Vargas and Clarke

[2015] FamCA 1222

FAMILY COURT OF AUSTRALIA

VARGAS & CLARKE [2015] FamCA 1222

FAMILY LAW – ORDERS – CONTRAVENTION – Where the father alleges that the mother has contravened parenting Orders – Where it is found that the mother has not contravened the Orders without reasonable excuse – Applications dismissed – Orders varied in accordance with the best interests of the child.

Family Law Act 1975 (Cth)

Family Law Rules 2004 (Cth)

APPLICANT: Mr Vargas

RESPONDENT: Ms Clarke

FILE NUMBER: BRC 10951 of 2011

DATE DELIVERED: 25 August 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 25 August 2015

REPRESENTATION

THE APPLICANT: In Person

THE RESPONDENT: In Person

Orders

1. That the Contravention Application filed 14 April 2015 is dismissed.

2. That the Contravention Application filed 10 June 2015 is dismissed.

3. That paragraphs 4, 5, 6 and 7 of the Orders of his Honour Justice Bell made 28 February 2014 are discharged.

4. That the child, C, born … 2011 (“the child”), shall spend time with the father at a children’s contact centre for a period of two (2) hours each alternate weekend under the supervision of the staff of such contact centre, with such contact to commence at YY Contact Centre … as soon as such visits are able to be accommodated by the management of that centre after each parent has complied with all necessary intake procedures with that centre and each parent has been advised by the centre of the commencement date and time for such contact.

5. That should YY Contact Centre for some reason determine that it is unable to facilitate supervised contact visits between the child and the father or is unable to continue at some point in the future to facilitate contact visits between the child and the father, then the mother shall take all steps that are necessary to engage another children’s contact centre in south-east Queensland to provide the supervised visits that are required between the child and the father on an ongoing fortnightly basis and shall inform the father in writing of the details in respect of such contact centre and the arrangements that need to be put in place for visits to commence at such a contact centre as soon as possible after the need arises.

6. The mother and the father are to share equally in the costs charged by whichever children’s contact centre is supervising the child’s time with his father pursuant to these Orders.

7. The child shall communicate by telephone with the father every Wednesday between the hour of 5.00 pm and 5.30 pm and for the purposes of facilitation of this communication, the father shall provide a mobile telephone and sim card to the mother for the exclusive use of the child for these telephone calls, which phone the mother shall keep charged and turned on between at least 5.00 pm and 5.30 pm every Wednesday and she shall ensure that phone is made available to the child between those times to take a call from the father.

8. That should the phone that the father purchases pursuant to the previous Order be lost, damaged or destroyed, the mother shall inform the father in writing as soon as possible thereafter, following which he shall provide another phone to replace it.

9. That all other outstanding interim applications are dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vargas & Clarke 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 BRISBANE

FILE NUMBER: BRC 10951 of 2011

Mr Vargas

Applicant

And

Ms Clarke

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. On 28 February 2014, the Honourable Justice Bell, a Judge of this Court of long standing who has since retired, made Orders in the parenting dispute between Mr Vargas and Ms Clarke, the two parents of little C Vargas (“the child”) who was born in 2011. By my calculation the child is now just about four and a half years of age.

2. At the time when Justice Bell made these Orders, the child was not yet even three years of age. Those Orders were made after a five day trial that took place on 10-14 February,2014, in which his Honour Justice Bell was assisted by an Independent Children's Lawyer of experience who instructed counsel who appeared on her behalf. Indeed the mother was also represented by counsel that day, whilst the father acted for himself.

3. Justice Bell’s Orders were that the mother have sole parental responsibility for the child and that she keep the father advised in writing as to any decisions she makes in relation to the major long term issues in the child’s life, including decisions about health and education, those matters falling within the definition of major long term issues included in s 4 of the Family Law Act 1975 (Cth).

4. His Honour also ordered that the child live with the mother and that he spend supervised time with the father for two hours every week if it could be accommodated, but at least for two hours each alternate week if that is all that could be accommodated by D Organisation who were the organisation that operated the B Contact Centre. I shall say a little bit more about that later in these reasons.

5. The next Order of relevance was that the father could have telephone communication with the child between 5.00 pm and 5.30 pm each alternate Wednesday, and very significantly, his Honour ordered that those alternate Wednesdays commence on Wednesday, 5 March 2014. I understand from the evidence I have heard here this morning that the father did not appeal his Honour’s decision although he said he did not like it and did not agree with it, but that subsequently in 2014 he brought an application to reopen the parenting proceedings between him and the mother on the basis of his belief that he had done things that Justice Bell had said he was required to do before he could reopen those proceedings. His application to reopen, I understand, was refused by my colleague, her Honour Justice Hogan, and I am told that the father has appealed those Orders with the hearing of that appeal still pending.

6. Nevertheless, on 14 April 2015, the father filed an Application for Contravention in which he alleges that the mother contravened paragraph 5 of Justice Bell’s Order that I have already referred to, without reasonable excuse. In particularising that allegation, he says that on Wednesday, 8 April 2015 between the hour of 5.00 pm and 5.30 pm the mother did not facilitate phone contact between him and the child. That was the only contravention that he particularised in that application. He filed an affidavit in support where he said:

   I was to spend time with my son on the 3/4/2015, but could not due to the contact center [sic] being closed, the Mother blocked phone contact and did not facilitate any contact what so ever, in lieu.

7. I note that 3 April 2015 was Good Friday so it is not surprising that the contact centre was closed. There is no order that requires the mother to provide make up contact when the contact centre is not able to provide it for its own reasons. There is no order that says if the father misses a contact visit with the child because of something to do with the contact centre facilities that the mother must cause the child to call the father.

8. The father then says:

   I was to have phone contact with the child on the 8/4/2015, this was not facilitated by the Mother which is consistent with her long term pattern of phone contact of when it suits the Mother.

9. Before that application was listed for hearing, as I understand it, on 10 June 2015 the father filed another Application for Contravention against the mother. In that application he alleges two more contraventions without reasonable excuse, namely he alleges that the mother contravened paragraph 5, that provided for telephone contact, of Justice Bell’s Order on 20 May 2015 by again, without reasonable excuse, not facilitating a phone contact between him and the child. He also alleges that on 29 May 2015 the mother failed to facilitate time between the child and the father at the contact centre without reasonable excuse.

10. In support of those alleged contraventions, the father filed an affidavit on the same day, 10 June, in which he simply says:

    On May 20^th the Mother again failed to facilitate phone contact between child … and Father.

    On May 29^th the Mother failed to produce child for contact visit, nor did the Mother make any attemp [sic] to facilitate phone contact on that day in lieu.

11. The first thing I want to say in determining this application is that the father’s application for contravention could have, as he was told, been dismissed summarily right at the commencement, simply because he had failed to personally serve the mother with the two applications and the supporting affidavits - personal service being required by the Family Law Rules 2004 (Cth) (“the Rules”). Indeed according to the mother, and I have no reason not to accept it, she did not even receive the affidavit in support of the first application filed in April and she did not receive any of the second application or the affidavit material, but was aware through advice from her solicitor and a Registrar of the Court from a hearing they had before her, that there were allegations that she breached telephone orders and contravention orders.

12. The father told the Court that he did not know about the Rules requiring personal service and had not checked or researched them at all. However, the mother told the Court, notwithstanding the father’s non-compliance with the Rules, she was nevertheless prepared to put herself at risk in a contravention hearing and did not oppose the hearing proceeding today. So I proceeded to hear the contravention applications. Both parties were cross-examined and I heard their evidence.

13. The father asked the mother whether she agreed that she had contravened the Order about telephone contact on 8 April and on 20 May, to which she responded, no she did not. I was particularly concerned, having regard to the absence of any evidence from the father that actually established in accordance with the Order that there was definitely phone contact due or required on those two dates, to check the calendar. That required me going back on the calendar to the first day of the alternate Wednesdays that were ordered by Justice Bell, Wednesday, 5 March 2014, and working right through the calendar with the father and with my associate, each having a calendar in front of them doing the same thing.

14. It became clear to me, and it was agreed by the father, that indeed alternate Wednesdays commencing on 5 March 2014 would not have fallen on Wednesday, 8 April or indeed Wednesday, 20 May. Somewhere along the line the father has made a mistake in respect of working out when he was due for telephone communication with his son and he has got it wrong. I am simply not able at all, as a matter of law or fact, to determine that the mother contravened the Order by reference to the alleged dates of contravention by the father because pursuant to the Order no phone contact was required on either of the days that he says it did not happen. I dismiss the applications for contravention in respect of the alleged contraventions of paragraph 5 of Justice Bell’s Orders that were said to have occurred on 8 April and 20 May.

15. Be that as it may, even if the days had been right, to find that the mother deliberately, or without making any reasonable attempt, failed to comply with the Orders would be wrong. That is because the Orders say the father shall have telephone communication with the child and it does not say who is responsible for making the call. I heard evidence that for a long time last year the father was calling on a number that the child had before the mother actually began having the child call the father on the alternate Wednesdays on the phone that she has. There was disagreement between the two parties about whether sometimes the father’s contact telephone calls were late last year and sometimes whether he made them, there was disagreement about whether the mother was getting the child to call every alternate Wednesday.

16. It is unsurprising in this case, having regard to the fact that these two parents have not spoken with each other effectively for three years now on the mother’s evidence, that they have miscommunication and misunderstandings about the nature of the Orders and when the communication between father and child is to happen. These things become extremely difficult in circumstances where parents do not communicate with each other. This is a case that is best described as a high conflict, highly emotive case, and the fact that they cannot communicate with each other is the very reason why Justice Bell conferred sole parental responsibility on the mother for the child.

17. Having regard to the evidence and what I know about the case and the allegations that the father has made against the mother, it is hardly surprising, with respect, that she does not want to speak to the father as she says and it is hardly surprising that there is no communication between them. That is only ever likely to improve, in my view, in circumstances where the child is living with the mother and only having supervised time with his father and talking to his father relatively infrequently on the phone, if the father begins to change his attitude towards the mother and her role in the child’s life.

18. I was not satisfied at all on the balance of probabilities to the necessary standard, that even if the dates had been dates that the telephone communication was to happen, that the mother had contravened the Orders without reasonable excuse and I will deal with some more of that momentarily.

19. The final contravention alleged was that she failed to bring the child to the contact centre on the Gold Coast on 29 May. There was no dispute between the parties that, according to the contact centre, there was a visit scheduled. The father drove from Town A to the centre. I understand that he has recently moved to Town A, so it was a three hour drive. He obviously went to the centre excited and looking forward to seeing his little boy, but the little boy did not turn up. The centre called the mother and asked why she had not turned up. The mother says that she did not realise that it was a scheduled visit, she was in fact at a otherwise engaged whilst her parents were looking after the child.

20. She put the misunderstanding down to the fact that the father had had three supervised visits with the child at the contact centre over the previous two weekends and she was confused about the exact timing and scheduling of the appointments and did not realise that another one was scheduled for the date of Friday, 29 May 2015.

21. The father quite fervently asked me to accept that the mother was not telling the truth about that and that she knew that he was scheduled to have a visit that day and that she deliberately chose not to deliver the child. He even went further than that. He actually fervently asked me to accept and find that it was deliberately done to cause him emotional harm and hurt.

22. I do not accept that at all. I saw the mother in the witness box, I have heard her make a number of concessions this morning, I saw her speaking to the father and offering him concessions in respect of some of the parenting Orders, that in my view were seemingly ignored by the father or went over his head. They did not seem to arouse his interest whatsoever. I am satisfied that was simply because he was determined to try and persuade me that the mother is deliberately and intentionally seeking to cause him emotional harm.

23. As I have said earlier, the father needs to move on from that view and that belief about the mother if the current Orders in place in respect of his supervised time with the child are ever going to change. That is in my view and I say that is what I consider Justice Bell was effectively saying in his reasons as well.

24. I am not satisfied that the mother knew that Friday the 29^th was a visit and deliberately chose not to take the child. I am not satisfied that the mother knew that Friday the 29^th was a scheduled visit and made no reasonable attempt to comply with the Order. I accept the honesty of her evidence when she said she simply was confused and misunderstood the arrangements. In the circumstances that she outlined it is clear and easy to see that could have happened.

25. In all the circumstances I dismiss the father’s application in respect to an alleged contravention on 29 May 2015 as well as the two previous ones that I have dismissed.

26. Notwithstanding the fact that I have dismissed the application, I have power under s 70NBA to vary parenting Orders after a contravention hearing, even where I have not found that the person committed a contravention of the primary order and I can do that in circumstances where I consider it is in the best interests of the child.

27. As I have said before, the father alleged that the phone calls did not happen on 8 April and 20 May and he got those days wrong. Part of the reasons why that has happened, in my view, is that the telephone contact is currently provided for every alternate Wednesday. Sooner or later, the parties are going to have to do what I did and start from 5 March 2014 and mark their calendars right through until the child turns eighteen or at least is old enough to not want to take phone calls or wants to do whatever he wants to do, (which is likely to be before he is eighteen in my experience).

28. To her credit, when I asked her in the witness box what the solution might be, for example would she agree to the phone calls being every Wednesday, the mother readily said “yes”. The father says that he will accept that with open arms and I am satisfied that the mother has not made a case that when the boy talks to the father that he is somehow emotionally harmed, so I am satisfied that it would be in the child’s best interests to vary Justice Bell’s Order at least in respect of changing the telephone communication to each week and I will do so. I will come to that in a moment.

29. Another circumstance has emerged that causes me to consider that Justice Bell’s primary Order needs to be changed. It referred to the B Contact Centre that is operated by D Organisation. D Organisation do not operate it any more. It is now operated by Relationships Australia and they operate other centres for example, Suburb J. The centre at the Gold Coast can no longer accommodate the father.

30. I did not ask the father about this, but the mother said that is because, firstly, they do not like to offer long term supervision beyond twelve months unless they are satisfied that there is some scope for change in the future in respect of the particular family they are offering it to, ie interim supervised time that might change after final hearing.

31. In this case the mother’s evidence, at least, was that the centre staff determined that there was unlikely to be change because they do not consider the father is going to change in any way. Interestingly, in one of the father’s affidavits that he read in these proceedings, he seems to corroborate the mother’s position that the centre staff determined to terminate their use of the centre because of his conduct. He says that he was told that it was effectively because of his conduct, and he even goes as far as saying that it was because he continued to raise allegations with the centre staff that the child had been abused.

32. I say as an aside here now that if he continues to do that at the next contact centre he goes to, it will only be a matter of time before that contact centre also terminates his time there. Not only that, he might very well face an application by the mother to cease contact altogether because it is not in the child’s best interests, especially if it is happening around him and within his hearing, for the father to continue to be asserting to supervisors at the supervised contact centre that the child is being physically abused by his mother, that being a big issue in this case over its history.  

1. The mother says now that she has made contact with YY Contact Centre which is a centre at Suburb H. I do not know if it will be any further for the father to drive, but it will be an extra couple of hours driving for the mother that she did not have to do. Again, by way of what can only be described as a very creditable concession, the mother says she will do it and it seems that she is going to have to do it because of the father’s conduct not hers. She is prepared to drive the child to the centre at Suburb H so that he can continue to spend time with his father seemingly the mother accepting and I say this for the father’s benefit, the mother clearly accepting that it is in the child’s interests to have a continued relationship with his father.

2. I will vary the Orders that they reflect the change of centre as well.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 25 August 2015.

Associate: 

Date:  26 August 2015