STANLEY & MICHELL

[2010] FamCA 135

FAMILY COURT OF AUSTRALIA

STANLEY & MICHELL [2010] FamCA 135

FAMILY LAW – ORDERS – Contravention – Children

Family Law Act 1975 (Cth)

APPLICANT: Mr Stanley

RESPONDENT: Ms Michell

FILE NUMBER: MLC 836 of 2008

DATE DELIVERED: 25 February 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 20 January 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr De Vries

SOLICITOR FOR THE RESPONDENT: McBain Lawyers

Orders

THE COURT FINDS THAT

1. The wife breached paragraph 9 of the order made on 5 November 2008 without reasonable excuse.

IT IS ORDERED THAT

1. In respect of paragraph 1 hereof, the wife incur no sanction for such breach.

2. The husband's amended application filed on 17 November 2009 be otherwise dismissed.

IT IS ORDERED BY CONSENT THAT

1. Order 9 of the orders made 5 December 2008 be discharged.

2. The wife shall on the first working date after each of:

   a.      1 March every year;

   b.      1 July each year; and

   c.      1 November each year

   lodge at Australia Post a Registered Package addressed to the husband at … in the State of Victoria containing not less than three photographs of the children M born … May 1999 and J born …January 2002.

3. The photographs referred to in the previous paragraph hereof may be of either child alone or both children together provided that each child appears in at least one of the photographs, the photographs were taken in the preceding calendar month, the photographs each are of at least postcard size and are each of original photograph quality.

4. The husband shall notify the wife in writing not less than 14 days before any of the dates referred to in paragraph 5 hereof of any change to the address therein referred to.

IT IS NOTED that publication of this judgment under the pseudonym Stanley & Michell is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 836  of 2008

MR STANLEY

Applicant

And

MS MICHELL

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. On 5 December 2008 I made orders by consent ("the orders") finalising proceedings between the parties with regard to their children M, born in May 1999 and presently aged 10 years and J, born in January 2002 and presently aged 8 years ("the children").

2. The essence of the orders was to provide that the parties have equal shared parental responsibility of and for the children and that they live with the respondent wife.  Paragraph 4 of the orders provided:

   The husband have no regular contact time with the children for a period of 5 years or until the (sic) either child wants to renew their relationship with him, whichever is longer.  In the event the children or either of them wish to telephone the husband the wife shall facilitate this.

3. On 30 October 2009 the husband filed an application pursuant to the provisions of Part VII Division 13A of the Family Law Act 1975 (“the Act”) alleging that the wife had breached a number of provisions of the orders without reasonable excuse.  On 17 November 2009 the husband filed an amended application in similar terms.  That amended application is the subject of these reasons for judgement.  However, at the conclusion of the hearing the parties agreed to orders amending the orders.  I will refer to those amendments in due course.

THE HEARING

1. The hearing of the husband's application was conducted by the husband appearing in person and the wife represented by counsel.  Both parties had filed affidavits of their evidence in chief.  The husband had also sought to call a witness who had not sworn an affidavit.  However during the hearing he withdrew the two alleged contraventions to which that evidence would have been relevant.  His withdrawal of those allegations followed a discussion with me in which I indicated that he would have significant difficulties establishing a case on them.  He accepted my indication.

THE ALLEGED CONTRAVENTIONS

1. The balance of the father's amended application alleged that the mother had contravened relevant orders on three separate occasions.  I now turn to a consideration of the three remaining allegations of breach.

Contact with M

1. The first allegation asserted that the mother, without reasonable excuse, "did not ensure face-to-face contact with the child [M]."  As already stated, as part of the overall settlement contained in the orders the father agreed that he would have "no regular contact time with the children for a period of five years … ".

2. The parties agreed on the following in paragraph 6 of the orders:

   The wife shall provide the husband with the opportunity to say goodbye to both the children.  By consent this meeting will take place at GordonCare […] and for these purposes the parties shall do all that is necessary to book supervised time at GordonCare as soon as is practicable.  It is not considered enough to present the children, there must be face-to-face contact.

3. It is common ground that the husband had the required communication with the child J but not with M.  In his affidavit in support of his application the husband swore:

   I was told by staff at the centre that [M] was present but I did not see her.  Staff at the centre indicated that they could not force the wife to comply with the orders.

4. In response, the wife swore that there were initial difficulties in finalising an arrangement for the required communication between the husband and the children to take place.  However, such an arrangement was ultimately reached.  A further arrangement was made between the wife and the GordonCare case worker, for the children to meet with the worker several days prior to their meeting with the husband.  That earlier meeting took place, with the children meeting with the worker in the absence of the wife.  The wife swore that the worker informed her that while J was prepared to meet with the husband –

   … [M] had vehemently refused to meet with her father under any circumstances.  [The worker] informed me that as [M] had flatly refused to be in the same room as the Applicant, even if [the worker] were to be in attendance, she had therefore arranged with the Applicant for him to write a letter to [M].

5. The wife further swore that she presented both children to the worker at the centre as arranged.

   [J] spent approximately 20-30 minutes with the Applicant and upon returning to the reception area he informed both [M] and me that "we don't have to see Dad for 5 years".  I made no comment to this.

   [M] then went into a room with [the worker] where I understand that [the worker] read the letter from the Applicant to her.  At no time did I prevent [M] from having face-to-face contact with the Applicant.  [The worker] offered the opinion to me that it was not in [M’s] best interest for anyone to force her into a room with the Applicant and therefore as it had been arranged in advance for the Applicant to write a letter this was the procedure that was followed under advice from [M’s] own case worker.

6. The wife annexed a letter from the Assistant Coordinator of the centre to the wife dated 18 November 2009 confirming the details of the communication required by the relevant order.  The letter noted that J had spent time with her father at the centre on 21 January 2009.  With regard to M, the letter recorded the following:

   ·    [M] also attended at the Service on the 21/1/2009.  [M] was given the option to go through to see the father; however she refused to do so.  As prearranged with a father, the father provided a letter to [M] to "explain the situation" due to the possibility that she would refuse to see him at the visit.  [M] was provided with the letter from the father on the day of the 21/1/2009 via [the worker].

   ·    The mother has advised the Service that [M] kept the letter from the father that was given to her on 21/1/2009.

7. The husband's cross examination of the wife did not result in the wife changing her evidence in any way.  On the contrary, the wife's oral evidence corroborated the contents of her affidavit quoted above.  Further, while the letter from the Service quoted above cannot be relied upon as proof of the truth of its contents, it does corroborate the wife's state of mind and is consistent with all the facts.

8. The husband submitted that the wife failed in her duty to ensure that M spent time with her father as required by the order.  However, paragraph 15 of the orders created a significant difficulty for the wife in that regard.  It is in the following terms:

   The wife is restrained by Injunction from explaining to the children the contents, meaning, effects and consequences of paragraph 4.

   The whole purpose of the children meeting with their father at the Service in accordance with paragraph 6 was for the father to say goodbye to the children as a result of paragraph 4 of the orders.  In my view, it would have been next to impossible for the wife to encourage the children to spend time with the father for the purpose of saying goodbye without breaching the injunction contained in paragraphs 15.

9. I am persuaded that the husband has not established to the requisite standard that the wife has breached the order as alleged.  Prior to the arrangement for the children to meet with their father, the wife took them to the Service so that the forthcoming process could be explained to them.  Quite properly, the wife did not remain with the children while the explanation was being given.  She was entitled to believe, as she did, that everything possible had been done to enable compliance with the order and that M was totally resistant to meeting with her father in any circumstance.

10. Further, even if the wife had breached the order, she had a reasonable excuse to do so. Section 70NAE of the Family Law Act 1975 ("the Act") defines the circumstances in which a respondent to an application such as the present one may be found to have a reasonable excuse for contravening the order. 

    Subsection (5) is in the following terms:

    A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:

    (a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and

    (b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

11. In my view, the wife had the belief "on reasonable grounds" as referred to in the subsection and M’s failure to spend time with the husband as required by the order "was necessary" to protect her psychological and emotional health.

12. Accordingly, the husband's allegation that the wife has breached paragraph 6 of the order is dismissed.

Provision of photographs

1. Paragraph 9 of the orders provides as follows:

   The wife is to provide updated photos of the children, to the husband, at least every 6 months.  This shall be done through [Mr F].

2. It is common ground that the wife was required to provide the photographs in June and December of each calendar year.  It is also common ground that the wife did not provide the requisite photographs in June 2009.  She actually provided them in November 2009 and then only after the husband issued his original contravention application alleging a breach of that and other paragraphs of the orders.

3. In her affidavit of evidence in chief, the wife swore:

   The Applicant alleges that I failed to send a photograph of the children on or before June 5^th 2009.  I say that due to consuming health issues at the time, coupled with ongoing harassment from the Applicant, which precipitated my needing to take further court action to amend and vary the intervention order made against the Applicant for my protection, I unintentionally overlooked sending the mid-year photograph via [Mr F] as stipulated in the Orders.  I sincerely apologise to the Court for this oversight.  Immediately that (sic) this oversight was brought to my attention an interim full-colour photograph printed via computer was delivered to the Applicant's mailbox by a family member on 10^th November, 09 and more photographs were sent via registered mail to his address on December 2^nd, 09.

4. Even on the wife's version of these facts, she has breached the order.  Her Counsel did not argue the contrary.  The question is whether, in breaching the order, she had a reasonable excuse.  I now turn to that issue.

5. The circumstances in which the wife might be held to have had a reasonable excuse for breaching this order are very similar to those referred to in the alleged breach discussed above in respect of paragraph 6 of the orders.  Counsel for the wife did not submit that the wife could be held to have had a reasonable excuse for breaching this order.  However, there are other relevant factors to which I now turn.

6. In my view, this breach comes within the provisions of Part VII, Division 13A, Subdivision E of the Act. It is clearly a "less serious contravention" and no order has been made previously by which a sanction has been imposed on the wife or proceedings have been adjourned to allow the parties to apply for a further parenting order. Section 70NEB of the Act sets out the powers of the Court which apply in those circumstances. In the first place, there is a discretion, not just as to what sanction I may apply but also as to whether I apply any sanction at all. I derive that proposition from the wording at the commencement of the section which provides:

   If this Subdivision applies, the court may do any or all of the following … .  (Emphasis added)

7. In this matter, there are compelling reasons for not opposing any sanction on the wife for her breach of the order without reasonable excuse.  Those reasons stem from the actions of the husband which I now detail.

8. The husband's conduct and attitude towards the wife are harassing, confrontational and psychologically and emotionally violent.  While not a unique example, that proposition may be illustrated by a letter written by the husband to the wife on 29 June 2009.  Initially, the husband acknowledged a letter from the wife dated 25 June 2009.  He commented: "I was touched to read it."  He then stated his disagreement with the entirety of her letter and said that she had not provided him with a Binding Child Support Agreement which she had allegedly agreed to do.  In particular, he alleged that a person whom I assume is a solicitor –

   … would not sign a statement of advice declaring that she has explained the pros and cons of this agreement to you … .

9. The husband continued:

   However, I am delighted!  You see, we had an agreement for Final Orders -I provided you with unrestricted full custody of the children as consideration, and you provided me with the written Binding Child Support Agreement set at zero as consideration.  This was noted and supported by Justice Mushin, who said he could not pass the Orders without consideration from both parties.

   I have provided you with my consideration, but since you cannot provide your consideration, our agreement for Final Orders is null and void (an agreement is not valid if consideration from either party is withheld).

   We naturally revert to at least a minimum child contact time to me, set at every other weekend and half the holidays, one night during the week, etc. and backdated to the time that we made the agreement.

   …

   This works out that at absolute minimum, I have full custody of the children and you have the children every other weekend and one night during the off week for the next 18 weeks, plus half the Spring school holidays.

10. In the first place, I do not accept the alleged ‘note and support’ by me at the time of making the orders.

11. While the letter quoted above was written a little after the wife was required to provide the photographs, it is typical of the husband's attitude towards the wife and her care of the children.  In particular, the husband purported to reject the orders which are the subject of these proceedings but nevertheless seeks to enforce those parts of the orders which suit him.  The same comment may be made with regard to the allegation of breach discussed above and the further allegation discussed below.  The circumstances of the alleged breach below also attest to the husband's attitude in this matter.

12. As I have noted above, having found that the wife has breached the relevant paragraph of the orders without reasonable excuse, I am not required to impose a sanction or penalty.  The question of such imposition is a matter within my discretion in the individual circumstances of this matter.  In my view, the circumstances are such that despite the wife's breach without reasonable excuse, the husband's application in this regard should be dismissed without any sanction.  I have reached that view on the basis of the husband's overall approach to this matter, particularly as demonstrated by his letter quoted above, and the inclusion of an apparent rejection of the orders in circumstances in which he seeks to rely on them where it suits him.

The wife's application for orders

1. Paragraph 13 of the orders is in the following terms:

   The wife consents to constrain herself by Injunction from making any further application to the court in respect of the children unless and until the husband makes any application in relation to the children.

2. The third breach alleged by the husband against the wife is that the wife made application to the court in respect of an Airport Watch List order concerning the children, when the husband had not made any such application.  He seeks that the wife be sanctioned for this conduct.  In support of his contention, the husbands swears as follows:

   In contravention to paragraph 13 of Final Orders, directly against an Injunction by consent to refrain from such action, the wife has made application to the Court in respect to the children, which was heard on 11 August 2009 before Magistrate Turner (sic).  She was not sanctioned by Magistrate Turner, who made the Order the wife sought, and dismissed all other issues to be resolved outside the Court between the parties.  Despite the husband's reasonable attempts to resolve the other outstanding issues, the wife has refused to cooperate.  She is making a mockery of the Court system.

3. Paragraph 1 of the orders provided that "all previous contact orders be and are hereby dismissed."  The wife swore that she had at the time understood that to include an Airport Watch List order previously made.  She was in error in that understanding which she claims, and I accept, was on the basis of advice that she had received from her solicitor. She was only later advised that the dismissal referred to at the beginning of the paragraph did not include the Watch List order and that if she wanted it discharged, she would need to make a separate application.  The wife swore:

   Upon also discovering this fact the Applicant then continued to use this oversight in his ongoing coercion and harassment of me.  By example the Applicant wrote numerous coercive letters to me some of which were threatening by their implications, despite there being an intervention order in place prohibiting him from doing so.  In a letter dated 19^th June, 09 the applicant wrote "It appears that the listing of the children on the Airport Watch List curtails your freedom.  Naturally, I do not want to stop you from taking the children on a family holiday overseas, however, you need my consent to do so, now or at any time until [J] reaches 18."

4. In his later affidavit the husband swore:

   In respect to paragraph 13 of the Final Orders, I say that it was a precondition for the wife to make an application, that I make an application prior to her. I have made no prior application and therefore the wife is in breach of both the Order and the Injunction. I further say that the wife would need a discharge of the Injunction to proceed with her application and there has been no certificate under section 60i (sic) of the Family Law Act 1975 prior to the wife's application.

1. During the hearing of this application, the husband accepted that he had agreed at the time of the wife's application that the Watch List order should be discharged.  He did not oppose the wife's application before Federal Magistrate Turner.  However, he has been steadfast in his assertion that the wife, by applying as she did without prior application of the husband, breached the order.

2. Counsel for the wife submitted that paragraph 13 of the orders was void as being contrary to public policy.  It was submitted that an order preventing a person from making application to the court on such a precondition denied that person the fundamental right of access to justice.

3. Section 118 of the Act provides a power to the Court to restrain a potential litigant from making application under the Act in certain circumstances. However, such restraint is to be imposed in circumstances where the application cannot be made save with the leave of the court rather than absolutely.

4. In light of the above discussion, in my view there is a strong argument for the proposition that paragraph 13 of the orders is contrary to public policy.  If that is correct, it would appear that it should be discharged.  However no application is before me seeking such discharge and it may be a matter for the parties at some later time.

5. However, in my view the husband's application alleging a breach of paragraph 13 of the orders constitutes an abuse of process of the Court.  The husband did not disagree with the wife making the application at the time that it came on before Federal Magistrate Turner for determination.  In those circumstances, it would be absurd for the wife to be sanctioned for a breach of the order.

CONCLUSION

1. I find that the husband's application alleging that the wife has breached paragraphs 6 and 13 of the order made on 5 December 2008 should be dismissed. 

2. I further find that the wife has breached paragraph 9 of the said order without reasonable excuse.  In respect of that breach, I find that the application be dismissed without any sanction against the wife.

3. During the hearing, the parties handed me minutes of proposed orders by consent appropriately varying the orders. I will make those orders as requested.

I certify that the preceding forty eight (48) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  26 February 2010