Sathra and Sathra

[2016] FamCA 171

FAMILY COURT OF AUSTRALIA

SATHRA & SATHRA [2016] FamCA 171

FAMILY LAW – CONTRAVENTION – Where the father asserts that the mother failed to forward him copies of documents relating to the children; failed to ensure that the children were referred to by a hyphenated surname and failed to advise him of a medical appointment – Where the mother was required to answer six charges – Where having heard the mother’s evidence, none of the six charges are proven – Where the father’s application for contravention is dismissed – Whether the primary orders should be varied pursuant to s 70NBA of the Act – Where it is found that it was in the younger child’s best interests to discharge two of the orders made 2 November 2012

Family Law Act 1975 (Cth)

APPLICANT: Mr Sathra

RESPONDENT: Ms Sathra

FILE NUMBER: SYF 5076 of 2003

DATE DELIVERED: 17 March 2016

PLACE DELIVERED: Canberra

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 4 March 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. The father’s Application for Contravention filed 24 March 2015 be dismissed.

2. The orders made 2 November 2012 be varied by discharging order 21 and order 32.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sathra & Sathra 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 CANBERRA

FILE NUMBER: SYF 5076 of 2003

Mr Sathra

Applicant

And

Ms Sathra

Respondent

REASONS FOR JUDGMENT

1. On 22 October 2015 I found that the father had established a prima facie case in relation to a number of breaches of orders. Those breaches are detailed at [5] through to [10] of my Reasons delivered on 22 October 2015. I will deal with each of the charges individually.

2. In response, the mother relied upon one of the two affidavits filed 1 February 2016 (the affidavit which has been folioed numbered in the court’s filing system as “Pleading 414”).

CHARGE 1

1. The father alleges that in breach of orders 32 and 21.2 of the orders made 2 November 2012, the mother failed to inform the father that M had broken her foot in a dance class. Order 32 required that the mother regularly advise the father in respect of “all medical appointments” and that the advice be provided in sufficient time to enable the father to attend appointments. Order 21.2 required the mother, as soon as practicable, to email or send by ordinary post medical reports relating to the children.

2. The mother has filed an affidavit on 1 February 2016. She says that M did not have a broken foot but a broken metatarsal. Given that the metatarsal is a central bone in the foot, the mother ultimately did not dispute that M had a broken foot. At the time this happened, M was weeks from turning 17.

3. The mother has annexed to her affidavit (annexure A) a summary of a consultation which M had with a GP on 3 November 2014. It seems that that summary of consultation was obtained from the doctor and sent to the father in early 2015. This seems to be in response to an email from the father dated 8 December 2014 asking the mother to advise him of what medical appointments had happened. The mother’s immediate response was to remind the father that M was 17 next month.

4. There is some tension in the way the orders are constructed in relation to medical matters relating to the children.

5. The mother points to order 33 of the orders which is an order that the father is entitled to obtain information directly from doctors about the children up to their 15^th birthday. The mother says it was her understanding that order 32 and order 21.2 had the same condition attached to it. That is, her responsibility for giving information about medical matters only lasted up until the children were 15 years of age. That is not in fact how the orders are structured.

6. Section 70NAE(2) Family Law Act 1975 (Cth) (“the Act”) provides that a person is taken to have had a reasonable excuse for contravening an order if it was because, or substantially because, she did not at the time of the contravention, understand the obligations imposed by the order and the court is satisfied that that person ought to be excused in respect of the contravention.

7. The father submitted it was highly unlikely that the mother was under the impression that she did not have to provide medical information about the children to the father after they turned 15 years of age. The parties have been locked in litigation over a long period of time. They both represent themselves which means that the father got to directly cross examine the mother in these proceedings. From statements made by the mother and more importantly, watching the interaction between the mother and the father, I formed the view that the mother has been highly affected by having to interact with the father.

8. The mother draws attention to order 23 made 2 November 2012 which is in the following terms:

   Communication between the parents must pertain only to aspects relating to the care of the children and cannot be abusive or denigrating of the other parent and as far as possible the parents should not use foul language.

9. The mother has annexed to her affidavit communication from the father which refers to the mother in extraordinarily foul language, examples being “dumb cunt”; “sick bitch”; “wretched fuckwit” and “pig”. The father also makes threats and warnings to the mother in the foulest of language. The mother has not brought contravention applications against the father in relation to this communication but I take into account the nature of the communication from the father when considering the mother’s state of mind, as she attempted to interact with the father and whether or not I should be satisfied that the mother ought to be excused in respect of the contravention.

10. I accept the mother was under the impression that she did not have to provide medical information about the children to the father after they had turned 15 years of age. Whilst the mother should have more carefully read the orders, I am satisfied that she ought to be excused for the contravention.

CHARGE 2

1. The father charges the mother that she did not do as much as she should have done to ensure as far as possible that L was referred to by her correct surname by the B Dance School at the end of year concert in 2014. Order 28 requires both parents to ensure as far as possible that the children are referred to by both parents surnames at all times. It seemed to be common ground that the mother does some work at the School.

2. The mother however says that what happened in the program for the end of year 2014 concert is a matter of editing by the School over which she had no control. The mother put into evidence a letter from the principal of the School in which the principal accepted the entire responsibility for the error in the 2014 program and apologised for the error. The father submitted that the mother should have brought far stronger evidence in relation to the charge that he was making against her by way of the provision of School records and/or the written document that had given instruction to the printer who had produced the program. I accept the mother never checked programs as that was a management responsibility. She annexed to her affidavit (annexure C) a copy of the 2015 program where both children’s surnames are correctly recorded. The mother also annexed to her affidavit a bank account set up by the father for one of the children where the child’s surname was just the father’s surname and cheques that were written by the father’s mother which referred to L by the name “Sathra” and not the hyphenated name. I accept the mother had no control over the printing protocols of the dance school and I am not prepared to accept the father’s submission that I should assume that the source of the printing error was some information that the mother had provided the School as to the surnames by which the children should be known. I dismiss this charge.

CHARGE 3

1. The father alleges that the mother failed to comply with order 21.5 of the orders of 2 November 2012 which requires the mother to forward as soon as practicable to the father, copies of any diaries of future events produced by the children’s school or any organisation which the children have been involved (the order further provides that the father is not to communicate with the mother in relation to this information). The father complains that the mother failed to notify him in regards to L’s participation in a remedial or special help course learning centre program. The mother responded by saying that L has been attending school for eight years and every year, has attended special classes for children with learning problems. The mother says that L has been in this remedial class for three years and that year 8 was no different to any other year for L. The mother says that because of the long standing nature of this remedial program, the mother did not believe it was necessary to notify the father about it. She thought that he would be well and truly aware of it. The mother asserts that the father was told by L’s teacher at the beginning of the year about the special classes. The mother is concerned that the father uses the expression “for some remedial assistance of some sort” which would indicate that the father did not comprehend the special classes with learning programs that L had been involved in for a very long time.

2. Order 22 made 2 November 2012 also required each party to ensure that any school or other educational provider was authorised to provide any information concerning enrolment process, education and the welfare of the children to the other party or any other information as requested by the other party. It is clear from Exhibit 52 (a letter written by L’s principal on 10 May 2013) the mother did that at the end of 2012 and the father had the ability from time to time to obtain information from the school about L. The school principal, in Exhibit 52, said:

   .…We agreed that the father be forwarded all school reports. Newsletters were to be placed on the school portal for access to important information as is the case for all families. All major events such as swimming and athletics carnival etc are in newsletters giving long term notice to all events.

3. The father submitted that the order placed responsibility upon the mother to provide him with details in relation to the learning centre program and she had not done so.

4. The actual order upon which the father bases this charge requires the mother to forward to the father “copies of any diaries of future events produced by the children’s schools”. I am not satisfied that the father has established that the mother has breached that order.

CHARGE 4

1. The father charged that the mother had failed to inform the father about L attending a school musical or play on 1 August 2014. The father says that he asked the mother on 5 August “Did [L] recently participate in any musical events” and he did not receive a response to that request for information.

2. The mother’s evidence in her affidavit about this event is slightly confusing. She said that L took an initiative to join the choir and she had forgotten to tell her mother about it and that she did not know about it until after the event. She then did forward a copy of the flyer to the father. The father says that the flyer that he got for the Choral Showcase did not come from the mother but came from a teacher. The father sent the mother an email on 5 August asking whether or not she had forgotten to tell him about an event that L was involved in on 1 August. The flyer that the father was given by the teacher had 1 August upon it. 

3. The father submitted it is improbable the mother would not have known that L was in a choir. The father submitted that I should infer that L would have gone to rehearsals and the mother would have known about it.

4. I have no evidence at all as to what preparation L put in to sing at a school choir event (for example, whether that practice was just as part of the ordinary school day).

5. I accept the mother’s sworn evidence that she did not know about this event until after it had happened and accordingly dismiss this charge.

CHARGE 5

1. The father says the mother received notice about a school musical or play that was scheduled for 13 June 2014. He says she received that notice on 19 May 2014 and did not forward it to him until 25 June 2014. The mother’s answer to this charge was that this was not the children’s school performance nor was it an organisation which the children were involved in. This was a performance by public schools to which the children’s school was invited. It did not involve parents. The mother says that the father was sent the information but it appears that he did not take on board the fact that no parents were allowed to attend.

2. Order 21.5 required the mother to send copies of diaries of future events produced by the children’s school. Technically it would not matter under that general description whether or not parents were invited or not. I accept however the mother was under the impression that this information was in a category of information that she was not necessarily required to specifically bring to the father’s attention, particularly in circumstances where the mother had taken steps to let the school know that the father was entitled to be forwarded copies of all relevant information from the school, that all major events were contained in newsletters which gave long term notice of the events and the father had access to the school portal.

3. This charge by the father asserts a breach of order 21.5 of the orders dated 2 November 2012. That order requires the mother to forward to the father copies of any diaries of future events produced by the children’s school or any organisation with which the children are involved. There is no specific evidence that this was a diarised event but if it was, the mother would have had a reasonable excuse for concluding that the father had access to the information by means other than she forwarding copies of any diary of future events that existed in a newsletter or on the portal to which the father otherwise had access. This charge against the mother has not been made out.

CHARGE 6

1. The final charge is that M missed school in semester 1 2014 to attend a dance event and that the mother did not keep him appraised of this. When the father asked for complete details the mother did not respond.

2. The mother says dance activities are part of M’s school curriculum. The mother says that each year in May the dance school attends group weekends in Town T and had been doing so for five years prior to the alleged contravention. The father is invited to attend these events but he has refused all invitations.

3. Again, the father brings this charge against the mother relying upon order 21.5 of the orders of 2 November 2012. Presumably there was some diarised entry by M’s dance school of the group weekend at Town T in 2014 (although I do not have any specific evidence about that). However, given the evidence the mother has given, I accept that she had a reasonable basis for believing that this was not a category of information that she needed to provide to the father, as it was an annual event to which he had been previously invited. I dismiss this charge against the mother.

VARIATION OF ORDERS

1. In my Reasons delivered 22 October 2015, having found that the mother needed to answer six charges, I referred to the fact that in the context of these proceedings I also have the ability to make an order varying any order that I have previously made if that order is no longer appropriate or is creating too onerous an obligation and said:

   12.  On the next occasion I will consider the evidence the mother has filed in response to these charges, whether the mother should be subject to any sanction and whether any of the orders should be changed to eliminate the ability of the father to bring further applications for contravention in relation to some or all of these matters.

2. The relevant section is s 70NBA of the Act and it is enlivened because a finding has been made that the mother has not contravened the primary order. Section 70NBA(2) of the Act requires the court when considering a variation, to have regard to s 60CA of the Act, the best interests of the child as the paramount consideration, but also take consideration of those matters set out in that subsection. None of the subsections in s 70NBA(2) have any relevance to the facts of this case.

3. M is now 18 years of age and the orders that were made in 2012 no longer apply to her. L is almost 16 years old.

4. When the original orders were made in November 2012, orders were made which provided that the father spend regular monthly time with the children at his home in Sydney Suburb P but that he also have the opportunity to spend time with them on one weekend a month in Newcastle if he gave notice of his intention to do so. At the end of third term school holidays in 2013, M was given the option of choosing whether or not she spent time with her father and an order was made that L not need go and spend time with the father unless M went with her (unless both parties agreed that L expressed the view that she wished to see her father without M being present).

5. An order was also made (order 17) that the father may attend upon a counsellor with the children during the times the children spend time with the father and that if he intended to do so he would notify the mother of the counsellor’s contact details and shall provide authority for the mother to discuss the content of those sessions with the counsellor if the counsellor deemed that appropriate.

6. The orders of 2 November 2012 were a brave (and it turned out to be unsuccessful) attempt to facilitate some level of reconciliation in the father’s relationship with the children.

7. On 4 March 2016 the father informed the court that he no longer had any contact with either M (who is now an adult) or L. Given the history of the litigation between the parties, that outcome is not surprising.

8. From the information given by the father, L has reached the view that she does not want, at this time in her life, to have continuing contact with her father.

9. The question arises as to whether or not there is any continuing utility in the primary orders under which the father has laid charges against the mother in these proceedings and whether or not these orders, in all the circumstances, place a too onerous burden on L’s primary caregiver.

10. The proceedings themselves have been a burden on the mother. It is in L’s interests that the mother not have to worry or be anxious about whether or not she has provided the father with appropriate information about L.

11. I am of the view that the time has come whereby any information about L’s education should come as a result of the father’s own inquiries with L’s school and/or L re-establishing communications with her father. L is also old enough if she chooses, to inform her father about “major information” regarding her achievements in sporting and other activities. The father will still have the ability to make his own inquiries with L’s school, to look at L’s school portal and receive L’s school reports directly from the school. What would be taken away is the mother’s responsibility to diligently provide the father with all of this information and the future ability of the father to interact with the mother in an inappropriate manner.

12. Similarly, now that L is almost 16 years of age, it is a matter for her (if she desires) to provide her father with information about medical consultations that she might have with her treating practitioner. There should no longer be the ability for the father to be able to attend those medical appointments (unless L consents to that happening).

1. Pursuant to s 70NBA(1) of the Act I am satisfied that it is in L’s best interests to discharge orders 21 and 32 that were made on 2 November 2012 which means the mother need no longer provide the father with information about L’s medical and educational progress.

2. I note that order 33 no longer has any operation given that L has reached her 15th birthday

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 17 March 2016.

Associate:

Date:  17.3.2016