SPARGO & SPARGO

[2014] FamCA 1022

FAMILY COURT OF AUSTRALIA

SPARGO & SPARGO [2014] FamCA 1022

FAMILY LAW – CHILDREN – Contravention – Where the father’s application alleges six counts of contravention by the mother – Where the mother conceded that her alleged conduct would represent a breach of court orders – Where the mother said she had a reasonable excuse –Where the mother believes on reasonable grounds that the father will cause the children to be exposed to pornography and inappropriate or explicit material – Where the mother reported her concerns to police – Where the mother gave evidence that the police advised her to suspend the father’s time with the children – Where it was found that the mother contravened the orders as alleged in each of the six allegations – Where the mother established a reasonable excuse for those contraventions.

Family Law Act 1975 (Cth) SS 70NAC, 70EA

APPLICANT: Mr Spargo

RESPONDENT: Ms Spargo

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 7008 of 2011

DATE DELIVERED: 18 November 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 3 October 2014 and 7 November 2014

REPRESENTATION

APPLICANT FATHER IN PERSON:

COUNSEL FOR THE RESPONDENT: Ms Hamilton

SOLICITOR FOR THE RESPONDENT: Mahony Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Power

Orders

1. The Court found that the mother contravened the orders of 13 November 2013 by the conduct set out in six remaining allegations arising out of the father’s Contravention Application filed on 11 August 2014 but that she had a reasonable excuse for doing so.

2. That the proceedings be restored on a date convenient to the Court and the parties in relation to any consequential orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Spargo v Spargo 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 SYDNEY

FILE NUMBER:  SYC 7008 of 2011

Mr Spargo

Applicant

And

Ms Spargo

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are contravention proceedings in relation to parenting orders for three children, H who was born in 2002; X who was born in 2004; and C who was born in 2008.  The father seeks that the mother be dealt with for breaches of those orders.   

Applications

1. The father’s Contravention Application was filed on 11 August 2014.

Written Evidence

1. The father relied on:

   ·Father’s affidavit sworn 7 August 2014 and filed 11 August 2014

2. The mother relied on:

   ·Mother’s affidavit sworn 10 July 2014 and filed 18 July 2014

   ·Mother’s affidavit sworn and filed 3 October 2014

The Hearing

1. The hearing as to whether there was a breach of orders without reasonable excuse was conducted on 7 November 2014.  There was insufficient time to deliver judgment and make findings on that day and judgment was reserved.

Short History

1. The father was born in 1967 and is currently 47 years of age.  The mother was born in 1972 and is currently 42 years of age.  The parties met in March 2000 and married in 2001.  They separated in 2010 and were divorced on 20 September 2012.

2. On 22 November 2013, following a defended hearing the following orders were made:

   1.All previous orders relating to [H] born … 2002, [X] born … 2004, and [C] born … 2008, are hereby discharged.

   2.Except as otherwise provided in these orders, the mother shall have sole parental responsibility for decisions about long-term issues including the children’s education and any elective medical or dental procedure or proposed treatment.

   3.Subject to her discretion as to the timing and manner of doing so, the mother shall:

   i.Advise the father of any significant decisions she proposes to make;

   ii.Consider any views conveyed to her in writing in a courteous and timely manner by the father;

   iii.Advise the father of the decision she has made, and provide him with all relevant information relation to the decision about education, including the name and location of a school or other educational facility, and in case of a decision about any significant elective medical or dental procedure or proposed treatment, the name and contact details of the medical or dental professional proposing the treatment; and

   iv.Give such authorities as may be necessary for third parties to provide information to the father as referred to in this order.

   4.Notwithstanding order 2, the mother shall do nothing to prevent the father from:

   i.Obtaining information from a child’s school about his or her progress and development, including but not limited to copies of school reports and other information ordinarily provided to parents;

   ii.Discussing proposed elective medical or dental procedure with the relevant treating professional; and

   iii.Visiting a child in hospital.

   5.Notwithstanding order 2, the consent of both parties shall be required on any application for passports for the children or any of them, provided that the father shall not unreasonably withhold such consent.

   6.The mother shall retain the children’s passports.

   7.The mother is permitted to remove any or all of the children from the Commonwealth of Australia. However , unless the parents otherwise agree in writing, or a Court otherwise orders, such travel must not cause the children or any of them to be outside of the Commonwealth of Australia for more than 10 weeks at any one time.

   8.In the event that the mother proposes overseas travel for the children or any of them, the mother shall, as soon as is practicable prior to the intended date of departure from Australia, provide to the father in writing:

   i.An itinerary, including all flight departure and arrival dates and times, and details of all places at which it is intended that the children or any of them will stay while outside Australia; and

   ii.Details as to how the children may be contacted by way of telephone, text message or email while outside Australia.

   9.That [H] and [X] spend time with the father as follows:

   i.Alternate weekends during school term:

   a.on the first weekend following the making of these orders and on each alternate weekend thereafter, commencing from 9am until 5pm Saturday;

   b.on the third weekend following the making of these orders and on each alternate weekend thereafter, from 9am Saturday until 5pm Sunday;

   c.the arrangements pursuant to a. and b. will recommence at the start of each new school term.

   ii.During the December/January school holidays from 9am on 27 December to 9am on 30 December in each year; and

   iii.In term school holidays from the first Saturday at 9am to 9am on the following Tuesday.

   10.For the purposes of changeover, at the commencement of the father’s time with the children, the mother will deliver the children to the Family Relationship Centre at [B] (“the Contact Centre) or such other centre as nominated by the mother from time to time and the father shall deliver the children to the Contact Centre at the conclusion of his time with the children.

   11.That [C] spend time with the father, unless the parents otherwise agree, supervised at the Contact Centre, as follows:

   i.During the December/January school holidays from 9am until 11am on 27 December in each year; and

   ii.On the first Saturday of each month when [H] and [X] are spending time with the father in accordance with order 9 i, from 3pm until 5pm;

   12.For the purposes of orders 10 and 11 each party must:

   i.Contact the Contact Centre within seven (7) days to arrange an appointment for assessment for suitability for [C]to spend supervised time with the father and for the purpose of changeovers to occur for [H] and [X]

   ii.Attend the assessment;

   iii.Comply with any appointment made by the Contact Centre;

   iv.Comply with all reasonable rules and requests or directions of the staff of the Contact Centre; and

   v.The parties shall equally share the fees nominated by the Contact Centre for the provision for its service.

   13.Subject to the advice and agreement of the contact centre, the father may attend for his visits with [C] with [H], [X] and his partner, Ms [U].

   14.The parents shall co-operate with each other and with the contact centre to arrange, if possible, for the times [C] spends there with the father to be co-ordinated with changeovers for [H] and [X].

   15.In the event that either of the parties is unable to facilitate the father spending time with the children or any of them in accordance with these orders, that parent shall provide written notice to the other at the earliest opportunity and shall be responsible for the cost, if any, of the contact centre for that visit.

   16.The mother shall be under no obligation to provided make-up time for any periods when the father is unable to take the opportunity to spend time with the children, or any of them, pursuant to these orders, but may do so at her discretion.

   17.The mother shall facilitate the father and children freely to corresponding with each other via email, Instagram, KIK, Facebook and other current forms of social media as well as future forms of social media.

   18.The father shall maintain a fully-paid mobile telephone plan and a mobile telephone or telephones for the purposes of the children communicating with him, and the mother shall encourage and shall do nothing to prevent the children from communicating with the father at any reasonable time by telephone.

   19.If a child suffers illness or injury requiring hospital admission, the parent having care of the child at the time shall:

   i.As soon as is reasonably practicable, advise the other parent and provide all relevant information including the location of the hospital and a telephone number; and

   ii.Provide the other parent’s contact details to the hospital.

   20.Neither parent shall, in the presence or hearing of the children or any of them, make any derogatory, critical or insulting comments to or about the other parent or a member of the other parent’s household.

   21.Neither parent shall discuss these proceedings in the presence or hearing of the children or any of them, or permit the children or any of them to read any documents relating to the proceedings.

   22.Neither parent shall require the children or any of them to discuss events or conversations taking place in the household of the other parent.

   23.Unless they otherwise agree in writing, neither of the parents shall be present at any venue where the children are attending for training or a sporting event at a time when the children are in the care of the other parent pursuant to these orders.

   24.The father is at liberty to provide a copy of these orders and copies of the reports of the court-appointed expert Dr [L] to any appropriately qualified professional he engages for the purpose of personal counselling and/or development of his parenting insights and skills.

   25.For the purpose of these orders, communication in writing shall include emails and telephone text messages, and the parents shall conduct those communications in a courteous and business-like manner.

   26.Each parent shall keep the other advised of his/her contact telephone number and email addresses.

   27.The mother shall give the father not less than 21 days notice in writing of an intention to move from the suburb in which she presently lives.

   28.The Court noted that the father intends to meet the following expenses for the children:

   i.All school fees for [H], [X] and [C] to attend a Catholic High School, such as … or … until each child completes year 12;

   ii.All school fees for [H], [X] and [C] to attend a Catholic Primary School, such as …; and

   iii.Sporting registrations and sporting equipment for the children to play their chosen sports.

   29.Leave is granted to the parties to apply within 28 days, on giving at least seven (7) days’ notice to the Court and each other in relation to the wording of these orders.

   30.Pursuant to s 62B and s 65DA(2) 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Contravention Applications- Parenting

1. Division 13A of Part VII of the Family Law Act1975 (Cth) (“the Act”) deals with the powers of the Court to make orders to enforce compliance with orders under the Act affecting children. Thus the focus of the Division is to compel compliance with Court orders. The Court has a range of options from requiring a party to attending a parenting course to imprisonment. Although not the primary aim of contravention proceedings, at all times the Court has power to change the substantive order.

2. The father’s application first came before the Court on 8 September 2014.  The father attended in person and the mother was represented.  The mother’s representative sought an adjournment on the basis that one of the subject children was home from school and the mother could make no childcare arrangements.  The father initially sought that the mother be arrested but the parties later agreed to an adjournment to 3 October 2014.

3. On 3 October 2014 the father attended in person and the mother was present and represented by Ms Hamilton of Counsel.  In the interim the father had given notice to the mother’s solicitor that he sought to proceed on only seven allegations.

4. A form of wording of the allegations was settled with the father and where necessary, leave was granted to amend the application for this purpose.  Unfortunately, the detail of the allegations set out in the father’s evidence did not find its way into the formal application.  No mischief was done by those amendments and it is my recollection that they were not opposed on behalf of the mother.

5. The allegations are recorded in a document that was prepared by the court and provided to each of the parties.

6. In short form it was alleged

   1.That the mother breached orders made on 22 November 2013 without reasonable excuse, by notifying the father on 29 May 2014 that she would not allow him to spend time with the child [X] on 31 May 2014.

   2.… in that on or before 30 May 2014 she communicated to the offices of Interrelate at [B] her refusal to allow the father to spend time with [H] and [X] on 31 May 2014.

   3.... in that on or before 13 June 2014 she communicated to officers of Interrelate at [B] her refusal to allow the father to spend time with the children [H] or [X] on 14 June 2014.

   4.... in that on or before 27 June 2014 she communicated to officers of Interrelate [B] her refusal to allow the father to spend time with the children [H] or [X] on 28 June 2014.

   5.... in that on or before 27 June 2014 she communicated to officers of Interrelate at [B] her refusal to allow the father to spend time with the child [C] on 13 July 2014.

   6.… in that on or before 27 June 2014 she communicated to the offices of Interrelate at [B] her refusal to allow the children [H] or [X] to spend time with the father on 19 July 2014.

   7.… in that on or before 1 August 2014 she informed the father that she refused to allow him to spend time with the children [H] or [X] on to August 2014.

7. The mother did not admit any of the allegations.

8. Concessions were made on the mother’s behalf in relation to service of the application and supporting affidavits and in relation to knowledge of the orders.

9. The mother’s position changed but initially, in relation to the first allegation, she did not make the concession that the alleged conduct would be a breach of the orders but did concede that the conduct occurred.  In relation to the second allegation she conceded that the conduct alleged would be a breach of the orders but did not concede that it had occurred.  In relation to the third, fourth, sixth and seventh allegations she made the same concessions.  In relation to the fifth allegation she made no concessions.

10. On 3 October 2014 the father put documents from Interrelate and the New South Wales police into evidence and those documents were accepted as bundles representing flagged entries relied on by the father and flagged entries relied on by the mother.

11. The father was cross-examined.

12. At the end of cross examination and the father conceded that his application in relation to allegation five could not succeed and he withdrew his application in that regard.

13. And the mother’s counsel identified two affidavits relied on by the mother including an affidavit filed that day.  It was not practicable for the father to read that material and make his objections on that day and by arrangement with the parties, the matter was adjourned to 7 November 2014.

14. The mother having recommenced substantive parenting proceedings seeking a variation to the orders made on 22 November 2013, the issue of those proceedings was discussed with the parties and on 3 October 2014 an Independent Children’s Lawyer (“ICL”) was appointed for the children.

15. On 7 November 2014 the parties were both present the mother was again represented by Ms Hamilton of Counsel.  Ms Power attended as ICL, having formerly represented the children in the substantive proceedings.  The parties had some discussions and I was told at the end of those discussions that they agreed that there were problems in the relationship between the father and the child H and that it would be appropriate for a private counsellor to be engaged in this regard.  A counsellor at Z was identified but final agreement had not been reached in relation to practical matters such as cost.  I was also told and the father confirmed that he wished to proceed with his contravention application.

16. Ms Power was excused on the basis that she would be notified if, following a finding as to there being a breach of the orders without reasonable excuse, the Court was asked to make orders affecting the children.  The hearing then resumed with objections to the mother’s affidavits and cross examination.  At the close of the mother’s case I heard submissions on behalf of each party and judgment was reserved.  Directions were made for the case to be restored to the list after the delivery of judgment for the purposes of any consequential orders and in relation to directions for the substantive proceedings being a restoration on a date convenient to the court and to the parties and the ICL.

17. It became apparent during the course of submissions that in relation to the remaining six allegations the mother now conceded both that the conduct alleged would represent a breach of court orders and that the conduct in each case occurred.  It also became apparent that the mother’s case in relation to each of those occasions was similar.

18. What constitutes a contravention of an order is exclusively defined in the Act:

    [s 70NAC]  s 70NAC Meaning of “contravened” an order

    70NAC  A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:

    (a)where the person is bound by the order — he or she has:

    (i)intentionally failed to comply with the order; or

    (ii)made no reasonable attempt to comply with the order; 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.

    …..

1. It was submitted on behalf of the mother that in each case her conduct was a deliberate action rather than a failed attempt to comply with the order.

2. In those circumstances a finding can be made that in relation to each allegation there was a breach of the court orders.  Pursuant to s 70EA, it falls to the mother to establish that she has a reasonable excuse.  These are civil proceedings and given the father’s intimation as to the consequential orders he would seek, the standard of proof is on the balance of probabilities[1].

   [1]  S 70NAF

3. The legislation does not provide an exclusive definition of the circumstances that might be found to constitute a reasonable excuse.  Examples are given[2] including that a person did not understand their obligations under the orders and the court considered that the conduct should be excused; or that the respondent believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and that the period during which because of the contravention the child did not spend time with the person in whose favour the order was made was no longer than was necessary to protect the health or safety of the person referred to.

   [2]  S 70 NAE

4. It is the mother’s evidence that the parties communicated in February 2014 about a party to which H was invited on a day when he was to be with the father.  H proposed to his father that he stay with the mother and have her take him to the party rather than attending for time with the father.  Ultimately on 14 February 2014 the father sent the mother a text message to the effect that he would have H pursuant to the orders but that he would deliver him to the party.  It was the mother’s evidence that when H was told this he became upset and shouted.  The mother observed H ring the father and become further upset.  She says that H said to her “Dad told me that if I don’t come to his house tomorrow then he never wants to see me again and I am never welcome in his house again”.  The mother deposed that H said to her something like “I’m fine I don’t care I hate him he is no longer my dad I never want to see him again”.  The mother deposed that on 8 April 2014 H received a text message from the father to the effect that the father expected to see H at a football game the following Saturday and that he would try and attend at an earlier training session.  It is the mother’s evidence that H said to her: “I want to reply to dad and tell him to never call, text or come near me again”.  The mother says she told H not to do that.  On 9 April 2014 H sent his father a message via Facebook to the effect:

   Hi Dad it’s me [H] just wanted to let you know that I will not be seeing you any more or speaking to you I assure you that this will be the last message you receive from me. I would also like to comment now that I am not seeing you, please do not watch my footy games and do not stay involved with my footy club!! I do not want you spoiling my footy season this year. Bye Bye

5. It is the mother’s evidence that on 10 April 2014 H sent his father a text message saying “Dad go Away and don’t get involved with my footy.  I stopped seeing you for a reason!”.

6. On 12 April 2014 the mother received a text message from the father “see you this afternoon at [Q] Park. Thanks” the mother gave evidence that Q Park was the venue where H was playing football that afternoon.

7. The mother told H about that message and H rang the father and told him that he did not want the father attending his games.  The mother says that the father had the phone on speaker and kept saying that he could not hear H.

8. It is the mother’s evidence that since that time when she has been able to encourage H into the car, she has continued to take him to the Contact Centre but that he has refused to leave with the father.

9. It is the mother’s evidence that on 2 May 2014 she observed X’s iPhone.  She noticed a Gmail account on the phone, opened it up and saw emails from Playboy with what she described as explicit content.  She opened one email which had a colour photograph of a naked female with her legs widely spread and her genitalia clearly visible.  When she asked X about the phone she says he was upset and cried and that X told her that he had opened one email and that he was so disgusted he closed it straightaway.  She says he was hysterical, crying and saying that he was going to be sick.  He said that the site was on the browser when he received the phone.  The mother says that during that same conversation the boys told her that the father had shown them a video on his phone in 2013 that involved two naked girls ‘doing a poo into a cup’.  They told her that H only watched a bit of it and walked away but that X watched the full video with his father and that the father thought it was funny. 

10. On 3 May 2014 the mother sent a text message to a friend of hers, explaining what she had found on X’s phone and the friend suggested she spoke to the police.  The mother obtained the necessary passwords for X’s Gmail account, logged into it and proceeded to take screenshots of the Playboy emails before deleting them and the Gmail account.  On 6 May 2014 the mother contacted Ms V, a social worker at the local council Family Services but she was on holidays.  On 13 May 2014, when Ms V returned, the mother discussed the incident with her.  On 24 May 2014 the mother went into X’s Facebook account and reset the password so that X could no longer access it.  At the same time the mother noted that someone else had accessed X’s Facebook account on 18 May 2014 from a phone number she recognised as a number used by the father.  On 27 May 2014 the mother copied photographs from the phone onto a USB device and handed them to police officer EE at Z police station on 28 May 2014.  The mother reported her concerns to Z police on 28 May 2014.  On 29 May 2014 the mother received a call from Constable EE.  He said he could not access the device but he advised her to send an email to the father revoking the father’s time for Saturday, 31 May 2014.  It is the mother’s evidence that Constable EE dictated or outlined what she should include in the email including the police event number.  On 30 May 2014 the police requested that the mother bring the children to Z police station, which the mother did.  It is an agreed fact that when X was asked by the police about the Playboy account he said that he had created the account himself; that he did not need a credit card to do so; that he did that at his father’s home and that he had no assistance in accessing the email subscription with Playboy.  

11. It is the mother’s belief that the father established a Playboy email account for X.  The mother contends but cannot prove that it is not possible to secure such an account without using a credit card.  The mother alleges but cannot prove that the father paid for the relevant account.

12. It is submitted that the mother’s excuse is found in those circumstances.  It is the mother’s evidence that she was shocked to learn that the father had exposed the boys to the inappropriate video in 2013 and that he would facilitate X having access to a Playboy site.

13. The mother was asked but would not concede that the fact that she was shocked by those things suggested that she thought they were out of character for the father.  The mother did not concede that she had other than a genuine concern about the father’s conduct.

14. The mother notes that although she breached the orders in relation to those occasions when the father was to have unsupervised time with children, she initially ensured that H and X continued to attend at the contact centre on occasions when C had supervised time.  However she was not able to have H continue to attend at the centre.

15. It is the mother’s case that she has a reasonable excuse for breaching the orders on each of the occasions alleged because the police recommended that the time be suspended and asked her to communicate that to the father and because she believed and believes on reasonable grounds that the father will cause the children to be exposed to pornography and inappropriate or explicit material.

16. On balance it seems to me that the mother should be accepted as to her excuse in relation to X.  The interruption of the father’s time with X coincides with the appearance of inappropriate material and an inappropriate email connection on X’s phone.  The mother referred her concerns to the police and followed their advice.  That is important.  Provided they have not mislead the authorities, parents are entitled to take official advice of that nature.  The mother bought proceedings before the court to change the orders, albeit some two months later.  The mother explained that delay in terms of time to speak to her solicitor to arrange for the commencement of proceedings.

17. In relation to H, the mother asserts that she has done her best to have H attend at the supervised contact occasions.  She has given no probative evidence about the efforts she has made, beyond saying to H that he had to go.  If that was the extent of her efforts, they fall well short of her obligations implied by the court orders.  That said, the parties agree that there is a level of estrangement between H and his father.  There is uncontested evidence of a high level of conflict between H and his father dating back over some period.  Indeed, that conflict and the father’s contributions to that conflict were a feature of the proceedings at first instance.  In my view those circumstances provide a context to the mother’s efforts and in this instance she should be excused in relation to the breaches.

18. That is not to say that the Court could find that the father created a Playboy account for X.  The evidence is suggestive but the crucial link between the father and the need the mother asserts, for a credit card to open such an account is missing.  I was told something to the effect that a subpoena would have needed to go to a foreign entity to secure that information.  If so, that is not the mother’s fault.  Nor obviously, is it the fault of the father.

19. I find that the mother contravened the orders as alleged in each of the six remaining allegations but that she has a reasonable excuse for doing so.

I certify that the preceding forty five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 18 November 2014.

Associate: 

Date:  18 November 2014