good behaviour for 12 months.
That no order be made as to costs.
That the restraint sought by the father not be made by the Court and that this issue be specifically discussed at family therapy.
The parents must sign all necessary forms, documents, complete any necessary intake forms or sessions so to ensure that family therapy can proceed and progress with Ms B, or any other therapist which is nominated by the Court, within twenty four hours of a request being made by that therapist.
The parents must ensure that they comply with any requests, directions, advices and recommendations of the therapist from time to time including recommendations for personal therapy for the parents, parenting courses, or any other courses which may be recommended by the therapist from time to time.
The parents must ensure that they promptly attend any sessions with the therapist and ensure that the children attend all scheduled appointments unless the child/children have a medical illness.
If the Court is of the view that the child X ought to attend upon a clinical psychologist it is the Mother’s proposal that this ought to be Ms B and not Catholic Care as proposed by the father.
That the Father pay the Mother’s costs for the Application.
| E. LIST OF DOCUMENTS TO BE READ |
Affidavit of Ms Rooney filed 11 December 2014;
Affidavit of Ms Rooney filed 24 February 2015;
Affidavit of Ms Rooney filed 17 July 2015;
Affidavit of Ms Rooney filed 13 August 2015;
Affidavit of Ms Rooney filed 19 August 2015.
Financial Statement sworn 18 August 2015;
Financial documents of the Mother evidencing her present financial circumstances and expenses;
Family Report prepared by Dr A;
| F. BRIEF CHRONOLOGY |
| DATE | EVENT | EVIDENCE |
| 31 October 2013 | Final consent orders made. The Orders state that the parents must ensure that the children attend all extracurricular activities and sporting events whilst the child is with them and a notation specifically regarding how the Father is to deliver the child to the Mother for each dancing concert so that she can be ready and prepared. | Aff of AJR 05.12.2014 para 4 |
| January 2014 | Mother books a cruise for the children later in the year. The Father signs the passport forms but fails to pay for half the cost of the passports despite Orders providing that the cost is to be shared. Mother funds the total cost of the passports at that time and the Father does not reimburse the Mother. Father is in arrears of child support for two months. | Aff of AJR 5.12.2014 para 25 Aff of AJR 25.2.2015 para 19 |
| April 2014 onwards | Father’s partner Ms M commences collecting the children each alternate Thursday as the Father is working and is unable to do so. X expresses to the Mother that she is unhappy about this and at times refuses to go with Ms M after school. | Aff of AJR 23.2.2015 para 17 |
| 24 Mar 2014 | Mother advises Father that X will be dancing on the weekend of 3 and 4 May. Mother funds the cost of the dancing, costumes, make up and accessories without any assistance from the Father. | Aff of AJR 13.08.2015 para 21a |
| 28 April 2014 | Father agrees to take X on that weekend to the performance on the weekend of 3 and 4 May. | Aff of AJR 13.08.2015 para 21a |
| 2 May 2014 | Father emails the mother stating that the mother needed to sign an ‘agreement’ he drafted otherwise he would not let the child perform. Agreement included provision that Mother was not to assist with hair or makeup and to leave when asked by Father. | Aff of AJR 05.12.2014 para 6 |
| 3 May 2014 | Father arrives at the dancing concert and leaves X in the car and tells the Mother that unless she signs the “agreement” he has prepared X will not be dancing. Mother refuses to sign the agreement but reluctantly agrees to stay away from X during hair and makeup so that the Father would allow her to perform. | Aff of AJR 13.08.2015 para 21c-d |
| 14 May 2014 | Mother emails Father about next set of dancing performance dates being 13, 14, 15 June and 27-6 July. Mother solely funds the cost of the admission fee for the performance, costume, make-up and accessories. | Aff of AJR 13.08.2015 para 21k |
| 14 May 2014 | Father e-mails the mother saying that he will not abide by the notations in the Orders or the recommendations of Dr A in relation to dancing because the mother has not “behaved in an appropriate way”. | Aff of AJR 13.08.2015 para 21k |
| 30 May 2014 | Mother e-mails the father advising the father that the next solo performance for X would be between 11 and 20 July. Mother solely funds the cost of the admission fee, costume, make-up and accessories. | Aff of AJR 13.08.2015 para 21p |
| 9 June 2014 | Mother e-mails Father request that they swap weekends so that X could attend her first solo Eisteddfod on that weekend. Father refuses and tells the mother that she could not be involved unless she agreed to behave appropriately. | Aff of AJR 13.08.2015 para 21l |
| 14 June 2014 | Day of X’s first solo eisteddfod. Father fails to take the child despite being aware of the date, time and location of the event and his obligation to do so as outlined in the Orders. The father does not advise the Mother in advance that X is not coming and the Mother waits at the venue for one hour at the venue. After the Mother sends an email to the Father he responds advising that X is at home watching a movie. The following day the child returns to the Mother and burst into tears reporting that she was crying for two hours. The Mother reports that X says to her “I wasn’t allowed to dance because Dad said you didnt behave properly”. X tells her Mother that she “hated” her father and that she had to watch the Fathers step son perform at a singing eisteddfod instead of attending her own. | Aff of AJR 13.08.2015 para 21m |
| 6 July 2014 | Mother emails Father confirming X’s next eisteddfod is on 12 July 2014 and that the Mother can meet them at (omitted) High School where the performance is to be held at 7.45am to do X’s hair and make-up in accordance with the Orders. Mother funds the cost of the admission fee, costumes, make-up and accessories. | Aff of AJR 13.8.2015 Para 21(o) |
| 12 July 2014 | Day of X’s eisteddfod and Father fails to deliver the child to dance. | Aff of AJR 13.8.2015 para 21(o) |
| 15 July 2014 | Mother e-mails father advising him that X had been approached again to the charity event on 16 August 2014. Father advised that he wanted the dancing teacher to contact him about this and the Mother provided all the information regarding the date, time and estimation of the duration of the performance and location of the event | Aff of AJR 13.08.2015 para 21r |
| 16 July 2014 | Father sends email to Mother nominating dates for the 2014/2015 school holiday period. Mother replies advising she has made plans to travel with the children over that period. The parties argue via email over this and reach no resolution. | Aff of BPR 7.4.2015 PARA 9 |
| 20 July 2014 | Mother instructs her solicitors to request that on the day of X's Holy Communion she be offered some time with X to have photographs with her. The father replied offering to deliver X to the Mother at 7.30am and that he could collect her at 9.00am to ensure that she was delivered to the venue on time and that she would remain in his care after the service until 5pm. The Father expressly stated that Mother was NOT to approach the Father or his vehicle and that the Mother had to ensure that her family members did NOT approach the father or his vehicle. He proposed that the Mother have fifteen minutes with X after the service and thereafter she was to be returned to the Father. | Aff of AJR 5.12.2014 para 13-14 |
| 3 August 2014 | X's Holy Communion X is delivered to the Mother by the Father at 7.40am, by 8.45am the Mother had finished and was going to take X to the Church so the Mother could take some photographs there. On arrival the Mother and X had some professional photographs taken. Father arrived, rushed over and grabbed X and dragged her away from the Mother. After the service X ran over to the Mother and her family. X grabbed the mother by the hand and the Father took her other hand. The Mother said to the Father “Sorry we are going to have our fifteen minutes” to which the Father’s partner calls out, in the presence of the children “that’s child abuse”. The Father hovered a metre away during this time and Y was being held by Ms M’s mother and was pulled back when he indicated a willingness to join the Mother. The Mother was prevented from having any photographs with Y on that occasion. Children returned to the Mother and the Father failed to return the child’s dress and medals. X wanted to wear her medal to school the following day and contacted the Father that evening for him to bring it to her and he declined. | Aff of AJR 5.12.2014 para16-17 |
| 16 August 2015 | Day of the charity dancing event and Father fails to deliver X to the event nor does he notify the Mother of his intentions not to bring X to dance. | Aff of AJR 13.08.2015 para 21r |
| Early Sep 2014 | Mother e-mails Father to advise of dance performance on weekend of 27 September 2014 for both children. Mother funds the cost of the admission, costumes, makeup and accessory expenses for both children. The father does not facilitate either child attending the dance performance. | Aff of AJR 13.08.2015 para 21k |
| 2014 | X commences (omitted) classes and the Father is advised as to the time. The Mother funds the cost of these additional classes. | Aff of AJR 13.08.2015 para 36 |
| 25 September 2014 | Mother attempts to contact the children pursuant to the Orders and the Father does not facilitate the call. The Father sends an email to the Mother advising that the children did not express any desire to call the Mother back so he does not facilitate any return call. | Aff of AJR 5.12.2014 para 9 |
| 22 November 2014 | Father previously agreed to bring the children to attend their dancing photo day but changed his mind and fails to bring them on the day. | Aff of AJR 5.12.2014 para 22 |
| 2 Dec 2014 | X calls her Father asking for him to bring her black school shoes as she needed them for a choir performance at school the following day. During the conversation the Mother overhears the Father say to the child “If you are going to demand I do things when I call, I wont call you anymore”. The Mother attempts to speak to the Father and hands the phone back to X who refuses to take it, the Mother places the phone on the bench and the Father disconnects the call. The Father calls back, X answers and the Father hangs up. The Father sends an email to the Mother at 9pm alleging that she has contravened the Orders by interfering with the telephone call. | Aff of AJR 23.2.2015 para 9 |
| December 2014 | X confides in the Mother expressing anxiety about being with the father for long periods of time over the Christmas Holidays and that if she asks her father to return her to the mother he will not do so. She expresses anxiety over the length of time with the Father. | Aff of AJR 23.2.2015 para 10 |
| Late December 2014 | Father emails Mother nominating his block period of time with the children which occurs during the time the Mother had previously booked holidays. A dispute arises over this. | Aff of AJR 23.2.2015 para 12 |
| 22 Dec 2015 | Mother covers the total cost of Y's (omitted) system for his hearing aids $575.00 without any assistance from the Father. The Mother requests that the Father assist in sharing the cost. The Father sends an email to the Mother stating that he pays $2000 per month in child support. | Aff of AJR 25.2.2015 para19 |
| 23 December 2014 | X has a telephone conversation with her Father about the upcoming holidays. X tells the Mother after that call “I asked Dad if we could just see him over the next few weekends and he said that it wasn’t my choice. I am worried that we will go with him and he just wont bring me home if I ask him to. I don’t want to go Mum, I am worried”. The Mother sends an email to the Father asking for confirmation from him that if X wishes to be returned to the Mother that he was ok to do so. The Father ignores these comments and again nominates his block period of time being 8 January 2015 – 28 January 2015. | Aff of AJR 23.2.2015 para 14 |
| 30 Dec 2014 | X speaks to the Father on the telephone and becomes very upset. X reports to the Mother that the Father said to her the Mother would “go to jail” if X did not go with the father. Mother emails the Father about these comments and Father denies saying this. | Aff of AJR 23.2.2015 para 15 |
| 6 Jan 2015 | Y says to the Mother “I don’t want to go to Dad’s unless X goes too but I am too scared to tell Dad cuz he will yell at me” | Aff of AJR 23.2.2015 para 16 |
| 7 Jan 2015 | Mother sends an email to the Father regarding telephone conversation he had with X where she reported that the Mother would go to jail. | |
| January 2015 | Mother enrols children into their dancing and singing activities for 2015 and requests the Father contribute towards this cost by paying for the cost of one dancing lesson each week. The father declines stating that they should share the cost of the children attending a sporting event. The Mother solely covers the cost of the children’s dancing and singing activities for the year. | Aff of AJR 25.2.2015 apara 20 |
| 24 February 2015 | Mother files an initiating application seeking Orders for family therapy and counselling of X. The father files a response seeking her application be dismissed. | |
| February 2015 | Father is in arrears in child support and has not completed a tax return for two years. | Aff of AJR 25.2.2015 para 19 |
| 10 April 2015 | Father files contravention application | |
| 13 April 2015 | Parents attend CDC conference and it was recommended that the parents engage in family therapy. It was suggested that any therapist working with the family have experience in working with high conflict separated families and associated dynamics. | |
| 13 May 2015 | Parents agree to enrol in the Parenting Orders Program (POP) with Relationships Australia. Mother agrees to vary the orders regarding dancing so that another parent would assist X on the performance days with her hair and makeup. | Aff of AJR 13.08.2015 para 23 |
| 19 May 2015 | Mother e-mails Father reminding her X's dance performance scheduled for 24 May 2015. Father was made aware of time date and location of dance performance. | Aff of AJR 13.08.2015 para 25 |
| 24 May 2015 | Father takes X to her dancing concert and another parent assists with X’s hair and makeup. The Mother is present but is not permitted to help X. Ms M holds X back from coming over to the Mother after her event and holds Y so that he cannot leave her side. | Aff of AJR 13.08.2015 para 23-30 |
| 30 June 2015 | X speaks to the father on the phone and says words to the effect of “ I'm not coming next week for the school holidays ” | Aff of AJR 16.07.2015 para 9 |
| 1July 2015 | Mother asserts that X indicates to her that she will refuse to go with her father that coming weekend. The Mother contacts Relationships Australia and is advised that they cannot urgently accommodate the family and tell the Mother to force X to go. The Mother contacts clinical psychologist Ms B and informs the father on 2 July 2015 advising she has secured an appointment for X to see Ms B on 3 July 2015 at 9am. | Aff of AJR 15.07.2015 para 12 |
| 3 July 2015 | Father contacts Ms B and advises that he does not consent to her seeing the child just before the appointment. The Mother meets with Ms B in any event and obtains a report from her recommending urgent intervention for X and for the family. | Aff of AJR 15.07.2015 para 16 |
| 5 July 2015 | Children due to spend time with the Father. The Mother delivers the children to changeover and both children refuse to go with him resulting in them being physically removed by the father and locked in the car. Both parents film this incident. X and Y at various stages jump from the father’s vehicle crying hysterically. X does not spend time with the father but Y does. Again the Mother proposes urgent therapy for X and this is rejected by the Father. The Father proposes that the parents complete POP and continue through RA. | Aff of AJR 15.07.2015 para 18 |
| 15 July 2015 | Father proposes that X attend Catholic Care for counselling and books an appointment for X. The Mother contacts Catholic Care and enquires about their qualifications. She is advised that they only employ generalist counsellors and not registered or clinical psychologists. She is advised that X’s previous counsellor is on maternity leave and X was booked in with a different counsellor. Mother advises that she would prefer that this issue be determined by the Court and asks Catholic Care not to see X. Father does not propose an alternative counsellor for X. | Aff of AJR 15.07.2015 para 37 |
| 17 July 2015 | Mother files an application in a case seeking Orders for the appointment of a clinical psychologist to work with the family and with the children. She proposes that person be Ms B. | AIC 17.07.15 |
| 5 August 2015 | Mother contacts Relationships Australia and speaks with. Mother confirms with Ms K that her address hadn’t been updated by RA to her new address and she did not receive any correspondence from them to date. They corrected this issue and posted two letters previously sent to her. | Aff of AJR 18.08.2015 para 10 |
| 13 August 2015 | Mother obtains letter of recommendation from Ms B to confirm that she recommends a clinical psychologist be appointed to work with X and the family. | Aff of AJR 18.08.2015 para 16 |
| 13 August 2015 | Mother receives letters from RA in the mail and there were two letters not four as alleged by the Father. The letters refer to suggested courses which commence that night and that the Mother is on a waiting list. | Aff of AJR 18.08.2015 para 11 |
| 14 August 2015 | Mother again speaks to Catholic Care who confirm they are not the “right” organisation to help with the matter and that they would inform the father | Aff of AJR 18.08.2015 para 13-14 |
| Early September 2015 | Mr D at (omitted) Psychology is able to accommodate the family in early September 2015 for therapy. Mr A has also advised that he can accommodate the family within 10 days notice therapy | Aff of AJR 18.08.2015 para 24 |
| 27 Aug 2015 | Father’s contravention application for hearing Mother’s application in a case for hearing Hearing on the restraint sought by the Father in relation to the child attending dancing |
| G. SUMMARY OF ARGUMENT |
Penalty:
It is submitted by the Mother that the Court deal with this contravention under the penalties available to it pursuant to section 70NEB. In determining the appropriate penalty the Mother submits that the Court have regard to the following;
(a)That the Court has not previously made an Order in respect of any other contraventions;
(b)That the contravention occurred in circumstances where the Mother has provided evidence of at least six months where the child X has advised her mother that she does not wish to spend time with her father and the Mother has filed an application in February 2015 seeking orders for family therapy or intervention for the child seeking some remedy to an ongoing and outstanding issue;
(c)The parties did have competing contravention applications on foot at the same time and the Mother withdrew her application as a way to reduce conflict in this matter;
(d)The Mother has consented to engaging in the POP program and it is her application that the parents and the children engage with a clinical psychologist to address the specific reluctance of the children from spending time with their father;
(e)The Father has essentially “road blocked” the Mother’s attempts to obtain professional help for X or urgent therapeutic intervention for either children by refusing to consent to her seeing anyone or the family attending upon another organisation other than Relationships Australia prior to an incident occurring at changeover on 5 July 2015;
(f)The Mother does not have the means to pay a costs order and the imposition of a costs order would impact upon the children as this would lead to significant financial hardship for the Mother.
(g)The Mother is a single parent who is in receipt of child support, family tax benefit and earns $35,872.00 gross per annum from her part time employment. She has a significant mortgage over her home. She has significant credit card debt and presently owes her lawyers in excess of $7,000.00.
(h)The Father’s 2014 taxable income was $142,000.00 and in January 2015 he informed the mother via email that he was building a “new home”. The father declines to provide financial assistance to the Mother to fund the cost of any dancing activities he actually agrees X should attend and failed to share the cost of passports for the children or Y’s additional hearing aid device in early 2015.
The Mother has incurred her own legal costs filing a contravention application which she withdrew when the parties amended the Orders regarding X attending dancing and the interpretation of school holiday time. The mother did so hopeful that this would end further litigation and mitigate the parties legal costs.
(j)The Mother consented to the contravention at an early date and mitigated the father’s costs by doing so.
(k)The father’s contravention application is listed alongside other discreet issues to be determined by the Court and arguably the Father’s costs would be incurred in any event as he is seeking specific Orders from the Court regarding a restraint;
(l)A costs order or punitive order made against the Mother would not act as a deterrent in this matter as it is submitted by the Mother that the contravention occurred as a result of the children refusing time with their father.
(m)It is submitted by the Mother that she simply would not have the means to afford to pay any costs Order and enforcement by way of the sale of her car or her home would be the only manner in which to obtain funds from her. This is clearly not in the children’s best interests when they primarily reside with the Mother.
(n)The Mother has had to loan funds from her family to fund the cost of her legal representation which she is unsure she will ever be in a position to repay.
(o)It is the mother’s submission that specialist help is required to ensure that the issues which continue to arise in this matter are rectified.
Mother’s Application in a Case:
The Mother has filed an application seeking to have an appropriately qualified expert engage with the family and especially X urgently to assist in resolving and repairing the relationship between the children and the father. The Mother, in the alternative, that if the Court is not minded to make this Order that instead an Order is made for X to attend upon Ms B or any other suitably qualified psychologist.
The Mother’s evidence outlines the attempts she has made to secure urgent help for X as a result of her concerns about X’s refusals to spend extended time with the Father during school holiday periods which has been the case since 2014.
The Father withheld his consent for X to see a clinical psychologist and thereafter proposed that she attend upon Catholic Care. The Mother asserts that Catholic Care do not employ registered or clinical psychologists and that she is concerned about the child’s mental health.
The mother has discussed this with Ms B who has strongly recommended that considering the issues in this matter a clinical psychologist is highly recommended.
The Mother has been advised by Relationships Australia that they are unable to urgently accommodate the family. The Mother is concerned that if urgent therapy does not commence X may again refuse to spend time with her father for the upcoming school holiday period and that this may have an ongoing impact upon her mental health.
It is the Mother’s position that if the Father objects to Ms B being appointed that she proposes two alternative clinical psychologists in (omitted).
Restraint sought by the Father:
It is submitted by the Mother that the restraint sought by the Father is an attempt to limit the children attending any events during “his” time regardless of the wishes of the children. The Mother and the Father are unable to communicate on a basic level and their parenting relationship can only be described as dysfunctional. The proposed Order as outlined by the Father will, by the Mother’s submission, lead to ongoing litigation.
The chronology provided above outlines a clear history of the father failing to support X’s love of dancing. The Mother submits that it is this issue that impacts upon X’s relationship with her father.
It is notable that the Mother solely covers the costs of the children’s extracurricular activities. The Father has not indicated whether he will contribute towards the cost of any extracurricular activities in which he agrees the children should attend. He appears content to restraint the Mother from enrolling the children into activities that she will be solely bearing the cost.
The parents are unable to communicate and organise the delivery or return of Y’s (omitted) uniform, boots and (omitted) without there being some disagreement. Clearly the proposal regarding the restraint is untenable and the parties will be unable to agree on anything in the absence of therapeutic intervention and ongoing assistance with this.
It is the mother’s position that this issue ought to be discussed at family therapy where the parents will have assistance from a professional person to assist with the overall dysfunctional parenting relationship.
S60CC
Primary considerations
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
The parents are important people in the children's lives.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The children require protection from the conflict of the relationship between parents. The mother asserts that a lot of this conflict has stemmed from the children's extracurricular activities. The mother is concerned about the child X relationship with her father and refusal to spend time with the father and the detrimental effect it is having on her health and stress on her during dance performance weekends.
On 5 July 2015, the child X was very anxious leading up to the changeover and kept commenting to the father that she did not want to go to the father's regardless of what the mother had said. This anxiety escalated to the point where the child became more and more distressed than the father was becoming very agitated so he grabbed Y and dragged him away from the mother. Y became quite distressed, crying and calling out to the mother. The father put Y in the back seat and locked the vehicle and walked toward X and the mother. The child X was sobbing and clinging to the mother arm. The father grabbed X and pulled her over to the car. X was banging on the window and the father locked the car. X jumped out of the vehicle as the car was moving and ran over to the mother screaming and crying. The father was visibly and verbally aggressive towards the mother and children.
This incident reflected poorly upon both parents and also highlighted to the Mother the importance of seeking expert help for the family so that this situation did not occur again.
Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
Whilst it is the case that the child Y may not be at an age where his views would be considered to have sufficient weight before the court, the child X has expressed views which ought not be disregarded due to her age.
(b)the nature of the relationship of the child with: (i) each of the child's parents; and (ii) other persons (including any grandparent or other relative of the child);
Y enjoys a good loving relationship with both parents.
The mother is concerned that X and her relationship with the father is troubled.
The mother submits that the child X’s reluctance should be dealt with by way of appropriately by a clinical psychologist. It is her position that the Court might be of the view that X may require her own counsellor and the Mother submits that this ought to be Ms B or another suitably qualified clinical psychologist.
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long-term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
The parents have an acrimonious relationship and the mother asserts that this impacts upon their ability to co parent effectively. Whilst it is not disputed that the father participates in making decisions about major long term issues in relation to the children, as well spending time in communicating with the children, it is the mother's position that the difficult communication between the parties only serves to increase the animosity between them. Their parenting can only be described as parallel.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
Not applicable
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
Nil
(f)the capacity of: (i) each of the child's parents; and (ii) any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;
The mother has concerns regarding the father's capacity to care for the child X’s psychological well-being as outlined above.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child’s family;
As outlined above.
Date: 20 August 2015
| Ms Hayley Williams Solicitor for the Mother |
Key Legal Topics
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Family Law
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Remedies
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