TVT & TLM
[2006] FMCAfam 20
•24 January 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TVT & TLM | [2006] FMCAfam 20 |
| FAMILY LAW – Contravention – reasonable steps to comply – children’s order – physical contact – whether mother had prepared child to hand-overs – mother refused to part with child – mother refused to use contact centre – extent of obligation to ensure order carried out. FAMILY LAW – Contravention – reasonable excuse – children’s order – physical contact – Contact parent late for pick-up – obligations of residence parent if contact parent late generally – where contact parent travelling from Perth to Brisbane – ongoing obligation to comply with order in the circumstances. FAMILY LAW – Contravention – reasonable steps to comply – counselling order – arrangements made for report to be obtained rather than counselling – failure to involve contact parent in process. |
| Evidence Act 1995, ss.136, 140 Family Law Act 1975, ss.70nc, 70ne, 70nea, 102a |
| D & C [2005] FamCA 1046 Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell [2000] FamCA 313; (2000) FLC ¶93-024 Fooks & Clark [2004] FamCA 212 |
| Applicant: | TVT |
| Respondent: | TLM |
| File Number: | (P)BRM4108/2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 12 October 2005 |
| Date of Last Submission: | 12 October 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 24 January 2006 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | Ms Miller |
| Solicitors for the Respondent: | Fitz-Walter Lawyers |
ORDERS
That on the court making the following findings:
(a)That from 2 July 2004 to March 2005 the mother, without reasonable excuse, contravened Orders 2 and 4(a) of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to encourage the child’s relationship with the father during telephone contact.
(b)That on 9 and 10 July 2004 the mother, without reasonable excuse, contravened Orders 4(c) of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to make the child available at 9am on 9 July 2004, terminating contact early on 9 July 2004 and failing to make the child available for contact on 10 July 2004.
(c)That from 24 December to 26 December 2004 the mother, without reasonable excuse, contravened Order 4(e) of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to provide the child for contact in accordance with the orders.
(d)That the mother, without reasonable excuse, contravened Orders 5 of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to ensure that the child obtained counselling prior to the first contact visits in Order 4(c) and 4(e).
(e)That on 19 June 2005 the mother, without reasonable excuse, contravened Order 4(a) of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to provide telephone contact.
(f)That on 20 June 2004 the mother, without reasonable excuse, contravened Order 4(f) of the Consent Orders made on 17 June 2004 in the Southport Magistrates Court by failing to provide physical contact.
The application be adjourned to a date to be fixed for further hearing as to the appropriate consequential orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT |
(P)BRM4108/2005
| TVT |
Applicant
And
| TLM |
Respondent
REASONS FOR JUDGMENT
In this application the father of the child T born on 26 June 1997 alleges a number of contraventions by the mother of contact orders made on 2 July 2004.
The applicant father represented himself. A solicitor represented the respondent mother.
The contraventions alleged
The application, as originally drawn by the father, did not clearly identify the contraventions pursued. After some discussion following the commencement of the hearing, the specific contraventions alleged were able to be formulated and particularised. The respondent, through her solicitor, consented to amendments of the counts in the terms set out. The contravention allegations proceeded upon by the father were as follows.
First contravention alleged
The mother failed to facilitate or encourage the child’s contact with the father from 2 July 2004 until March 2005 pursuant to the consent orders 2 and 4(a).
The relevant parts of the orders provide:
2. That the Mother use her best endeavours to encourage the relationship between the Father and the child.
...
4. That the Father have contact with the child as follows:
(a)Telephone contact between the hours of 6.00pm and 6.30pm weekly. On Sundays and Fridays with the Father to initiate such telephone calls to the child via the Mother’s mobile telephone number.
The particulars of this allegation are set out in paragraphs 18 to 22 of the father’s affidavit sworn 29 March 2005 which are in the following terms:
18.Following the making of the consent orders telephone contact continued to deteriorate and has now ceased. T will not come to the phone and talk to me.
19.When I telephone [the child] during the telephone contact times the mother answers the phone. Often the mother will not acknowledge me on the telephone and will call out to [the child] ‘speak to him’, ‘its him’, ‘speak’ ‘tell him’ in an aggressive tone.
20.In response to the mother telling [the child] that I am on the telephone I can hear [the child] yelling ‘no’, ‘no you are not my dad’, ‘we don’t want to speak to him’ and ‘no means no’.
21.The only telephone contact that I have had with [the child] after April 2004 is when [the child] comes to the phone and says ‘you are not my dad’, ‘we don’t want you to come’. By the words ‘we don’t want you to come’ I understood this to mean that [the child] and the mother did not want me to go to Queensland for contact in July 2004.
22.Since November 2004 every time that I have called for contact with [the child] the mother has answered my calls and has told me that [the child] does not want to talk to me.
The mother denied this contravention.
Second contravention alleged
The second alleged contravention was that the mother failed to make the child available for contact on 9 and 10 July 2004 in accordance with order 4(c).
This contravention was particularised as follows:
a)failure to make the child available at 9am on 9 July 2004;
b)termination of contact early on 9 July 2004;
c)failure to leave the child alone with the father at contact on 9 July 2004;
d)failure to make the child available on 10 July 2004.
The relevant parts of the orders provide:
4. That the Father have contact with the child as follows:
...
(c)On the 9th and 10th of July 2004, during the Queensland July school holidays, between the hours of 9.00am and 5.00pm each day and thereafter on the 11th and 12th July 2004 from 9.00am on 11th July 2004 to 5.00pm 12th July 2004 (to include overnight contact). Such contact is to occur on the Gold Coast.
The mother denied this allegation.
Third contravention alleged
The third allegation was that the mother failed to make the child available for contact or encourage such contact over the Christmas period between 24 and 26 December 2004 contrary to order 4(e).
The relevant parts of the orders provide:
2. That the Mother use her best endeavours to encourage the relationship between the Father and the child.
...
4. That the Father have contact with the child as follows:
...
(e)During the December 2004 Queensland School holidays, commencing on 21st December 2004 until 30th December 2004 as follows:
(i) The first (1st) two (2) days on the Gold Coast (to include overnight contact) and thereafter in Western Australia for the balance of the holiday period.
(ii) The Father shall be responsible for the child’s return airfares to and from Queensland to Western Australia and return.
The mother denied this allegation.
Fourth contravention alleged
The fourth allegation was that the mother failed to ensure that the child obtained counselling in accordance with order 5.
The relevant parts of the orders provide:
5. Prior to the contact commencing in paragraphs 4(c) and 4(e), the child shall attend counselling with Relationships Australia, or Centrecare, or such other counsellors as may be agreed between the parties as follows:
(a) Before the first (1st) visit in paragraph 4(c); and
(b) Before and during the contact visit in 4(e).
6. Both parties shall be equally responsible for the costs of the child’s counselling as referred to in paragraph 5 hereof.
The particulars were that no counselling took place.
The mother denies this allegation.
Fifth contravention alleged
The fifth allegation is that on 19 June 2005 between 4pm and 4:30pm Western Australian time (6pm and 6:30pm Queensland time) the mother failed to allow telephone contact with the child in breach of order 4(a).
Paragraph 4(a) of the orders is set out above at paragraph [5] of these reasons.
Sixth contravention alleged
The sixth allegation is that on 20 June 2005 at 9am at Labrador in the State of Queensland the mother failed to allow a contact visit in accordance with order 4(f).
Paragraph 4(f) of the orders provides:
4. That the Father have contact with the child as follows:
...
(f)On two (2) occasions each year thereafter for two (2) weekly intervals, each time subject to the Father providing the Mother with twenty-eight (28) days notice of his intention to have the Queensland school holiday contact with the child at any given time. With one (1) such two (2) weekly interval to encompass the December/January Queensland school holiday period each year with alternating Christmas Days each year as between the parties, the Mother to have contact with the child on Christmas Day in 2005.
The particulars of the fifth and sixth contraventions were set out in the father’s affidavit of 21 June 2005. He deposed that on 19 June 2005 he rang the mother’s mobile phone but the phone was not answered. On 20 June 2005, he arrived at the mother’s house to collect the child but neither the mother nor the child was in attendance. Later that morning the father received a text message from the mother advising him to contact her solicitor.
The mother denied allegations five and six.
Material relied upon and other applications
The mother made no application to suspend or vary the contact orders until she provided a set of proposed draft orders on 12 October 2005 during these proceedings. As a result I granted the father leave to file an application to vary the contact orders in the terms he had proposed to the mother (as annexed to her affidavit) and the mother leave to file a response in terms of her draft orders. That application was adjourned.
The mother had applied to the court in May 2004 for a divorce and appeared on 3 August 2004. No other applications have been made (aside from the contravention applications).
At the hearing of the contraventions the father relied upon:
a)Contravention application filed 19 April 2005;
b)Affidavit of the father filed 19 April 2005;
c)Contravention application filed 21 June 2005;
d)Affidavit of the father filed 21 June 2005;
The mother relied upon her affidavit of 15 July 2005 supplemented by her oral evidence.
The law
The meaning of ‘contravened’ is defined in s.70nc of the Family Law Act 1975 as follows:
70nc Meaning of contravened an order. 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.
The applicant bears the onus of proving the contravention on the balance of probabilities: see generally Reilly and Reilly (1995) FLC ¶92-616. Section 140 of the Evidence Act 1995, which refers to the standard of proof, provides for the court to take into account the nature of the proceedings in determining whether it is satisfied to the requisite standard. Subsection (2) says:
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
One must be mindful of the seriousness of contraventions of children’s orders, and the penalties that may ultimately be imposed.
The meaning of ‘no reasonable attempt’
In many contravention cases involving contact orders, consideration must be given to what is necessary to make a ‘reasonable attempt to comply with the order.’ The extent of the obligation has been discussed in a number of cases. The starting point is that a contact order is not a mere declaration – it is implicit in the order that reasonable steps must be taken to ensure that the contact as ordered takes place: Stavros and Stavros (1984) FLC ¶91-562. The absence of detailed orders providing for the mechanics of hand-over does not make the orders inoperative or incapable of enforcement.
Whether steps taken are a ‘reasonable attempt to comply’ with a children’s contact order will ultimately depend upon the facts and circumstances of each case. However, it is accepted that the residence parent has a duty to ensure that the child not only attends, but does so in a positive manner. The way that the obligation has been expressed in different cases throws further light on the extent of the obligation:
a)The residence parent must actively encourage the chid to attend contact as ordered.
b)‘The courts have been careful to consider whether in reality, not just on the face of things, the [residence] person has taken reasonable steps to deliver the child for [contact]’: see O'Brien&O’Brien (1993) FLC ¶92-396 at [13].
c)‘It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate, and to argue that if the child refuses, all her obligations are satisfied by merely standing, as I put it, with folded arms behind the child, doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep and, indeed, this situation is directly comparable to it’: Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [25].
d)Similarly, a mere request that the child telephone, or come to the telephone is insufficient.
e)Once an order for contact has been made, it is ‘no longer a case of saying to the child: you go if you want to, if you wish to go you go, or you make up your own mind’: see O'Brien&O’Brien (1993) FLC ¶92-396 at [11].
f)A residence parent ought to make ‘the child understand that it was the [residence parent’s] attitude that the child had to go on [contact]’: see O'Brien&O’Brien (1993) FLC ¶92-396 at [8].
g)The residence parent is expected to bring to bear all the authority that they have over a child, just as they would to ensure the child attends school: See P & P [2002] FMCAfam 315 (Unrep.) at [14].
h)It must be noted that ‘an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or in a manner which of its own suggests that this is your obligation under the order but mummy really does not mind if you say no.’ Such an invitation is insufficient: see Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [26].
i)‘[I]t is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation’: see Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [6].
j)‘It is not a sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter’: Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [6].
k)The residence parent is ‘not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance’: Stevenson v Hughes (1993) FLC ¶92-363 ([1993] FamCA unrep527) at [8].
If satisfied that the mother contravened an order, either intentionally or by making no reasonable attempt to comply, the court must then consider whether the mother has a reasonable excuse for the contravention.
The meaning of ‘reasonable excuse’ is not limited (see Northern Territory of Australia v GPAO [1999] HCA 8 at [14]), but includes circumstances set out in s.70ne of the Act. Relevantly these include:
70ne Meaning of reasonable excuse for contravening an order
...
(3) A person (the respondent) is taken to have had a reasonable excuse for contravening a contact order in a way that resulted in a person and a child being deprived of contact they were supposed to have had under the order if:
(a) the mother believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of a person (including the mother or the child); and
(b) the deprivation of contact was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
The contact referred to in s.70ne is the contact at issue under a particular order. Curiously, s.70ne(3)(b) refers to a deprivation of contact that is ‘not longer than was necessary’, rather than ‘no more than is necessary.’ The result is that it does not appear to be strictly necessary for a person relying upon a defence under this section to consider alternative contact arrangements that may be provided or proposed during the deprivation of contact as ordered. However, the failure to offer alternative forms of contact arrangements that would obviate the risk may impact upon findings as to the genuineness of the belief relied upon as a defence.
The onus of proof with respect to a ‘reasonable excuse’ is also ‘proof on the balance of probabilities’, see s.70nea. Section 140 of the Evidence Act 1995 similarly applies, however the fact that this is a defence is a relevant consideration under s.140(2). In order to determine whether a reasonable excuse has been shown an objective test should be applied: see Gaunt and Smith (1978) FLC ¶90–468 and Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell [2000] FamCA 313at [90].
The starting point in considering a ‘reasonable excuse’ is to recognise that disagreement with the order of the court is not a ‘reasonable excuse’. Gaunt and Smith (1978) FLC ¶90–468 at 77,398, the Full Court (Evatt CJ Emery SJ and Hogan J) said:
The essential question is this: can a party who does not agree with a court's decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child's welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court's order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.
… A party's subjective view of the rights and wrongs of a decision cannot be relied on as "just cause or excuse" or "reasonable cause". Evidence of changed circumstances or of matters not considered when the order was made might be.
As to the defence available under s.70ne (in similar words to that available under s.112AC at that time) Smithers J, in O'Brien&O’Brien (1993) FLC ¶92-396, said:
[22] … it seems to me that the passing of s 112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of the child, is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether in the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out of the access order might not be in the best interests of the child. The question is whether it is necessary to protect the health or safety of a person, including the child.
Of course there may be cases where a child is so resistant and distressed that a refusal of contact will be excused: Fooks & Clark [2004] FamCA 212 is one example. However such cases are rare in the absence of precipitating conduct by the contact parent, or otherwise ‘changed circumstances’. The circumstances often (not always) demonstrate that the residence parent has not taken appropriate steps to ensure that the child attends on contact: an example of where these issues are considered is W & N [2003] FMCAfam 240.
Evidence and findings
The parties were not agreed as to the date of separation. The mother says they separated in 1999, and then lived together for short periods until finally separating in 2003. The mother says that in 2003 she and the child moved from the Gold Coast to Perth in March of that year, and soon after the Father ended the relationship. The father says the move was in February and separation occurred on 30 May 2003. On the application by the mother for the consent orders the separation date was set out as ‘December 2003’, and altered to 12 June 2003 by the Father. The mother admitted in cross-examination that she swore that separation occurred in May 2003 in her divorce application. I accept the father’s evidence on the dates.
The mother also set out, in her affidavit, that she did not receive the proceeds of the sale of the house and received no property settlement She says she receives minimal child support. She also deposed that she now struggles financially. I do not see that these matters, even if true, are relevant to the issues to be determined on this contravention.
First and second contraventions
The Mother says that after separation weekly telephone contact occurred during 2003. The father recounts liberal and quality telephone contact at this time. He recounts that he would talk to her about ‘school, friends, toys, books’ and that he often read her a bedtime story.
The mother alleges that the child became uncomfortable as she says that the Father was making ‘nasty remarks’ about her to the child. At this time she says she was encouraging the child to speak on the telephone, but that the child became withdrawn. The father denies the mother’s allegations in this regard.
The father agrees that telephone contact become more difficult as time passed, but denied making remarks to the child that were inappropriate. The father recounted that the mother started referring to him as ‘Him’ when calling the child to the telephone, and that the child started to make comments such as ‘We don’t want to speak to him’. During cross-examination the mother explained the child’s non-contact with her paternal grandmother on the basis that the paternal grandmother had once described the mother as an alcoholic in front of the child. She also said that she thought that the father leaving her had been interpreted by the child as the father leaving them both.
By early 2004 the mother had sought out advice with respect to contact orders, and initiated negotiations for orders. The mother changed the child’s surname on the school roll by removing the father’s surname from the child’s hyphenated name, saying that it was the child who initiated this change.
By May 2004 the parties had agreed on consent orders. The mother e-mailed the father on 28 June 2004 demanding that he pay Centrecare fees for counselling at $90 per session (in advance) and telling him that ‘Under NO circumstances will you come anywhere near our home’. No name or address was provided for the Centrecare office or counsellor, nor does the mother say one was ever supplied.
Following these events, the contact orders were made on 2 July 2004 by consent. Both parties made affidavits stating that they had independent legal advice on their rights under the Family Law Act and the effect and consequences of orders being made in the terms agreed. The father’s part of the consent orders application form was signed in Perth. The mother’s lawyer failed to state where she signed; however the orders were made in Southport on the application of the Mother.
On 6 July 2004 the mother attended upon Centrecare for a consultation (paying only $20). She says in her affidavit that she could not continue with Centrecare as the father would not pay half the fees, and so placed her name on the Lifeline waiting list. In evidence she said that she didn’t go back to Centrecare as they told her that they would not prepare reports, and suggested Lifeline. She also said that Centrecare advised her about supervised hand overs in July 2004. The Mother said in evidence that the reason she did not return to Centrecare was that they did not prepare reports. I find that the real reason for not using Centrecare was that they would not prepare a report.
The first contact scheduled under the orders was scheduled for 9 July 2004. It is incongruous that the mother would enter into consent orders, with legal advice as to the effect and obligations under those orders, yet at the same time be of the view that the child should not participate in contact as ordered. That she was trying to obtain a report, presumably to restrict contact from that set out in the orders, shows that she did not intend to fulfil the requirements of the orders, from the outset.
The father says that on 9 July 2004 the child and the mother did not leave their car when they first met at the car park for hand-over. The father says that the mother repeatedly asked the child ‘do you want to go with him’ and ‘do you want me to stay’. The child was reluctant to go and the mother said that the child did not want to have contact and left. The father says he telephoned the mother and met with her again at which time she would only agree to contact in her presence. The father acquiesced to the mother remaining while he had time with the child at McDonalds, some shopping, and on the beach. The father recounts that the mother constantly interrupted asking if the child was all right and if she wanted her to stay, before terminating contact early at 3.00pm.
On 10 July 2004 the mother attended at the car park with the child who remained in her car and was visibly upset. The father says he sat in the car next to her for a while and that she appeared to seek her mother’s approval to even answer him. He says in his affidavit that he did not force contact that day, as he was concerned about the anxiety that may be caused to the child. He says that when he said he wouldn’t continue with contact that day or the next the child cried and gave him a cuddle.
The mother outlined in her affidavit that the father attended in Southport to see the child in December 2003 and wanted to have contact. When cross-examining the father, the mother’s solicitor stated that this was in error and that the allegations referred to the July 2004 contact period (this was later confirmed by the mother in evidence in chief). The mother refused contact unless she was present as she said the child was uncomfortable about leaving her, not having seen the father for a year. She says that an argument ensued with the father becoming angry with the child and telling the child that he was her adopted father and threatening not to see her again. As the child is clearly of native Papua New Guinean descent, and the parties are Caucasian, she must have been aware of her adoption well before this event.
The mother says that as a result of these events the child was shaking and crying uncontrollably and said she did not wish to see the father again. She says that since that time the child does not want to see or talk with the father, saying that he is ‘not my father’.
The mother had entered into consent orders shortly before the first incident where there was difficulty with the contact. It is incongruous that she would consent to the orders in circumstances where the child was as strongly opposed to contact as the mother suggests.
The father was cross-examined about these events and emphatically denied the allegations of inappropriate comments to the child. I prefer the evidence of the father on these matters.
I find that the events occurred as outlined by the father. The failure to make it clear to the child that the contact was going to occur, and to facilitate that contact shows that the mother was not intending the orders to be complied with and she created a situation where the father was left with little choice with respect to contact.
The mother did not prepare the child for contact or ensure that the child attended. She created an invidious situation for the father that was only likely to lead to a frustration of contact. She was aware of the availability of contact centres from Centrecare, but did not take up that option, despite being aware that an independent person would have then supervised hand-over, rather than using a car park.
I accept the father’s evidence with respect to telephone contact. I need not repeat the father’s affidavit evidence set out above.
With respect to the first and second contravention allegations I find that the mother has not complied with the orders and has made no reasonable attempt to comply with the orders. I am satisfied that she was aware of her obligations under the orders. I am not satisfied that she has any reasonable excuse for the contravention.
Third contravention
The father e-mailed the mother on 29 October 2004 to arrange for Christmas contact. He had arranged for hand-over at the Logan West Children's Contact Service. Included in the e-mail were the name and telephone number of the contact person at the Service, with a request that she be contacted for an interview prior to the hand-over. The mother did not respond. He then e-mailed on 8 November 2004 saying that he would collect from the mother’s flat. The mother responded on 11 November 2004 saying that pick-up would occur at the car park used unsuccessfully in June 2004. The father responded objecting to the car park and again suggesting the contact centre, providing the contact details for the worker at the centre and information from the Australian Children’s Contact Services Association. The mother was not moved by this further information.
As a result of the mother’s refusal to use a contact centre the Father sought to have the hand-over at the child’s Godmother’s home, however the mother did not agree with this suggestion. Eventually hand-over was to be at the mother’s home.
On 10 December 2004 the mother obtained a document from a psychologist at Lifeline headed ‘To Whom it May Concern’. The first paragraph sets out qualifications of the author. It goes on to state:
T has attended counselling for two sessions at our centre in relation to her feelings regarding proposed access with her father around Christmas.
T expressed to me and to the other counsellor she saw, Ms Marilyn Jackson that she did not want to have access with her father at present. She also suggested that she may feel differently in the future but was unwilling to say when.
It is my belief that T spoke her own mind and was not influenced by her mother. She spoke to me without her mother present. T has been very hurt by the brusque and to her hurtful way in which her father told her she was adopted. T also feels unsafe with her father because he talks to her in very negative terms about her mother and she cannot stop him doing this or explain to him how much it hurts her. She feels that even on the telephone her father is not respectful of her wishes and keeps saying things that are sad for her to hear even when she asks him to stop.
RECOMMENDATIONS
1. I recommend that access for T with her father be temporarily stopped for at least the next six months. I believe that the relationship between the father and daughter has completely broken down and that further negativity will occur unless T is given the break she wants.
2. I further recommend that any access in the future occur as supervised access so that Mr TVT be sensitised to what is appropriate to say to T.
3. Finally, I recommend that telephone access be limited to no more than once weekly and that when T says she does not want to talk further that Mr TVT respect this and refrain from ringing her back until the next designated access time.
4. T will receive individual and/or group counselling over the next six months in order to help her understand her feelings about her adoption and the separation of her adoptive parents.
CONCLUSIONS
T is a sensitive young girl and is unable to handle the strong negative feelings of Mr TVT. I believe she has been quite traumatised by his phone calls and by his revelations during the last access visit. She needs time to adjust because she is stressed she is even less willing than before to manage a separation from her mother and I do not believe there is anything to be gained by forcing this on her. I further believe that time will settle things down and that with a patient and sympathetic outlook there will more likely be a reconciliation and things will be easier down the track.
The mother, in evidence, said that she provided the counsellor with the father’s contact details. She also said that she had a session with the counsellor and child with respect to the child’s concerns about being adopted. If the mother is to be believed, the counsellor prepared this report recommending a drastic suspension of contact without any session with or information from the father, despite being provided with his details. The report does not recount whether the counsellor was aware of any of the history of the parties or the existing orders. Why the child would be interviewed twice by two professionals, after some sessions with a school counsellor, and presumably one attendance upon the Centrecare counsellor is difficult to understand: it is redolent of systems abuse.
The report does not outline exactly what the child told the counsellor or the circumstances of the observations. Clearly the counsellor is not using the child’s words when describing the father’s comments as ‘brusque’. To suggest that the appropriate course is to suspend contact and do nothing in the expectation that ‘things will be easier ‘down the track’ seems incredible on the limited information she has recounted and the lack of any assessment of the parents and their roles in the events. The report does not disclose any therapeutic relationship with the child. It provides no details of a therapeutic intervention plan for the six-month period – indeed the generalised suggestion of ‘group counselling’ for a seven year-old child is remarkable. If the mother’s case is to be accepted the report writer was in fact engaged in a therapeutic relationship with the child, which has been ongoing for around eight sessions. It is difficult to accept the mother’s evidence in this regard, given that:
a)she did not proceed to use Centrecare as originally set out in the orders as they would not provide a report;
b)the report from Lifeline is in the nature of an assessment report and refers to no prior therapeutic relationship with the child;
c)the father has never been involved in the process at Lifeline;
d)there appears to have been no therapeutic plan specifically developed, simply suggestions of more counselling and ‘group counselling’ for a child who was then only seven years old; and
e)The mother has refused to use a contact hand-over service.
I note that the report was based upon two interviews with the child. As a result it appears to be a report that is not admissible under s.102a of the Family Law Act, 1975 (the Act), which provides:
102a RESTRICTIONS ON EXAMINATION OF CHILDREN
(1) [Where child examined without leave of court, evidence inadmissible] Subject to this section, where a child is examined without the leave of the court, the evidence resulting from the examination which relates to the abuse of, or the risk of abuse of, the child is not admissible in proceedings under this Act.
(2) [Where examination is for purpose of proceedings] Where a person causes a child to be examined for the purpose of deciding:
(a) to bring proceedings under this Act involving an allegation that the child has been abused or is at risk of being abused; or
(b) to make an allegation in proceedings under this Act that the child has been abused or is at risk of being abused;
subsection (1) does not apply in relation to evidence resulting from the first examination which the person caused the child to undergo.
As the counsellor was not on affidavit, nor available to give evidence I did not allow her report into evidence as expert opinion. The quality of the report and the circumstances of its production are such that I could place no real weight on its conclusions. In the circumstances I do not need to consider granting leave to rely upon the report despite non-compliance with s.102a of the Act.
However, the very fact that the mother was given this advice is admissible in the context of assessing whether the mother had a reasonable excuse for contravening the orders. I therefore find that the report is admissible on this basis. It is appropriate, however, that under s.136 of the Evidence Act 1995 I limit the use that can be made of the document so that it is not in evidence as expert opinion.
A further undated handwritten note obtained on 20 June 2005 from the Manager of the Counselling Services of Lifeline was annexed to the mother’s affidavit. It simply stated:
Having reviewed the file I support the view of psychologist Jennifer Macintosh, coordinator of Child, Youth and Family Programs, Lifeline Gold Coast that contact with her father is traumatising the child and it is not advisable at this stage.
It is simply not admissible and has no evidentiary value, except to cast doubt upon the capacity of the manager of the service to appreciate the need for a detailed and objective assessment involving both parents before any professional could reasonably recommend a six month suspension of contact. I have no regard to this document as expert evidence.
The father attended at the mother’s home on 24 December 2005 for the contact hand-over. He and his family were hoping to have the child spend Christmas with them in Perth.
Whilst the father attended on 24, 25 and 26 December 2004 the child did not leave the house to have contact. He said that on 24 and 25 December he arrived in the morning and left mid-afternoon, having spent the day at the screen door talking to the child through the door. He said that on first arriving he knocked, the mother called out ‘yes’ and the child immediately started saying ‘no, no, no’. He stayed at the door talking to the child, although she mainly answered ‘no’ even if it was out of context. The mother said that the child ran away and then later talked to the father through the door.
The mother did not address what occurred on these three days of Christmas in her affidavit. In evidence she alleged that the father was bullying the child by shouting at her through the door, which he denied.
It was put to the father that on one of the occasions during the Christmas 2004 period when he attended for contact that the mother had told him to come in and take the child but that he sat on the stairs outside talking to the child through the door. He says that the door was locked and he wasn’t allowed in, save once to use the toilet. The mother says the door was unlocked.
The father brought Christmas presents with him, but says they were not accepted and he took them away. The father left them with friends of the mother on the Gold Coast. This is difficult to reconcile with the mother’s evidence that the door was open and he was free to leave the gifts at her home.
The mother in her evidence said that this occurred at Christmas time and the door was unlocked. It was also put to the father in cross-examination that the mother had said to him ‘Come and get her, take her for contact, she will be fine once you take her.’ In cross-examination she said that as she had unlocked the door ‘that means you are invited inside’.
It also became apparent during cross examination that during the 2004 Christmas period an incident occurred where at one stage the mother grabbed the child by the arm when taking her to the door saying to the father “What do you want me to do?” She also said to the child during these events that if the child did not go the father would put her in jail.
I find that the events occurred as described by the father. I do not accept that the mother, who has gone to great lengths to obtain a report to avoid contact, would then tell the father to take the child. There is no suggestion that the child’s bag was packed to travel, or any other usual preparation had been made that was consistent with the notion that the child should attend on contact.
Even if I were to accept the evidence of the mother, the arrangements in place at that time and the conduct of the mother in that event left the father with the choice of upsetting the child greatly by following through with the mother’s request or not having contact. He, on the mother’s version, clearly adopted the most appropriate course of conduct for the benefit of the child. It was for the mother to ensure that the child was aware that she was going on contact: it was not for the father to be placed in a position where he must “take her.” Even on the mother’s version I would nonetheless be satisfied that she did not take reasonable steps to attempt to comply with the order, but rather created a situation that effectively thwarted contact on that occasion.
Once satisfied that the order has been contravened, I must consider whether the mother has a reasonable excuse. Section 70ne of the Act requires consideration of whether ‘the mother believed on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of’ the child.
The terms of the counsellor’s report are relevant to the wife’s considerations, despite the poor quality of the report. Whilst the report has obvious limitations and deficiencies, the test is whether such a report created objectively reasonable grounds for the belief. The report is not a sham or a ruse. The reasonable person (even on an objective test) is not taken to be able to critically assess the quality of a psychologist’s report. The report warns of ‘further negativity’ if there is not a break from contact and that the child ‘is a sensitive young girl ... unable to handle the strong negative feelings of Mr Taylor.’ It goes on to say that she ‘has been quite traumatised by his phone calls’ and ‘needs time to adjust’ and that the counsellor does ‘not believe there is anything to be gained by forcing [contact] on her’.
I am concerned that whilst the report is not particularly clear as to exactly what concerns there are as to the child’s ‘health and safety’ it may be sufficient to found a reasonable excuse. However, my observations of the mother in the witness box, the conduct of the mother from the time that the orders were negotiated, her refusal to use a contact centre (or even suggest more limited contact through the centre), her failure to seek a variation of the orders (up to the day of the hearing of the contravention) and her apparent failure to actively engage in a counselling process as contemplated by the orders leads me to conclude that I am not satisfied that a reasonable excuse has been made out.
I find that with respect to the third contravention the mother has not complied with the orders and has made no reasonable attempt to comply with the orders. I am satisfied that she was aware of her obligations under the orders. I am not satisfied that she has any reasonable excuse for the contravention.
Fourth contravention
The mother denied the allegation that she failed to arrange counselling as ordered. The mother said that she did attend on Centrecare, but on discovering that the counsellors there would not write a report she did not wish to continue. She said that she was advised that perhaps Lifeline would be prepared to prepare a report for her, so she pursued counselling elsewhere. Clearly the purpose of the counselling as ordered was not for the preparation of a report but to assist the child of the parties.
The claim on the father to meet the counselling fees was not in a form that he could fulfil, as it failed to provide details of who to contact or to pay. As events unfolded, the mother sought and obtained the father’s consent to using Lifeline. However, as set out in paragraph [49] above, there is only limited evidence that the sessions were other than for the purpose of obtaining reports. The father was not involved or contacted with any of the details. There was nothing organised during the visit contemplated in order 5(b).
The mother also said that the child was then having counselling at school. The letter she annexed from the school counsellor sets out that family counselling would not be ‘given a priority’ by the Special Needs Committee, given her school guidance role. It is clear that the school psychologist did clearly identify her role as not being a family counsellor. Whilst the school counsellor did take the time to speak with the father this is not sufficient to fulfil the terms of the order.
The terms of order 5 clearly contemplate a therapeutic intervention for the child that involves the parents (or at least the father). There was an obligation upon the mother to make the initial arrangements as she has residence. She chose not to use Centrecare without disclosing the real reason (that they would not prepare reports). She did use Lifeline for an assessment and report. The school counsellor was never undertaking the role contemplated by order 5.
I therefore find that the mother is in breach of order 5, and has not made a reasonable attempt to comply with the order. There is no basis for a reasonable excuse to be considered as she set out to obtain a report to suspend contact, rather than obtaining support to facilitate contact.
Fifth and sixth contraventions
The fifth and sixth contravention allegations arise out of the contact arrangements for June 2005.
Contact was due to commence on 18 June 2005. The mother admitted that she had again declined to use a contact centre.
The mother says that she waited on 18 June 2005 but the father did not attend. The father telephoned the mother during the day to say that he had difficulties with his flights from Perth and could not arrive until 20 June 2005. The mother told that father, when he telephoned on 18 June 2005, that this ‘was not advisable’.
The father attempted to telephone the child on 19 June, in accordance with order 4(a) (set out above at paragraph [5]), as he had not yet arrived for physical contact. The mother did not answer the telephone, which was her mobile telephone.
The father attended on 20 June 2005 hoping to have contact. The mother was not present. It appears clear that the real reason that contact did not take place on the 20 June 2005 was that the mother thought that the father had not done enough to have contact with the child by 18 June 2005.
In circumstances where the father has been unable to travel form Perth to Brisbane by 18 June 2005, and 19 June 2005 would be a day for telephone contact in any event (see order 4(a) above at paragraph [5]) telephone contact ought to have taken place. I find that this is a breach of the order that amounts to a contravention.
The last contravention raises the difficult issue of what should occur if a contact parent misses a hand-over. The obligation to provide the child for contact for the relevant period set out in the orders remains. However, the residence parent is not required to be at the contact parent’s disposal for the whole period. Ordinarily the contact parent would proceed to go about their usual business and make arrangements for the child. If that results in a frustration of contact for that period (for example if the child is then sent away to extended family during the holidays as the residence parent works), then that would be a reasonable excuse for non-compliance. However, if the child is reasonably available then there is no reason for contact to be denied for the whole period simply because the contact parent is late to collect.
In this case the mother and child were attending at Lifeline on 20 June 2005 obtaining the second report. There was no reason that contact could not have commenced on 20 June 2005. Indeed the mother said in evidence that the real reason for not making the child available on 20 June 2005 was that she thought that the father had not done enough to get there on 18 June 2005 or advise them he would be late. In other parts of her evidence she suggested that her solicitor at the time advised her not to provide the child for contact as the father had not attended on 18 June 2005. She also says she relied upon the counsellor’s advice. On the whole her evidence on this issue was very confused.
I am satisfied that the mother has breached this order by failing to make the child available on the 20 June 2005 when she was reasonably able to do so. I am not satisfied that she took reasonable steps to comply, rather she was seeking a basis for not complying.
The counsellor’s report that recommended a 6-month suspension of contact was made in early December 2004. That 6-month period had passed by this time. The later report from Lifeline adds nothing to the earlier report. There is no information as to what counselling has occurred or its impact.
The only basis on which the mother could argue that she had a reasonable excuse for refusing contact would be that she thought the child would be too distressed. This is inconsistent with her refusals to use contact centres for hand-over. The second report is so lacking in detail that I am not satisfied that it provides a reasonable basis for a belief on reasonable grounds that the deprivation of contact was necessary to protect the health or safety of the child.
I find that with respect to the fifth and sixth contraventions that the mother has not complied with the orders and has made no reasonable attempt to comply with the orders. I am satisfied that she was aware of her obligations under the orders. I am not satisfied that she has any reasonable excuse for the contravention.
Conclusions
I therefore make formal findings that the mother did contravene the orders as alleged without reasonable excuse for doing so.
It is appropriate that I hear submissions on what consequential orders are appropriate in the circumstances.
I certify that the preceding one hundred and two (102) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Associate:
Date:
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