Sellen & Treadway
[2022] FedCFamC2F 1361
Federal Circuit and Family Court of Australia
(DIVISION 2)
Sellen & Treadway [2022] FedCFamC2F 1361
File number: HBC 58 of 2020 Judgment of: JUDGE O'SHANNESSY Date of judgment: 27 January 2022 Catchwords: FAMILY LAW – ruling on competing contravention applications – one party in New Zealand – one party in Tasmania – mother denied alleged contraventions against her – reasonable excuse satisfied – father admitted multiple alleged contraventions against him – part heard hearing – proceedings delayed due to section 102NA oversight. Legislation: Family Law Act 1975 (Cth) ss 68B, 90NAC, 102NA and 114.
Federal Circuit Rules 2001 (Cth)
Cases cited: Harrington & Yardley [2017] FCCA 617
TVT & TLM [2006] FMCAfam 20
Division: Division 2 Family Law Number of paragraphs: 44 Date of hearing: 22 January 2021, 23-25 June 2021, 10 August 2021 and 27 January 2022. Place: Melbourne Counsel for the Applicant: Ms M A Ryan Solicitor for the Applicant: PWB Lawyers Solicitor for the Respondent: In person ORDERS
HBC 58 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SELLEN
Applicant
AND: MR TREADWAY
Respondent
order made by:
JUDGE O'SHANNESSY
DATE OF ORDER:
27 JANUARY 2022
THE COURT ORDERS THAT:
Final Parenting Orders:
1.All extant parenting orders are discharged.
2.Ms Sellen (‘the Mother’) have sole parental responsibility for X born in 2005 (‘X’) and Y born in 2006 (‘Y’) (collectively ‘the children’).
3.The children live with the Mother.
4.The children spend time with Mr Treadway (‘the Father’) as agreed in writing, email or text message, between the parties and taking into account the views expressed by X and Y, and in the event of a dispute as to what was agreed, the last communication from the Mother (in writing, email or text message) stands as the agreement.
5.Both parties not be under the influence of any illicit substance or alcohol to the extent of intoxication when the children are in their care.
6.The parties must not:
7.Harass, abuse or threaten each other nor permit third parties to do so;
8.Denigrate each other to or in the presence of the children nor permit third parties to do so.
9.Within 14 days of the date of these Orders the Mother will provide the Father with the mobile telephone numbers for X and Y.
10.The Father may communicate with X and Y by text, videocall, phone call or other electronic means at reasonable hours and with reasonable frequency.
11.The Mother do all acts and things to encourage X and Y to communicate with the Father, including their initiating communication on the Father’s birthday and on Father’s Day or if the Father has initiated communication on either child’s birthday.
12.The Father be and is restrained from and is ordered to not criticise, abuse or belittle X or Y, particularly, but not limited to occasions either child declines to communicate with the Father at all or at the time he proposes.
13.The Mother provide electronic copies of photographs of the children to the Father each quarter (each quarter being defined as on or before 31 March, 30 June, 30 September and 31 December) and provide further photos as the children may agree to from time to time.
14.The Mother provide electronic copies to the Father of the children’s school reports mid-year and at the end of the school year and not later than two weeks from the Mother’s receipt of such documents from the children’s school/s.
15.The Mother take all steps necessary to cause a copy of these parenting Orders to be registered as an overseas parenting order with the District Court of New Zealand pursuant to section 81 of the Care of Children Act 2004 (NZ) and she provide the Father with evidence that these Orders have been so registered.
16.All extant applications are dismissed.
Procedural:
17.The Father’s contravention application against the Mother filed 6 April 2020 be and is dismissed.
18.Counts 12, 10, 9, 8, 4, 7, 6, 5, 3, and 1 (chronological order) of Mother’s contravention application against the Father filed 5 November 2020 are proven and the Father is ordered to enter into a bond pursuant to section 70NEC of the Family Law Act 1975 (Cth) within seven (7) days.
AND THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Sellen & Treadway has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTJUDGE O’SHANNESSY
INTRODUCTION
These are the settled reasons of short ex tempore reasons determining my findings concerning the contravention applications listed before me. The reasons will be short because it is likely that there will be a further significant judgment following two further events. What is yet to come once I hand down my findings concerning the competing contravention applications is the addresses of Mr Treadway and of Ms Sellen's counsel, Ms Ryan, as to what penalties should apply, assuming I find that there has been a contravention. Then, it is agreed that I would sentence Mr Treadway or Ms Sellen, depending on what my findings were, and then following that when the parties know the outcome of the contraventions and the penalties, then I would hear final addresses concerning the competing applications for variation of parenting orders from them and it is contemplated that will be done today. If time permits, I hope to deliver a longer ex tempore judgment this afternoon dealing with the matter finally in circumstances of particularly how long the proceedings have been hanging around, much to the grief and pain of the parties.
The usual process is that on a matter of final orders the judgment and reasons are reserved and the judge goes away and writes the written judgment covering all of the relevant matters and then brings the matter back to court yet again and hands down that judgment and the orders. In the circumstances of how often this matter has been to court, that is not in the children's best interests and, if possible, providing there is time this day, I propose to deliver an ex tempore judgment about varying the orders after I have heard further from the parties in that regard.
BACKGROUND
The proceedings came before me on Friday 22 January 2021, which was the last day of a one-week sitting in Hobart. The proceedings concern the parents' three children: Ms B, who is now 18 years old and not the subject of the current proceedings; X, who is 15 years old; and Y, who is 14 years old (X and Y are collectively known as the “the children”). The children's mother, Ms Sellen, (“the Mother”) is aged 45 and lives in Tasmania and was employed at that time. The children's father, Mr Treadway, (“the Father”) is aged 51 and lives in New Zealand and as at the time of the hearing in June 2021 was unemployed.
Final Orders
Final Orders had been previously made in the matter on 26 February 2015 and those orders provided that the Mother will have sole parental responsibility for the children, that the children live with the Mother and that the children spend time with the Father as agreed between the parties. It was further ordered that the parties not be under the influence of any illicit substance or alcohol when the children are in their care and then there was further order number 5:
5. That the parties must not:
(a)harass, abuse or threaten each other or permit third parties to do so; and
(b)denigrate each other to or in the presence of the children nor permit third parties to do so”.
Those Final Orders did not satisfactorily quell the controversies between the parents, and on 28 November 2018 further orders were made that added to, or refined, or defined those previous orders. Those orders of 28 of November 2018 were as follows:
…
BY CONSENT THE COURT ORDERS THAT:
1.The children [Ms B] born [in] 2002, [X] born [in] 2005 and [Y] born [in] 2006 (“the children”) have telephone communication with the father each Sunday.
2.The mother provide electronic copies of photographs of the children to the father each quarter and provide further photos as the children may agree to form time to time.
3.The mother provide electronic copies to the father of the children’s school reports mid year and at the end of the school year.
4.The children have Skype communication with the father four times per year, on each child’s birthday, on the father’s birthday and on Christmas Day.
THE COURT NOTES THAT:
A.When the father’s relationship with the children improves and it is closer to the time that he intends to travel to Tasmania to spend time with the children he will consult a community based organisation.
…
Contraventions Alleged Against Mother
There were then further orders made on 15 April 2019 as the parents had trouble managing that communication. On 15 April 2019, it was ordered:
THE COURT ORDERS:
1.That the Orders providing for the father’s telephone time with the relevant children be amended so that such time take place at 4.00 p.m. (Tasmanian time) each Sunday with the father to initiate the calls and the mother to make the children available to take the calls at the appointed time.
2.The father’s Contravention Application filed 5 February 2019 be adjourned sine die but with leave for the father to relist that Application for hearing in the event of any further Contravention Application being heard first in time.
Further it was ordered that the orders providing for the Father's telephone time be amended so that it takes place at 4pm Tasmanian time each Sunday with the Father to initiate the calls and the Mother to make the children available to take the calls at the appointed time. The Father's Contravention Application of February was adjourned sine die with the Father to relist the application in the event of any further contravention application being filed.
Further Contraventions Alleged Against Mother
The Father did file another Contravention Application and the matter then came before Judge McGuire (as his Honour was then known as) on 7 April 2020. That day Judge McGuire ordered a further section 11F Report, and I note that there had been a Family Report conducted prior to the 2015 Final Orders and a further section 11F Child-Inclusive Memorandum prior to the November 2018 orders. Notwithstanding that, Judge McGuire ordered another section 11F Report. On 7 April 2020 and, importantly for the Contravention Proceedings, order number (2) and (3) were made, which are as follows:
…
THE COURT ORDERS THAT:
…
2.Pursuant to extant orders the mother is to provide to the father electronic copies of photographs of the children each quarter (each quarter being defined as on or before the 31 March, 30 June, 30 September and 31 December in each calendar year).
3.The mother provide electronic copies of photographs of the children to the father within 7 days of the date of these orders, being in respect of the quarter ending 31 March 2020.
…
Agreed Procedure for Multiple Applications
The proceedings came on before me on 22 January 2021, and by agreement with the parties it was determined that I should attempt to hear all of the proceedings that day. To facilitate that, each party was to give evidence on one occasion and the evidence they would give and be cross-examined about would essentially cover the three different parts of the proceedings. Firstly, the Father's Contravention Applications. The first being the Contravention Application filed on 5 February 2019, the further being the Contravention Application filed on 6 April 2020. The second part being the Mother's Contravention Application filed on 5 November 2020. Then thirdly the competing applications and responses in regard to final orders. The Mother filed an Initiating Application to vary the existing orders on 21 January 2020, and the Father's opposition to that was demonstrated by him filing a Response and providing by email on 18 January 2021 details of some 21 different orders that he sought.
At the commencement of the proceedings on 22 January, the Mother represented herself and the Father was represented by counsel in New Zealand. Proceedings were conducted by videolink. The matter then proceeded with each of the parents pleading to the respective Contravention Applications. The Mother pleaded to each of the allegations contained in the Father's two contravention applications and the Father pleaded to the allegations in the Mother's contravention application.
The Mother denied that she was in breach of the orders, not contesting the factual allegations, but asserting that she had a reasonable excuse. The Mother had the same position in regard to the Father's second contravention application filed 6 April 2020. In regard to the Mother's contravention application against the Father, the Father's position or plea in regard to each of those charges were taken separately and each count or allegation were read to him separately.
Below I set out the actual pleadings (taken from the transcript) of the allegations against the Father. The contraventions were not in chronological order and were subsequently numbered by me as to what I will describe as different counts as follows. These reasons abbreviate the vulgar swearing included and the parties know the words.
Plea to Allegations Against Father
Count 1 Transcript Reference: P-36(10)
HIS HONOUR: Thank you. So I’m going to number these as I go. The first numbered page is page 3 so I’m going to – number 1. 2 September 2020 5:56pm:
The father referred to me in a text message as “idiot” on two occasions.
And that is said to be in breach of order number 5 of August 2015 orders. Do you admit or deny that?
[MR TREADWAY]: …
HIS HONOUR: Pardon?
[MR TREADWAY]: I admit that, your Honour.
Count 3 Transcript Reference: P-37(19)
HIS HONOUR: Yes. Thank you. Number 3, on 4 September 2020, 5:24pm in breach of order number 5:
The respondent father text that I am a psychopath.
What do you say about that?
[MR TREADWAY]: Yes, I admit that.
HIS HONOUR: Do you admit or – admit or deny?
[MR TREADWAY]: Admit.
HIS HONOUR: And you admit that’s in breach of a court order.
[MR TREADWAY]: Yes.
Count 4 Transcript Reference: P-37(36)
HIS HONOUR: Thank you. Number 4, on 30 August 2020 in breach of order number 5:
[Y], aged 14, text the respondent father to ask if I could call now as [Y] was going to a friend’s house. The respondent father called and spoke to [Y] - - -
[MR TREADWAY]: I admit
HIS HONOUR: Hang on:
…
… This is the allegation:
The respondent father then called six times and text five times after having spoken to the children. This is excessive and the content abusive, “you obviously think this is a game you c… and you’re teaching the children the same game”.
… do you admit or deny that?
[MR TREADWAY]: I admit that, your Honour.
HIS HONOUR: Pardon? You admit that?
[MR TREADWAY]: I admit that, sir. Yes, your Honour.
HIS HONOUR: And you admit it’s in breach of a court order?
[MR TREADWAY]: Yes, I do, your Honour.
Count 5 Transcript Reference: P-38(23)
HIS HONOUR: Thank you. Number 5:
The respondent father –
On 28 August 2020:
The respondent father sent 17 abusive and harassing text message with the below content.
I’m not going to ask you to respond to the allegation of “about 17”. Because in fact, what is referred to here is 1, 2, 3, 4, 5, 6, 7, 8. So I’m going to amend that from 17 to eight abusive text messages. [Ms Sellen], do you complain about that?
[MS SELLEN]: No, your Honour.
HIS HONOUR: So what I’m asking you to plead whether you admit or deny:
The respondent father sent eight abusive and harassing text message with the below content “No wonder you’re single”. Next, “go crawl back into that horrible hole you crawled out of you sick b…. Oh, that’s right, you’re obviously already there because only sick, horrible c… take pleasure in cutting off children from their dad”. Next, “you horrible c…!!!” with three exclamation marks. Next, “you’re a f… sick woman, [Ms Sellen].” Next, “you think that’s a gift. You are a f… c… crawling through dog s…”. Next, “you’re a f… wanker”. Next, “I detest you and all you stand for”. Next, “c…”.
Do you admit or deny those allegations?
[MR TREADWAY]: Admit them, your Honour.
Count 6 Transcript Reference: P-39(8)
HIS HONOUR: Number 6, 25 August 2020:
The respondent father text nine times –
I’m only going to treat that as two times because they are what’s alleged there. Because – [Ms Sellen], because these are quasi criminal, I have got to deal with this strictly.
[MS SELLEN]: Yes.
HIS HONOUR: There is affidavit – there is evidence in your affidavit that would corroborate the nine times but the allegation is what’s set out here. Okay. I applied a strict rule to his evidence. I’m applying the same to yours. So, [Mr Treadway], you’re asked to respond to two allegations:
The respondent father text two times. First, “every woman I know hates women like you who deny access to the father”.
Second allegation:
“You’re hated in society”.
Do you admit or deny those two allegations.
[MR TREADWAY]: I admit, your Honour. Admit, your Honour.
Count 7 Transcript Reference: P-39(34)
HIS HONOUR: Number 7, 9 August 2020:
The father called the children –
It’s said to be the breach of the same orders:
The father called the children at 4.37. He also sent 26 text messages with the following content.
I’m going to regard – treat that as six, rather than 26, [Ms Sellen].
[MS SELLEN]: Yes, your Honour.
HIS HONOUR: Of course, if there are 26 messages in the affidavit, those – that allegation would be alive for the purpose of the welfare of the children’s proceedings. But in terms of what you’re pleading to here, that is now six allegations. Do you admit or deny? Sorry, I had better read them out:
“You’re a f… b…, [Ms Sellen]”. Next, “your parenting is ridiculous”. Next, “you need your head read”. Next, “you’re f… useless at it”. Next, “child access denier”. Next, “f… coward, no wonder you’re still single”.
Do you admit or deny?
[MR TREADWAY]: I admit that, your Honour. Admit.
Count 8 Transcript Reference P-40(14)
HIS HONOUR: Thank you. Number 8:
Nine text messages –
I’m going to amend that to six for the same reason.
[MS SELLEN]: Yes, your Honour.
HIS HONOUR: 13 July 2020:
“You’re a sick woman”. Next, “you’re a condescending f… and you’ve taught our children to be like you and [Ms C]”. Next, “you’ll get yours, [Ms Sellen]”. Next, “have another wine because you’re a drunk”. Next, “you need to see a psychologist”. Next, “you’re a mental case”.
Do you admit or deny those allegations? Those six allegations.
[MR TREADWAY]: I admit those, your Honour.
Count 9 Transcript Reference P-40(33)
HIS HONOUR: Number 9, 31 May 2020:
I text the respondent father at 5.42pm asking if he would be calling. The father responded with 18 text messages, however did not call the children.
The – I take the allegation – as I understand the allegation, the breach of the order is not in the 18 text messages, but the breach of the order is you didn’t call the children on the day you were meant to call the children, being 31 May 2020 at 5.42pm.
[MR TREADWAY]: Yes, I admit that.
HIS HONOUR: What do – what do you say?
[MR TREADWAY]: I will admit that, your Honour.
HIS HONOUR: I’m just going to make a note on this document that what you’re admitting is the not calling.
Or, [Ms Sellen], is it – the 18 text messages, are they alleged to be – yes, no. I’m sorry, I have – I’m mistaken there, [Ms D], aren’t I? When I read – when I read the part of the order that’s put there, number 5, “harass, abuse, threaten, denigrate”, what I’ve asked [Mr Treadway] about, what’s alleged to be the “harass, abuse or threaten” is the 18 text messages. And the comment, “however he did not call the children” is really a comment. So what’s – that one is that on that day, that time, you sent 18 text messages. Do you admit or deny?
[MR TREADWAY]: I will admit that, you Honour.
Count 10Transcript Reference P-41(14)
HIS HONOUR: Thank you. Number 10, 23 April 2020:
The respondent father text at 7.28am, which was a Thursday, asking to speak to the children. I replied at 10.13am that, “no one wants to”. This was not a court ordered telephone call.
Now, I’m not asking you to plead to that. That’s just factual background:
The father sent a further 14 harassing text messages.
Do you admit or deny that?
[MR TREADWAY]: Admit that, your Honour.
HIS HONOUR: Sorry?
[MR TREADWAY]: Admit, your Honour.
Count 11Transcript Reference P-41(32)
HIS HONOUR: Thank you. Thank you. Number 11, 23 January 2020:
The respondent father sent the below two text messages.
Breach of order number 5(a) and (b). First:
“I think you should study technicalities. Or is that a major word for a dropout”.
Do you admit of deny?
[MR TREADWAY]: I admit that but I don’t think it’s breaking any order, your Honour.
HIS HONOUR: Okay. I’m going to put “admit I did send the text but not a breach of the court order”. All right. I’m going to put a “deny” at the bottom of that because you’re denying it was a breach of the court order, [Mr Treadway]. Is that – is that fair? Yes.
[MR TREADWAY]: Yes
Count 12Transcript Reference P-42(6)
HIS HONOUR: And I’m going to go back and mark number 2 the same, “deny”. Okay. Number 12, 22 January 2020:
Respondent father sent 14 abusive text messages with the below discriminate words directed to me, the applicant mother.
And I will read them:
“You’ve had plenty of warnings”. Next, “f… off”. Next, “f… off, I’m prosecuting you”. Next, “what happened to Mr E”. Next, “Mr E, Mr E, 15 Mr E. Ha ha. Pity you put my children through your idiot relationship”.
Do you admit or deny?
[MR TREADWAY]: I admit that, your Honour.
Count 13Transcript Reference P-42(22)
HIS HONOUR: Thank you. Number 13:
The respondent father did not call at the court ordered time of 4pm.
Sorry, 18 October 2020:
Did not call at the court ordered time, stating he was running late.
[MR TREADWAY]: Deny. I mean, I admit but it – I don’t think it’s in breach of a court order.
Count 14Transcript Reference P-42(33)
HIS HONOUR: Okay. So I’m going to mark that “deny that you’re in breach of a court order”. 14:
On 11 October The respondent father did not call at the court ordered time of 4pm. He called the following day, stating he had lost his phone.
Do you admit or deny that’s a breach of the court order?
[MR TREADWAY]: I admit that, your Honour.
HIS HONOUR: Sorry?
[MR TREADWAY]: I admit that, your Honour. Yes, admit.
HIS HONOUR: Yes. But do you admit it’s a breach of a court order? That is a breach of the court order without reasonable excuse.
[MR TREADWAY]: No, I deny it.
HIS HONOUR: Thank you. Because you’re admitting that this is without reasonable excuse, okay? And if you’ve lost your phone.
[MR TREADWAY]: Yes.
Count 15Transcript Reference P-43(13)
HIS HONOUR: I’m not saying I would find it. I have to listen to what [Ms Sellen] says but it may be that I would say that’s a reasonable excuse if that’s true. 15, 4 August 2020:
The father did not call at the court ordered time of 4pm.
Do you admit or deny that that’s a breach of that order without reasonable excuse?
[MR TREADWAY]: Deny.
Count 16 Transcript Reference P-43(23)
HIS HONOUR: Thank you. 16, 28 June 2020:
The respondent father did not call at the court ordered time.
[MR TREADWAY]: Deny.
Count 17 Transcript Reference P-43(29)
HIS HONOUR: 17, 31 May 2020:
Father did not call the children at the court appointed time of 4pm.
[MR TREADWAY]: Deny.
Count 18Transcript Reference P-43(35)
HIS HONOUR: 4.05:
I text the respondent father asking if he would be calling. No reply. I text again at 4pm, “are you calling”. The father called at 5.56 however we were unavailable. The father text a further four times.
This is alleged to be a breach of the order that you call at 4pm.
[MR TREADWAY]: Deny. Deny, your Honour.
HIS HONOUR: Do you admit or deny that you breached that order without reasonable excuse?
[MR TREADWAY]: I deny that, you Honour.
Count 19Transcript Reference P-44(3)
HIS HONOUR: Thank you. 23 February 2020:
The respondent father did not call at the court ordered time of 4pm, however the father text at 7.22 and sent a further 15 messages.
That’s alleged to be a breach of the order that you didn’t call at 4pm.
[MR TREADWAY]: Deny that.
HIS HONOUR: Thank you.
[Ms Sellen], for my benefit, have we got an offence of sending 15 text messages as breach of the harassment ..... is that – is that date – that’s the only time that ..... figures.
[MS SELLEN]: Yes, your Honour.
Count 20Transcript Reference P-44(20)
HIS HONOUR: Yes. Thank you. Number 20:
Respondent father did not call the children.
Alleged to be a breach of the order that you call at 4pm.:
I text at 4.19, “are you calling?”. I received no response.
Do you admit or deny?
[MR TREADWAY]: Deny, your Honour.
Count 21Transcript Reference P-44(32)
HIS HONOUR: And 21:
The respondent father did –
On 29 December 2019:
The respondent father did not call at the court ordered time. Instead called at 8.39 when both [X} and [Y] were in bed.
Do you admit or deny that’s a breach of the court order without reasonable excuse?
[MR TREADWAY]: Deny.
The Father did not contest any of the acts alleged against him. In regard to the first count regarding the acts on 21 September 2020 the Father admitted that he had been in breach of the order. In regard to count 2, the Father admitted that he had undertaken the conduct but said that it was such as to not breach a court order, which I took as a denial as being in breach of the order. The Father admitted the behaviour alleged being in breach of the order in regard to count 3 on 7 September 2020. He admitted the behaviour, and that it was in breach of a court order alleged in count 4 on 30 August and admitted the behaviour in regard to count 5, which was behaviour on 28 August 2020. The Father admitted that the factual allegations in count 6, being behaviour on 25 August 2020, were a breach of court orders. The Father admitted that count 7, the matters alleged there being behaviour on 9 August 2020, was in breach of the orders; as he did for count 8 that related to 13 August 2020; as he did for count 9 which related to behaviour on 31 May, as he did for behaviour with regard to count 10, behaviour on 23 April 2020; as he did in regard to behaviour in count 11, 23 January 2020 where he admitted the behaviour but asserted that this was not a breach of court order. The Father admitted to the behaviour alleged in count 12 which was behaviour on 22 January 2020 and admitted that it was a breach of court order. He admitted the behaviour in regard to the count 13, behaviour on 18 October 2020, but asserted that that behaviour did not constitute a breach of the court orders. The count 14 complained of behaviour on 11 October being that he did not call at the court-ordered time was withdrawn on 23 June 2021. The Father, in regard to count 16, 28 June, denied that behaviour alleged and, in any event, that count was withdrawn on 23 June 2021. The counts contained in counts 8, 17, 18, 19, 20, 21 were all withdrawn on 23 June 2021. In addition, it needs to be noted that count 2, which related to behaviour on 10 August was no longer pursued and I regard that as withdrawn. In regard to the behaviour on count 11, behaviour on 23 January, I was advised that would not be pursued. Count 13, behaviour on 18 October, was withdrawn, as was count 14 and, as I have said, 15, 16, 17, 18, 19, 20 and 21.
The matters where the contraventions were withdrawn related to the Father not calling when the orders provided that he would. Hence I am satisfied by the Father's plea when the relevant counts were read to him, and by the evidence, that the Father did breach the orders as set out on those occasions in regard to count 1, count 3, count 4, count 5, count 6, count 7, count 8, count 9, count 10 and count 12. The remaining counts were withdrawn or not pursued.
Allegations Against Mother
The first contravention application against the Mother was filed on 29 January 2019. That Contravention Application was dismissed when the matter came before me on the first occasion on the basis that the affidavit said to be in support of it did not provide evidence sufficient to have the Mother called to answer the allegations or give evidence. She had pleaded and denied that she had breached the orders. At one point, there was a contention by the Mother that she had not been served with the affidavit in support of that but only the contravention application. I indicated then that I would dismiss the matter because it appeared there was no evidence filed in accordance with the Federal Circuit Rules Court 2001 (Cth) (“the Rules”), as were the Rules in place at the time, and I did not regard the Mother being shown an affidavit by the Court during the hearing as sufficient notice to permit the affidavit to then go into evidence.
Subsequent to that indication, the Father and his counsel (and I note the Father was represented by counsel in New Zealand (Ms D) on 22 January 2021) were able to identify and tender into evidence an Affidavit of Service that demonstrated that in addition to the Contravention Application that the Mother had been served with the Affidavit. In those circumstances, I treated the Father's counsel's submissions as an application to re-open the case and, in the circumstances where the finding or indication that I had made had not been entered into the Court record, I regarded myself as at liberty to revisit that Contravention Application and I did so. I then considered the Affidavit. I then raised with the Father's counsel whether or not there was evidence sufficiently in the Affidavit that would warrant calling on the Mother, in other words, whether there was no case to answer.
The Mother sought that the matter be dismissed there and then on the basis of insufficient evidence. The Father’s counsel was unable to persuade me that there existed sufficient evidence to have the Mother called upon in regard to the first Contravention Application as follows:
HIS HONOUR: So – and I have read [the] affidavit just in case it contains sufficient statements in there that I could find them – I could find that there was evidence at least, [to] call on her to justify her behaviour or hear her side of the story. But I don’t have the evidence so I’m going to dismiss the contravention application filed 5 February 2019. I might add, [Ms Sellen] and [Mr Treadway], [Ms D], the allegations in there, from my point of view, are still alive in the sense of the general inquiry into the children’s welfare because I don’t take the same technical approach [to that application]. …
…
The second Contravention Application was filed on 6 April 2020 and each of those counts and the pleas that the Mother made to that are as follows:
Count 1 Transcript Reference: P-32(30)
HIS HONOUR: 23 March 2020, number 1:
Without reasonable excuse, refused to allow the applicant to talk with the child, [Y].
Do you admit or deny that?
[MS SELLEN]: Deny, that it was on reasonable excuse.
…
Count 2 Transcript Reference: P-32(47)
HIS HONOUR: … Number 2, 1 March 2020:
The respondent, without reasonable excuse, failed to provide the applicant with electronic photos of the children [Ms B], [X] and [Y].
That’s on 1 March at 4pm. What do you say about that?
[MS SELLEN]: I deny, your Honour, for the same reason.
Count 3 Transcript Reference: P-33(8)
HIS HONOUR: Number 3, on 1 February 2020 at 4pm:
The respondent, without reasonable excuse failed to provide the children’s 10 school reports by the end of December 2019 to the applicant.
[MS SELLEN]: Guilty, your Honour. But it’s not specified in the order that it has to be before that time.
HIS HONOUR: Well, I think – no. You – if you had a lawyer, you would say, “we admit we didn’t do it but it’s not a breach of the order”. Is that what you’re saying to me?
[MS SELLEN]: Yes, your Honour.
HIS HONOUR: Yes. So you admit you didn’t supply the report by the end of December 2019 but you rely on [an] interpretation of the order that you weren’t required to do it by that date?
[MS SELLEN]: Yes, your Honour.
HIS HONOUR: All right. Did you do it by any other date?
[MS SELLEN]: Yes, your Honour.
Count 4 Transcript Reference: P33(32)
HIS HONOUR: Okay. Number 4, 15 March 2020:
The respondent, without reasonable excuse, refused to allow the applicant to talk with the child [Y].
[MS SELLEN]: I’ve forgotten what I’m supposed to say. Not guilty? Not - - -
HIS HONOUR: Don’t admit it.
[MS SELLEN]: I don’t admit. No.
HIS HONOUR: Thank you. Don’t admit, for the same reason?
[MS SELLEN]: Yes, your Honour.
Count 5 Transcript Reference: P-34(1)
HIS HONOUR: Number 5, 8 March:
The respondent, without reasonable excuse, refused to allow the applicant to talk with the child [Y].
What do you say?
[MS SELLEN]: Don’t – don’t admit, for the same reason.
Count 6 Transcript Reference: P-34(10)
HIS HONOUR: … Number 6, 1 March:
The respondent, without reasonable excuse, refused to allow the applicant to talk with the child, [Y].
[MS SELLEN]: No, your Honour, that’s not correct.
HIS HONOUR: You don’t admit?
[MS SELLEN]: I don’t admit, your Honour.
HIS HONOUR: Is there - - -
[MS SELLEN]: For the same reason.
Count 7 Transcript Reference: P--34(25)
HIS HONOUR: Thank you. 7, 23 February 2020: 25
Without reasonable excuse, refused to allow the applicant to talk with the child, [Y].
[MS SELLEN]: Don’t admit, your Honour, for the same reason.
Count 8 Transcript Reference: P-34(32)
HIS HONOUR: 8:
The respondent, without reasonable excuse, refused to allow the applicant to talk with the child, [Y].
[MS SELLEN]: I don’t admit, for the same reason.
Count 9 Transcript Reference: P-34(39)
HIS HONOUR: 9:
Respondent, without reasonable excuse, refused to allow the applicant to talk with the child, [Y].
[MS SELLEN]: Don’t admit, your Honour, for the same reason.
Count 10 Transcript Reference P-34(46)
HIS HONOUR: Number 10
The respondent, without reasonable excuse, refused to allow the applicant to talk with the child, [Y].
[MS SELLEN]: I don’t admit, your Honour, for the same reason.
Count 11 Transcript Reference P-35(6)
HIS HONOUR: … number 11:
The respondent, without reasonable excuse, refused to allow the applicant to talk with the child, [Y].
[MS SELLEN]: Don’t admit, your Honour, for the same reason.
Count 12 Transcript Reference P35(13)
HIS HONOUR: Number 12, 19 January 2020:
The respondent, without reasonable excuse, refused to allow the applicant to 15 talk with the child, [Y].
[MS SELLEN]: I don’t admit for the same reason.
Count 13 Transcript Reference P-35(20)
HIS HONOUR: Number 13: 20
The respondent, without reasonable excuse, refused to allow the applicant to talk with the child, [Y].
[MS SELLEN]: I don’t admit, for the same reason.
Count 14 Transcript Reference P-35(27)
HIS HONOUR: Number 14:
5 January 2020, the respondent, without reasonable excuse, refused to allow the applicant to talk with the child, [Y].
[MS SELLEN]: Don’t admit, your Honour, for the same reason.
Count 15 Transcript Reference P-35(34)
HIS HONOUR: Number 15:
The respondent, without reasonable excuse, refused to allow the applicant to talk with the child, [Y].
[MS SELLEN]: I don’t admit, for the same reason.
HIS HONOUR: Sorry, that’s on 22 December 2019.
[MS SELLEN]: Yes, your Honour. I don’t admit.
The Mother at that time was unrepresented but she pleaded to each of those charges by denying that she had breached the order and asserting that she had a reasonable cause to act as she had. Count number 1 related to refusing to allow Y to talk with the Father on 23 March 2020. Count number 2 provided that without reasonable excuse the Mother had failed to provide the Father with electronic photos in accordance with the orders. Count number 3 was that the Mother without reasonable excuse failed to provide the children's school reports by the end of December 2019 to the Father. Charge number 4, 5, 6, 7, 8, 9, 10, 11 and 12, 13, 14 and 15 all related to the Mother without reasonable excuse refusing to allow the Father to talk with the child Y.
Those orders were drafted by the Father as a litigant in person and I propose to proceed on the basis that the orders provided an obligation on the Mother to facilitate Y speaking to his father. The Mother’s counsel (the Mother was ultimately represented after a section 102NA order was made) helpfully referred to TVT & TLM [2006] FMCAfam 20 and Harrington & Yardley [2017] FCCA 617 and the authorities referred to those cases about the obligation upon a parent to facilitate court orders that was helpfully provided to me by Ms Ryan. The Mother did not deny that on the dates complained of by the Father in regard to Y that Y did not speak to him on those days and, indeed, the Mother's counsel very candidly and properly also conceded that Y did not speak to the Father on those occasions.
The issue of the contravention is governed by Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”). Section 70NAC provides:
Section 90NAC Meaning of contravened an order
A person is taken for the purpose 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; or
(b) otherwise -- he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
The Father's drafting of the contravention by using the word "refused to allow" imports an allegation under section 70NAC(a)(i) of the Act that the Mother intentionally failed to comply with the order. I have determined that in the circumstances of he being a litigant in person, that the charge should be treated as if the Father was alleging that the Mother by refusing, had failed to comply with, and made no reasonable attempt to comply with, the order and I read it in that wider sense.
The counts of the Mother really fall into two categories. I will deal separately with the charges relating to Y. In regard to count 2, that is on 1 March 2020 the Mother without reasonable excuse failed to provide the Father with electronic photos of the children Ms B, X and Y. I find that that particular charge either intentionally or failed a reasonable attempt is not made out. I am not satisfied on the balance of probabilities that the Mother intentionally failed to comply with that order or made no reasonable attempt to comply with that order. It is significant that at the time the behaviour complained of was made, the provision of electronic photos was governed by order number 2 of 28 November 2018, that is, the Mother provide electronic copies of photographs of the children to the Father each quarter and provide further photos as the children may agree from time to time.
The evidence is, and I accept, that on 22 January 2020 the Mother provided photographs to the Father. Were the obligations to be imposed on the Mother, in the period from the end of 2019 up to 7 April 2020, to be that she must provide the electronic photographs by a particular date, that is for the year of 2019, as determined by the 7 February 2020 orders, that would be she would have had to have done that by 31 December. I am not satisfied that in the circumstances of the then existing order not specifying the time that the Mother's provision of the photographs on 22 January 2020 was a breach of the orders. The context in which they were provided are set out in the Mother's affidavit, including the photographs that were sent. Were that obligation of 7 April 2020 to apply retrospectively, which of course it could not, then it can be seen that in regards to the 7 April 2020 specified date regimes that the Mother was late in that the photographs were not provided until 22 days after the end of the year. In any event, had the orders of 2018 provided the date, the Mother would have been technically in breach of that order but I would not regard that breach as a serious breach in the circumstances where 22 days after the end of the quarter the photographs were provided.
I am aware and cognisant of that charge, on the Father's evidence (from his perspective) falls within a general category of the Mother not taking the orders sufficiently seriously or taking his relationship with children sufficiently seriously. However, that general concern that he has does not mean that I can, on the balance of probabilities, find that the Mother intentionally failed to comply with that order in the timeframe alleged or made no reasonable attempt to comply with the order. Complying with the order after the relevant quarter and reasonably proximate to it, that is within 22 days, could well be seen as a reasonable attempt to comply with the order. Hence, that contravention notwithstanding that it would have been made out under the 7 April 2020 orders is not made out.
Dealing, then, with count number 3, the Mother without reasonable excuse failed to provide the children's school reports by the end of December 2019 to the Father. Again, this order falls within the same category as the photographs order. By the 28 November orders, the obligation of the Mother was to provide electronic copies to the Father of the children's school reports mid-year and at the end of the school year. It is the evidence, that I accept that the reports were sent by email but on or about 22 January 2020. In other words, they were sent some three weeks after the end of the calendar year or a number of weeks after the end of the school year.
I am not satisfied on the balance of probabilities that the Mother intentionally failed to comply with the order or made no reasonable attempt to comply with the order. On the evidence I have, there was no reminder, polite request or otherwise from the Father to the Mother, "school year has ended, could I please have a copy of the school report". The orders were only made on 28 November 2018 and this is behaviour complained about in regard to the 2019 school year and the Mother could be expected to have the requirements of that order reasonably close in her mind. The Father's case gains some force by the fact that the Mother provided both the photographs and the school reports on 22 January, being the same day that the Father provided text messages. I have found that what he admitted constitutes a breach of the court orders and those communications on the day where the Father sent 14 abusive text messages was as originally alleged by the Mother. Only six were particularised in the Application and I regarded that as an allegation of sending six messages.
The text messages include that the Mother had had plenty of warnings, she was told "F off", "F off, I'm prosecuting you", "What happened to Mr E? Mr E, Mr E, Mr E, ha ha ha". For the purpose of these reasons and anyone reading them, Mr E is a reference to a friend of the Mother's who suffers the disadvantage of a serious medical condition. It's coincidental that I am delivering these reasons the day after a well-known sportsman who has a disability and is wheelchair-bound is about to play in an international sporting event, the point of that being that Mr E was a person known to the Father and known to the Mother. The Father had chosen to belittle that man and his circumstances in anger to the Mother on that occasion.
I simply do not know whether the "F off, I'm prosecuting you" prompted the Mother's memory to send the photographs and the school reports and that they may well have. In any event, they were sent on 22 January or thereabouts. The orders required that the school reports be sent at the end of the school year. In the circumstances where the Mother (and it is common ground that the school year ended in December) has sent those relevant documents the following month, I am not satisfied on the balance of probabilities that she intentionally failed to comply or made no reasonable attempt.
In terms of the remaining alleged contraventions, they cover a significant period of time and are at different dates and not in the order.
Section 102NA Conundrum / Adjournment
An unfortunate and a very significant development occurred on 22 January 2021 at a time when the Mother was conducting her litigation as a litigant in person. Her cross-examination of the Father was personally done by herself and the Father was giving evidence via videolink from New Zealand (and represented by counsel also in New Zealand). The Mother was in the courtroom in person before me. I was unable to observe any particular trauma or difficulty or discomfort on the Mother's part in undertaking cross-examination. She had, and a number of questions that she asked, though at time needing assistance by rephrasing to have one proposition at a time rather than a rolled up proposition, were questions of considerable relevance, insight and value to me. Not all lawyers that appear before me have prepared their cross-examination as well as it was apparent that the Mother had that day. Nonetheless, as the proceeding that day progressed, it occurred to me, and I raised it, that the parties wished to cross-examine each other and there were allegations of family violence between parents. There was, by reason of paragraph 5 of the orders, an injunction pursuant to section 68B or 114 of that Act, that is, section 102NA(1)(c)(iii) of the Act had been satisfied as well as subsection (a) and (b) of that section. I was then prohibited by law from permitting the parties to cross-examine one another, hence I interrupted the hearing, and the Mother took legal advice (duty lawyer). I made an order under the section 102NA scheme and she sought to have the advantage or disadvantage, as the case may be, of that scheme. That necessitated an adjournment to enable the Legal Aid Commission of Tasmania to consider the request under the scheme and to arrange representation.
Section 68B and Section 114 of the Act
At that time, I did not give consideration, not did anyone else, to the concept that though the Father was represented on the first day of the hearing that he may be unrepresented subsequently. I had not considered that nor was that raised with me. I am not critical of anyone for doing so. It appears to me that the parties had turned their minds to the provisions of section 102NA in regards to there not being a final family violence order in compliance with or as described in section 102NA(1)(c)(ii). However, the issue of the injunction under section 68B or 114 had not been considered and had not been considered by oversight. In my experience, this was not the first case where such an injunction made years ago for the personal protection of the party in the ubiquitous terms that it was made has been overlooked as triggering section 102NA.
In any event, the matter then came before me on the next occasion after it needed some time for the Legal Aid Commission to organise representation. Then further time was lost whilst I was able to find time to hear the further conduct of part heard matter. By the time the Legal Aid Commission had obtained representation, it was apparent to me that the parties' original estimates of how long the matter would take were wildly ambitious and optimistic.
Section 102NA Applies to Father Also
I needed to find more than one day for the matter to conclude and I was not able to do so until June 2021. The three hearings then continued before me over 23 June 2021, 24 June 2021 and 25 June 2021. On 25 June 2021, the matter concluded at 3.57pm. The June hearings were via videolink with myself attending from Melbourne, Ms Ryan, the Mother's counsel, attending from Hobart and the Father attending from New Zealand. The matter did not conclude and I then found another day, 10 August 2021, for the matter to resume where the matter took from 10.09am until 4.39pm. The return of the matter raised the further difficulty with the Father now unrepresented. The prohibition on cross-examination is a two-way street and applied to both parties, and that meant that I could not permit the Father to cross-examine the Mother.
On 23 June 2021, discussion ensued as to how to deal with that problem and by agreement with the parties it was determined that the Father would not cross-examine the Mother. Instead, he would raise a topic that he wished the Mother to be questioned about, posit a topic or, indeed, a question and that I would ask the question of the Mother. This was not cross-examination but it was ventilation of the issues that concerned the Father and the process was, in fact, helpful by eliciting evidence relevant to the Father's concerns and that was relevant to the welfare of the children.
Cross-examination of Father
The Father was cross-examined by the Mother's counsel. That cross-examination included reference to the 2015 Family Report of Dr F. In particular, the Mother relied upon the observations of Y to the family report writer at paragraph 38 of that report. Y was then eight. The full text of that observation is as follows:
[Y], age 8
38.[Y] presented as a seriously psychologically-affected child within this dispute. He presented as depressed and withdrawn. [Y] advised that he is in grade three at [G School]. He appeared to find it difficult to express himself for the assessment, and sometimes resorted to hand gestures to express him feelings (e.g., thumbs up or down).
Children’s Views
The other matter relevant to the children's cooperation with their parents' direction to comply with existing orders by speaking with the Father is the 11F report of May 2020. On 7 April, which is the day after the Father filed the Contravention Application. The judge also ordered an 11F report. The 11F interviews were conducted on 4 May and the report was released on 7 May. The report indicated the children's strong views that they did not wish to speak to the Father and that they were troubled by doing so. The Mother's evidence also indicated that at least on occasions it fell to Y to speak to his father, on the occasions complained of, after Ms B and then X had spoken to their father.
I find that the Father's communication with Ms B and X, at least on occasion, has been conflictual. The Father has, rightly or wrongly, been unhappy with the manner of the communication of Ms B and X with him. I infer not only the content but also the tone was conflictual. The evidence is that he has himself at times ceased to call because of the manner in which the children had spoken to him. The dynamic for Y is that he then is expected to speak to his father following the other children. I find that on each of the occasions the Father complains about, the Father had spoken to Ms B and X.
During the cross-examination of the Father by the Mother when she was in person (before the section 102NA conundrum was discovered) it was established, and the Father agreed, that on these occasions where he complained about not speaking to Y, had he not spoken to Ms B and X he would have complained and included that in the contraventions. There was also the evidence of the Father that he was unable to recall, and I am not surprised by this and his candour was appreciated, that at this point in time he could not recall which days he spoke to which child.
The other aspect that needs to be looked at is that in Dr F’s 2015 report, the children complain about the nature of the text messages from the Father to the Mother. Were the Father's complaints to be looked at solely within the prism of the allegations that he makes and with the judge to turn a blind eye to the contraventions alleged by the Mother, that is essentially frequent, lengthy abuse in text messages by the Father of the Mother, then very significant evidence would be ignored. The difficulty is that Y is expected to speak to the Father after observing the communication between Ms B and X and in the context of being aware of, and Ms B and X being aware of, text message abuse from the Father to the Mother. The text message abuse comes at the same time or within days of Y's failure to speak to him.
The Mother's evidence was that the abuse was traumatising to her and I accept that. The nature of the abuse or of the text communications means that it is self-evident that it would be traumatising and difficult for anyone to read that communication, not just one-off but over and over and over and over again. The Father's case was that the Mother should not have exposed the children to that communication. The Father is correct that it would be preferable for the children's welfare if they not to know about that. The practical reality was that the Mother ensured that she made her mobile phone available for the Father to ring. There is not an allegation that on any Sunday she did not (in the second contravention allegation, there was in the first) make her phone available for the Father to speak to at least one, if not two, of the children on the occasions where Y did not speak to his father. It is unrealistic to expect that the toxic relationship between the parents and the continuing abuse of the Mother by the Father, would not affect the children, and would not affect Y.
Exhibit M4 contains evidence where the Mother was asked to search her text communication and find what were called difficult or bad examples of her text messages to the Father. I have had regard to those. There were on occasions from the Mother sarcastic or supercilious responses to the Father. By and large, those communications are few. The communications that the Father made to the Mother were in response to his own feelings of frustration at not being able to speak to Y, and other matters relating to the children as well such as at times of dealing with birthday money and other matters. But those communications were happening around about the time of the Father’s complaints.
The Father has lived in New Zealand since prior to the 2015 orders. The reality is that the Mother's household where the children live, is the major source of comfort and security for the children. It would be exceptionally difficult for the children to speak to their father, even assuming that they wish to have a relationship with him and love him or want to love him, in the context of their mother being abused. I take all of the evidence into account, including what I will call the "smart-alec" communications from time to time from the Mother back to the Father. Applying the widest prism to breach of the orders, that the Mother intentionally failed to comply with the order or that she made no reasonable attempt to comply with the order, I find that in circumstances where she made her phone available, made Ms B available and made X available, I do not accept that she intentionally failed or made no reasonable attempt to have Y available.
I need, for the Father's benefit and, indeed the Mother’s benefit, to point out that a finding that those contraventions are made out is not a finding that the Mother has done absolutely everything she can conceivably do no matter what the circumstances. Rather, in all of the circumstances, including the nature of the relationship, the repeated abuse, the children's knowledge of that relationship and of the abuse, the older children speaking to the Father, I am not persuaded on the balance of probabilities that the Mother failed to comply or made no reasonable attempt to comply. In dealing with the final parenting applications, I will have more to say about those dynamics but that is sufficient for the purpose of dealing with the Contravention Applications. It is now nearly 1:25pm in Melbourne, Australia. I am going to adjourn to 2.30pm to hear further from the parties.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 10 October 2022
0
2
0