SNELL & SNELL

[2018] FamCA 790

FAMILY COURT OF AUSTRALIA

SNELL & SNELL [2018] FamCA 790

FAMILY LAW – ORDERS – Contravention – Children – Mother demonstrates reasonable excuse in respect of two counts ‑ where contravention of final orders has been found on one count – no sanction imposed – order to suspend orders for the child to spend time with the father – no order as to costs.

Family Law Act 1975 (Cth) s. 70NAE, 70NBA
APPLICANT:	Mr Snell

RESPONDENT: Mr Snell

FILE NUMBER: BRC 4332 of 2012

DATE DELIVERED: 4 October 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 3 August 2018

REPRESENTATION

THE APPLICANT APPEARED IN PERSON

THE RESPONDENT APPEARED IN PERSON

Orders

1. That the Court finds that the mother has demonstrated a reasonable excuse for failing to comply with Orders 12 and 16 made 1 June 2015 after 30 August 2015.

2. That the Court finds the mother failed, without reasonable excuse, to provide the father with copies of the school reports and medical assessments of the child, B born … 2006.

3. That the Court imposes no sanction on the mother for failing to comply with Order 21 of the Orders made 1 June 2015.

4. That pursuant to s.70NBA of the Family Law Act 1975, the Court suspends the operation and effect of Orders 12 and 16 of the Orders made 1 June 2015.

5. That there be no order as to costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4332 of 2012

Mr Snell

Applicant

And

Mr Snell

Respondent

REASONS FOR JUDGMENT

Introduction

1. In very comprehensive and considered Reasons delivered on 1 June 2015, Kent J explained why he ordered, on a final basis, that the child B (born in 2006) would live with the mother Ms Snell (“the mother”) who was also granted sole parental responsibility.

2. The said orders, relevantly for the Contravention Application filed by the father Mr Snell (“the father”) on 3 January2018, provided for the said child to spend time with the father after various conditions were satisfied, as prescribed by order 12, as follows:

   12.      The child shall spend time with and communicate with the Father:

   (a)At all such times as is directed by the family consultant or consultants appointed pursuant to orders 9 and 10; and

   (b)At such other times as may be otherwise agreed in writing between the parents, and otherwise as follows:

   (i)commencing Sunday 5 July 2015 and for the following two (2) consecutive Sundays thereafter, from 10.00 am until 12 midday;

   (ii)for the next following two (2) consecutive Sundays from 10.00 am until 2.00 pm;

   (iii)for the next following two (2) consecutive Sundays from 10.00 am until 4.00 pm; and

   (iv)thereafter, on each alternate Sunday from 9.00 am until 4.00 pm.

3. By the said Contravention Application the father alleges the mother contravened the said order 12, and also orders 16 and 21, which provided as follows:

   16.      Commencing Wednesday 8 July 2015 and each Wednesday thereafter the Mother is to facilitate the Father having telephone communication with the child at 6.30 pm with the duration of those calls to be in accordance with the child’s wishes up to a maximum of twenty (20) minutes, and for this purpose the Mother is to provide to the Father within fourteen (14) days, in writing, the telephone number for the purpose of such telephone communication.

   …

   21.      The Mother is to provide the Father with copies of the child’s school reports as and when such reports are issued and is to provide the Father with copies of any medical reports or assessments of the child that she receives.

4. The parties, who both appeared before me on 3 August 2018 without legal representation, relied on the following Affidavits, namely:

   a)The Applicant father:

   -    Affidavits by the father filed 3 January 2018; 22 June 2018 and 10 July 2018;

   -    Affidavit of the father’s partner Ms SS filed 3 January 2018.

   Both witnesses were briefly the subject of cross examination.

   b)The Respondent mother:

   i)Affidavits of the mother filed 19 June 2018 and 6 July 2018;

   ii)Affidavits of the maternal grandmother Ms TT filed 19 June 2018 and 6 July 2018;

   iii)Affidavits of Mr AA filed 19 June 2018 and 6 July 2018;

   iv)Affidavits of Ms O filed 19 June 2018 and 6 July 2018; and

   v)Affidavit of Dr UU filed 19 June 2018.

5. Ms TT was unavailable for cross examination and her Affidavit was given no weight.  The father, in my view, to his credit, chose not to cross examination the mother’s older children, Mr AA and Ms O, the siblings of the subject child.  Most of their evidence relates to events prior to the delivery of Judgment of Kent J and was not, as a result, if relevant at all, helpful.

6. The mother’s medical evidence, from her treating Psychiatrist Dr UU, opined that the mother’s “previous psychiatric symptoms have currently resolved and she presents as stable” and recorded the mother told her Psychiatrist that she held “severe concerns regarding exposure to her previous partner” and “wishes to have no direct contact with her previous partner in the Court”, which the Psychiatrist supported.

7. With both parties being unrepresented, the Court, aware of the views expressed by Dr UU, sought to manage the brief hearing in a way that did not excite tensions but allowed the father to test the mother’s primary position – namely that she had not complied with the orders of Kent J, but that she had a reasonable excuse for non-compliance.

the charges

1. Orders 6 and 8 required the father to remove from Facebook and other sites, all references to the previous proceedings and to file an Affidavit confirming he had done so.  On 6 June 2015 the father filed such an Affidavit, and although the mother asserted the father had not removed material, in the absence of evidence to the contrary, orders 6 and 8 have been complied with.

2. The Court ordered (orders 9, 10 and 11) that a Family Consultant “assist the child with the reintroduction of the father to the child.”  At the time of the orders of Kent J, B had not spent any physical time with the father for some time.

3. The memorandums of Family Consultant Mr PP dated 26 June 2015 and 1 July 2015 explain the reasons the mother failed to attend the Court on 26 June 2015 (illness) and despite indicating an intention to attend, the mother did not attend on the new date of 1 July 2015.  The father attended on both occasions.  The father did not raise a charge of contravention against the mother for these failures to prima facie, comply with the orders, but did cause the matter to be relisted before Kent J on 6 July 2018 by way of an application for a recovery order.

4. On that date his Honour, inter alia, ordered the mother to attend Court “for the purpose of presenting the child B… to the Director of Child Dispute Services…at 2.00pm today”, and further ordered that should the mother fail to comply, that a warrant be issued for the arrest of the mother.

5. The mother did comply and after the reintroduction the first visit was scheduled to then take place on 12 July 2015.

6. The father says, and I accept, that contact visits between B and his father took place:

   -    on 12 July 2015 for two hours at a shopping centre;

   -    on 26 July 2015 for two hours at a shopping centre;

   -    on 9 August 2015 for four hours at WW Park; and

   -    on 30 August 2015 for at least six hours, with time spent at the father’s home.

7. The father’s charges, as articulated in the Application for Contravention filed 3 January 2018, were somewhat vague, however in the circumstances rather than striking out the Application, I felt the interests of justice would best be served by reframing the charges as follows:

   a)Count one

   After 30 August 2015 and continuing thereafter, the mother has failed to comply with order 12(b)(iv) by failing to present the child B to spend time with the father each alternate Sunday from 9.00am to 4.00pm.

   b)Count two

   After 30 August 2015 and continuing thereafter, the mother has failed to comply with order 16 by failing to facilitate the child B having telephone communication with the father each Wednesday at 6.30pm.

   c)Count three

   After 30 August 2015 and continuing thereafter, the mother has failed to comply with order 21 by failing to provide the father “with copies of the child’s school reports…and…any medical reports or assessments…”

8. At the commencement of these proceedings on 3 August 2018, I explained the reframed charges to the mother.  She said she understood the nature of the charges; agreed she had not complied with the orders and asserts she has a reasonable excuse for not complying with the said orders.  As a result, having elected to file evidence in respect of her reasons, she was cross examined first.  Thereafter, by way of rebuttal, the father and his partner Ms SS were briefly cross examined by the mother.

9. It was a concern to the Court, raised with the father, why he had not brought any application for contravention, recovery orders or variation for nearly 29 months after contact had ceased.  He says he could not afford to pay the filing fee but when he became aware a Contravention Application did not impose a filing fee, he then filed one in January 2018.  This is at odds with his statement to the mother’s solicitor on 16 July 2015 (see postscript).

10. It was a further concern to the Court, raised with the mother, that when she took the position that further contact should cease, she took no action to seek to vary the orders of Kent J to, for example, seek to discharge the orders so far as they related to her obligation to facilitate time between B and his father.  Although a little ambiguous in her response, a combination of not having legal representation at times and just wanting everything to go away contributed to her failure to take such actions.

11. Considering the long history of litigation and the orders that his Honour made, it is a great pity that neither party did anything three years ago.

the mother’s defence

1. S.70NAE of the Family Law Act 1975 prescribes the circumstances which constitute a “reasonable excuse” which include but are not limited to relevantly in this case, the mother:

   -    believing on reasonable grounds that the actions were necessary to protect the health or safety of the child; and

   -    the period of the actions was no longer than necessary to protect the health or safety of the child.

2. The onus to establish a reasonable excuse rests upon the mother.  The mother must demonstrate an objectively reasonable basis to contravene the order – not a subjective basis.

3. On the evidence offered by the mother and tested through the father’s cross examination, I make the following findings:

   a)The mother was reluctant to begin the time, and only was encouraged to do so by the robust, yet proper orders, of Kent J made 6 July 2015;

   b)Before time commenced, the mother had engaged with the child’s general practitioner Dr XX (see Annexure “I” to the mother’s first Affidavit).  The Annexure records the “presenting problem” as being:

   “-  self-harming; and

   -     has been behaving badly – threatening self (sic) harm since becoming aware that his father is wanting custody according to his mother.”

   This appointment preceded the attendance at Court on 6 July 2015, but was after Kent J had delivered his Reasons.  The mother says the things she reported to Dr XX are her observations.  The doctor prescribed some form of mental health support, referring B to the “Acute Mental Health Care Team”.  The referral recorded B’s current medication as “Ritalin” – for his diagnosed ADHD;

   c)After the visit of 12 July 2015, Ms O deposes to B alleging the father was making negative statements about the mother and “slapping” him in the back of the head because he was “picking” his nose.  The father denies these allegations;

   d)Although the mother recalls contact occurring on 19 July 2015, the father disagrees.  Little turns on this issue, but the mother’s vague recollection persuades me to prefer the father’s evidence that time was not scheduled and did not occur on this date;

   e)Time occurred on 26 July 2015 at Suburb ZZ Shopping Centre and Ms O deposes to collecting B after the visit.  She says, and I have no reason not to accept, that B vomited in the car after the visit.  B is alleged to have told Ms O that he was fearful of his father who was mean and nasty to him and had “hounded” B, asking him who he wanted to live with.  The father denies these allegations.  B did not attend school the next day - the mother informing the school he was sick;

   f)The next visit occurred for a longer period of four hours at a venue described as WW Park.  The parties were not able to agree when this visit occurred, however the father asserts it was 9 August 2015.  There is no evidence of any similar negative presentation by B after this visit;

   g)The last visit – for over six hours – occurred, both parents agree, on 30 August 2015.  The visit occurred at the home of the father in Northern New South Wales.  The changeover location was McDonalds Restaurant, Suburb AB and whilst travelling back to that location from the father’s home, the child alleged to the mother that a “road rage” incident occurred.  Because of the significance of this event, occurring as it did on the last contact visit, I make findings about the incident later in these Reasons;

   h)On Wednesday, 2 September 2015 the mother says the child presented as “stressed and upset”.  The mother says the child told the mother “I can’t stop the yelling screaming voices in my head” which he claimed had been going on after the visit with his father on Sunday.  Thereafter the mother took the child to the general practitioner on Saturday, 5 September 2015 and was referred to a Child Psychiatrist, Dr OO on Tuesday, 8 September 2015;

   i)By this date, I am satisfied the father’s frustrations with telephone contact being denied (without an explanation he would accept), caused the father to post a note on Facebook on 9 September 2015 – a copy of which is attached to the police record tendered as Exhibit 1.  The notes states:

   I am sick of you not fostering his & my relationship. According to the Family Law Act depriving contact between father, siblings, grandparents etc. You didnt allow our son to call me on Father’s Day like he said he was allowed to last Wed. He did not call me yesterday on my Birthday…&now you thwart contact and refuse to foster our relationship. You have no morals & will reap what you sow. To make your son feel guilty and feel bad about having a relationship shows you are abusive & an abuser. I am done.

   …KNOWS your angle & has spoken about it & what I have said above.  He will contact me when he knows he can escape from you.  Just remember…its generational…ur mother did it to you & now u are perpetuating that on our child.

   You will end up with him hating you despite the lies you will no doubt tell him in the meantime.  He remembers…”

   j)On 11 September 2015, the mother caused her solicitors to write to the father (see Annexure 1 of the father’s Affidavit of 3 January 2018) in the following terms:

   As you will recall we act for [Ms Snell] with respect to the above proceedings.

   We write to give you notice that our client, for the time being, will not permit you to have time with [B] due to your contravention of the Family Court Orders dated the 1^st June, 2015.  A copy of the Orders is attached (hereinafter referred to as “the Orders”).  Your conduct, all other matters aside, is making [B] and our client ill.  Additionally, [B does not want to see you.

   We expect that next week we will receive full instructions from our client with respect to making an Application to the Court for various orders which will either restrict your time with [B] or will prevent you from having time with him absolutely.

   The first matter is that in contravention of Order 6 of the Orders you have failed to remove from your Facebook Page references to the proceedings in the Family Court.  Your entitlement to see [B] was dependent upon you removing such references. All such references are to be removed.

   We also observe that you have left rude and insulting references to our client on Facebook.  All such references are to be removed.  Your conduct is in contravention of Order 17.

   We are instructed that at changeovers and other times you have forcefully attempted to engage our client in conversation that is other than a formal greeting or farewell.  In so doing you are contravening Order 18.  Your attempts at conversation have also been in contravention of Order 17.

   You have engaged in physical bullying of [B] by kicking him and grasping him in a forceful and rough manner.  We are instructed that you also constantly scream and yell at [B] and are angry with him.  There are times when it is clear all three of you are present but [B] complains there are many times when this occurs on contact when our client is not present.  [B] has become so stressed by your conduct that he is now receiving counselling.

   Your email and text communications with our client have been aggressive, rude and insulting.  They have contained matters not relevant to [B’s] health or like matters.  Your conduct is in breach of Orders 17 and 19.

   Finally, for the purposes of this letter we are instructed that you instigated and conducted a road rage incident on the 30^th August last whilst [B] was with you in a car being driven by your girlfriend.  In this incident you tried to take control of the car and in so doing caused considerable danger to, at least, all occupants of the car.  You also hurt your girlfriend and were screaming and yelling at her.  Your behaviour terrified [B].

   We will be in contact with you in the very near future about this matter but in the meantime we respectfully suggest that until you obtain some treatment for your anger, nothing will improve.  Our client is not going to sit by and let your relentless and merciless conduct ruin both [B’s] life and her own.

   If you have any queries about this matter you should direct them to this office and not our client.  In the meantime we remind you that our client was awarded sole parental responsibility by the Court due to your past conduct and present unsuitability to undertake a joint role.  If you become aggressive and threatening towards our client or ourselves we will take this matter up with the Police.  Your past record of assaulting our client and your assault upon our [Mr. YY] in the Courtroom during the Trial leave us very concerned about your ability to control yourself appropriately.

   Our client has a considerable number of other complaints about your conduct, many of which involve breaches of the Orders and some which do not but which involve serious misconduct by you that is damaging to B and our client.  Our client reserves all her rights.”

   The mother brought no Contravention Application against the father, however in his Affidavit filed 10 July 2018, he deals with each allegation made by the mother in her Affidavit filed 6 July 2018 and further in his additional Affidavit filed 10 July 2018 he responded to every allegation made by the mother in the Affidavit filed 19 June 2018.

   k)The mother it seems contacted Police about the Facebook entry and allegations of potential stalking, but no action was taken by Police.

The “road rage” incident

1. The mother relies upon what B told her about the incident on 30 August 2015, and believes the truth of his assertion.  There is no other corroboration in respect of the version said to have been given to the mother.  In response the father (who was a passenger) and his partner Ms SS (who was the driver), gave sworn testimony that:

   a)the father did not verbally abuse Ms SS whilst driving;

   b)the father had not “slammed on the brakes” (from the passenger’s seat) and someone had crashed into the rear of the car; and

   c)about two weeks late a Police officer contacted Ms SS enquiring as to the incident as a result of a complaint by the mother.  Upon telling the officer “the incident never happened and the ‘story’ was completely false”, nothing further has been heard from the Police.

2. In cross examination, the father, when asked to reflect on whether anything occurred at all, the father said he and his partner “have a thing about Queensland drivers” and it is possible that some “banter” between them occurred, but nothing as serious as B is alleged to have told the mother.

3. In the circumstances, on the balance of probabilities, I am not satisfied that a “road rage” incident occurred as B explained to his mother.  I accept the evidence of the father and Ms SS on this issue.

Credit issues

1. Despite seven days of hearing before Kent J in early 2015, it is clear that tensions between the parties (the sources of which were identified by his Honour in his detailed Reasons), had not subsided by June 2015.  The father continuously and strenuously asserts the allegations against him of family violence during their relationship are false.  The mother continuously and strenuously denies she has engaged in “parental alienation” or has undermined the relationship between the father and B.

2. Although the father says the mother was angry that Kent J ordered the child to spend time with the father, against the proposals of herself and the Independent Children’s Lawyer at the trial, I am not satisfied that is the case.

3. The father has carried the pain of a long history of litigation and absence of time with his son, which has fuelled his sense of frustration and a firm belief that the Court system is unfair to fathers in general and to him in particular.  I do not think it remotely possible there is anything I can say in these Reasons which are likely to alter the parents’ perspective of the situation and the other parent.

4. I am not prepared, in this context, to regard either parent as more believable than the other.

5. However, on balance I do find that it is more likely than not that B found it difficult initially to reunite with his father – but that, as the father says (and the photographs he tendered demonstrated), B gave the distinct impression that he enjoyed the four visits with his father.

6. I also accept that the father probably made some adverse remarks about the mother to B, but I am not satisfied that the father physically abused him during some of the visits as B asserted.

7. I have formed the view that this young boy, with his personality and emotional characteristics, has frankly, after so many years of litigation, found it difficult – if not impossible – to navigate between the two homes over the four visits, without anxiety.

Conclusion

1. I find it is likely that the child reported to his mother incidents that he either exaggerated or embellished – and he did so because he found it too hard to have both his parents in his life at that stage.  The mother sought appropriate medical support at the time.  That evidence supports the conclusion that the visits caused the child some anxiety – not because anything happened at the visits – but for the other contextual reasons set out above.

2. In my view, the mother felt a need to protect, as she saw it, B and I am satisfied that she had discharged the onus that at the time, she had a reasonable excuse for doing so in respect of Counts 1 and 2.

3. Although there is scarce evidence as to when, if at all, the child’s anxiety subsided after 30 August 2015, when the father took no immediate actions to enforce the orders (and instead indicated he was not going to do anything), it is possible the child (certainly post relocation to a different area and school), got on with his life without any contact with his father.

4. I acknowledge that, although Kent J in his Reasons (at paragraphs 330 to 332) anticipated further proceedings were likely, a failure to bring the matter to the Court’s attention shortly after 30 August 2015, has meant it is impossible to now (some three years later) assess what might be in the child’s best interests in respect of compensatory time or new Court orders for time with the father.  The mother’s Annexure “M” from Dr OO dated 9 May 2018 reveals any further visits need to be cautiously prescribed.

5. However, this litigation must cease in B’s best interests, and in those circumstances to reduce further possible applications for contravention being filed, I will order a suspension of Orders 12 and 16 made 1 June 2015.

6. Aware of the warning articulated at paragraph 332 of the Reasons for Judgment, any future application to either discharge the suspension ordered now, or to seek to vary the current orders (which the father says he may seek so as to require B to live with him), is not restricted.  Whether it would ultimately proceed is a matter for another judicial officer on another day.

7. I do not find that the mother had a reasonable excuse for failing to provide the father with educational and health reports as required by order 21.  The father, in my view, is still entitled to be informed of B’s progress.

8. Having found that the mother has contravened order 21, without reasonable excuse, I have decided no sanction should be imposed.

9. As both parties appeared before me without legal representation, I consider it appropriate to make no order for costs.

10. The orders I formally pronounce appear at the commencement of these Reasons.

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 4 October 2018.

Associate: 

Date:  4 October 2018