VICKERY & VICKERY

[2018] FCCA 4023

FEDERAL CIRCUIT COURT OF AUSTRALIA

VICKERY & VICKERY [2018] FCCA 4023

Catchwords:
FAMILY LAW – Parenting – Contravention Application – facilitation of telephone time – arrangements relating to the child’s attendance upon psychologists – equal shared parental responsibility about major issues decisions – allegations with respect to face-to-face time that has not occurred – where mother seeks summary dismissal of application – where two of six allegations could not be established taking the husband’s evidence at its highest – where four allegations suggest that time did not occur – where father was to collect the child from school without the mother’s involvement – where mother submits that as she was not to facilitate the father’s time with the children that the allegations must fail – where the evidence tendered in the father’s case suggests that the mother removed the children from their school prior to the end of the school day so that the children would not be present to be collected – where removal of the children interfered with the father’s ability to collect the children as anticipated by the orders – where an arguable case is made out such that the remaining four allegations should proceed to hearing.

Legislation:

Family Law Act 1975 (Cth), ss.4, 65DAC(3)
Evidence Act1995 (Cth), s.69

Applicant: MR VICKERY

Respondent: MS VICKERY

File Number: WOC 471 of 2016

Judgment of: Judge Harman

Hearing date: 11 December 2018

Date of Last Submission: 11 December 2018

Delivered at: Parramatta

Delivered on: 11 December 2018

REPRESENTATION

Counsel for the Applicant: Ms Doosey

Solicitors for the Applicant: Rossi Simicic Lawyers

Solicitors for the Respondent: Mr Ridley of Matthews Folbigg Pty Ltd

ORDERS

1. Dismiss the first and second alleged contraventions as alleged within the Application for Contravention filed 9 November 2018, being complaints related to telephone communication 19 September 2018 and the child’s engagement with a psychologist 27 September 2018.

2. Decline to summarily dismiss the balance of the Application.

3. THE COURT NOTES that during the adjourned period it is the intention of the parties to jointly engage with the psychologist with whom [X] is presently attending namely, Ms A, and to each do all things necessary to ensure that each can parent provide information to and receive information from that psychologist as the psychologist may determine is appropriate within her clinical engagement.

4. THE COURT NOTES that it is the intention of the parties that neither will engage [X] with any other psychologist, psychiatrist or similar professional without the consent of the other first had and obtained.

5. Adjourn the proceedings part heard to 21 June 2019 at 9.30am.

6. THE COURT NOTES that an Application initiating proceedings has been filed 4 December 2018 which is presently returnable before Judge Meyers 7 February 2019.

7. Vacate the listing 7 February 2019.

8. The matter is adjourned for further mention and directions to 1 February 2019 at 9.30am before Judge Harman.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

WOC 471 of 2016

MR VICKERY

Applicant

And

MS VICKERY

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to an Application for Contravention. 

2. The Application for Contravention relates to primary orders made 23 January 2017 and 19 September 2018 respectively.  The latter orders were made in the context of both an Application Initiating Proceedings filed by the mother and an actual or foreshadowed Application for Contravention filed or to be filed by the father. 

3. The parties compromised the earlier proceedings and concluded their business before the Court on 19 September, 2018, albeit with only little respite.  On 9 November 2018 the present application was filed.  Thus, the peace, if it might be so described, negotiated between the parties lasted less than two months. 

4. The primary orders provide arrangements for two children:

   [X], born … 2007 who is shortly to turn twelve; and,

   [Y] born … 2010 who will shortly turn nine.

5. [Y]’s arrangements are not the subject of the Application for Contravention. 

6. The parties to the proceedings are the children’s parents, their father, the applicant and their mother, the respondent. 

7. Six allegations of contravention are made, being:

   a)One occasion on which it is suggested telephone time did not occur or that something required of the mother pursuant to the order relating to telephone time was not done;

   b)Arrangements relating to the child [X]’s attendance upon psychologists, plural; and,

   c)Four allegations with respect to face-to-face time which has not occurred.  One relates to a school holiday period.  Three relate to school term time. 

8. It is submitted on the mother’s part that the father, with his evidence taken on its face as more probably correct than not, could not succeed in prosecuting any of the six applications. 

9. I propose to deal with each of the applications and the evidence relied upon with respect to them in turn. 

10. It is to be noted that this determination will address what is, in effect, an application for summary dismissal before any portion of the contravention application can proceed. 

Evidence considered in dealing with the proceedings

1. At this point, I have read and considered paragraphs 61 onwards of the father’s affidavit filed in support of the Application for Contravention together with the Application for Contravention. 

2. There are also a significant number of tenders comprising:

   a)Exhibit A1, certain portions of material from School B, the school attended by both children;

   b)Exhibit A2, certain material from Psychology Service C;

   c)Exhibit A3, records from the Mental Health Service D, a child and adolescent mental health service upon whom young [X] has attended;

   d)Exhibit A4, a letter from a psychologist, Ms E – that letter is annexed to the father’s affidavit but incorporated via an early portion of the affidavit not yet read and, hence, for abundant caution, it is marked as an exhibit;

   e)Exhibit A5, tagged portions 29 to 31 of material produced by New South Wales;

   f)Exhibit A6, further material from School B;

   g)Exhibit A7, certain portions of the mother’s affidavit filed in August 2018;

   h)Exhibit A8, material from the psychologist Ms E, her records tendered in their totality. 

First Allegation

1. The first breach relates to an allegation that the mother, without reasonable excuse, failed to ensure and facilitate telephone communication between the applicant and the child [X].  The order that relates to that telephone communication is order 20 of the orders 23 January, 2017.  The order is expressed in both permissive and mandatory terms and as follows: 

   That the parents can communicate with the child by telephone or FaceTime on any night that they are not in that parent’s care between 6.30 pm and 7.30 pm prior to the children’s bedtime. 

2. Leaving aside the somewhat tortured grammar of that portion of the paragraph (for example, it being open to interpretation that if the children are in a parent’s care between 6.30 and 7.30 pm, that they cannot telephone, or that the children must not have gone to bed earlier than those times) the order is permissive.  It permits a parent to telephone.  It, however, has a second sentence:

   The parent who has the care of the children at that time shall ensure and facilitate the children receiving such call.

3. Potentially, much turns upon what is meant by the phrase “ensure and facilitate the children receiving such call”.  The paragraph goes no further than its stated terms, mandatory as they are.  What is required is that a parent facilitate and ensure that the child/ren receives the call – nothing further and nothing additional.  That ultimately, however, need not be addressed further.  The evidence that is relied upon with respect to that complaint, suggesting that the mother’s failure occurred on 19 September, is deficient. 

4. It is suggested, (paragraph 62), that at 7.11pm on 19 September, that a text message was sent by the father to the mother regarding telephone communication.  It is to be remembered the parties had been before the Court that day.  Thus, potentially, the mother could argue the children had not been in care and she was entitled to telephone them.  Thankfully, such mischievous and pointless positions are not advanced. 

5. The father goes on to indicate that after sending his text message, he did not receive a reply from the mother and he then makes the statement:

   And Ms Vickery did not facilitate me speaking with [X].

6. The mother’s obligation, of course, is not to facilitate the child speaking with the father but to facilitate the child receiving the call.  Fundamentally and fatally, however, there is no suggestion that a call was placed, merely a text message sent. 

7. The father then complains in the following paragraph, (63), that the next day, 20 September, that he did telephone and spoke to [Y] and certain things then occurred.  That is not, however, the allegation against the mother.  Hence, that allegation must fail.  It cannot be supported on the evidence led when taken at its highest.  The mother will not be required to respond to the complaint further. 

Second Allegation

1. The second complaint is framed in the following terms:

   The mother, [presumably on 27 September 2018], without reasonable excuse, unilaterally caused the child [X] to attend upon a psychologist without the father’s knowledge, prior consultation or consent

2. The paragraphs of the primary orders that are relied upon to found that allegation are paragraphs 12 of the orders 23 January 2017 and paragraphs 4 and 5 of the orders 19 September 2018. 

3. Paragraph 12 of the earlier order is an order for equal shared parental responsibility.  It specifies that the parents will have equal shared parental responsibility about major issues decisions in relation to the children, including but not limited to issues about, (sub paragraph (c) of the definition of “major issues decisions” in section 4 of the Act), the children’s health.

4. More specific orders are included in the September orders wherein paragraph 4 reads:

   That the parents forthwith do all things, sign all documents and give all consents, authorities and instructions as may be necessary to cause the child [X] to attend upon an appropriately qualified child psychologist, and, to facilitate the same, the father shall within seven days provide the mother a list of three proposed practitioners in writing, from which the mother is to select one in writing within seven days thereafter. 

5. There are numerous obligations contained within that order. 

6. Order 5 provides a mechanism for the child’s treatment should the mother fail to comply with that which was required of her, (although it is not suggested that she has so failed).  Accordingly, that provision is not considered further. 

7. Paragraph 4 requires that the parents both do all things, sign all documents and give all consents, authorities and instructions necessary to cause [X] to attend upon a psychologist.  It might be inferred that the psychologist is to be selected by the methodology provided in the balance of the order, the father nominating three practitioners, the mother selecting one.  However, whilst it can be inferred it is not express within the order.  The order is not restrictive or prohibitive in any fashion though nothing turns on that. 

8. The order does not, for example, restrain the parties from causing [X] to be engaged with any other practitioner, merely that they ensure his attendance upon a practitioner in accordance with the mechanism provided by the order. 

9. There are a number of elements to the father’s allegation. Firstly, to the extent that the order for equal shared parental responsibility is relied upon, regard must be had to the obligations created by that order. They are set out in section 65DAC (3) of the Family Law Act 1975 (Cth). Thereby, an order for equal shared parental responsibility is “taken to require each of those persons [those persons invested with equal shared parental responsibility] to (a) consult the other person in relation to the decision to be made about that issue;  and (b) to make a genuine effort to come to a joint decision about that issue.” 

10. Subsection (4) goes on to indicate that to avoid any doubt, the section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.  Indeed, the section does not suggest that the parties must make joint decisions, merely that they must consult and make a genuine effort to make a joint decision.  One might suggest that the negotiation leading to the making of the order on 19 September satisfied the requirements of that order. 

11. The evidence before the Court does not establish that the mother has failed to comply with her obligations either as to equal shared parental responsibility or the more specific order of 19 September. 

12. It is suggested that the mother has engaged in an exercise of psychologist shopping.  However, there is no dispute that the mother was presented by the father with the names of three psychological services and that the mother within seven days, indeed, within four days, had made and acted upon her selection. 

13. The issue that arises is perhaps inferential, relying upon the suggestion that the mother has shopped around for different psychologists with the express intent and purpose of undermining the father’s involvement in that therapeutic process, getting in first and painting him poorly. It is suggested that the mother has made a decision with respect to the child’s attendance upon a particular psychologist or agency rather than following through with that which was nominated by the father and selected by the mother. 

14. There are myriad difficulties with those propositions. 

15. To the extent that it is suggested that Ms E is part of “psychologist shopping”, it could not be fairly put as a criticism of the mother.  Ms E clearly engaged with the child well prior to the orders in September 2018.  Both parents were involved in that therapeutic process.  Her records are before the Court in their entirety.  To the extent that it is suggested that the mother has engaged in some exercise of badmouthing the father to Ms E, one can only observe that the father engages in exactly the same process in relation to the mother. 

16. Indeed, that is one of the tragic aspects of this case.  Both parties appear very clearly focused on their conflict with each other rather than upon the victim of that conflict, their son, [X].  Clearly, both parties accept and must be taken by the orders to which they consented on 19 September to accept, that [X] requires psychological intervention.  Rather than investing time and effort in that process, the parties are before this Court. 

17. Ms E in her material, its totality before the Court, records on several occasions that the parties jointly or individually have been negative with respect to the other.  Curiously, in light of the complaint raised of the mother that she has engaged the child with a psychologist without the father’s knowledge or consultation, a record of 15 September 2017, a letter by Ms E to the child’s treating general practitioner, suggests that [X] had been taken by his father to a different psychologist than Ms E without the mother’s knowledge. 

18. Importantly, the records suggest that each of the parties is liberal in their contact with Ms E raising their complaints with respect to the other.  The father, for example, in an email 25 July 2018 suggests to Ms E:

    I just wanted to let you know how [X] is being manipulated by Ms Vickery and my concern is for [X]’s welfare, coping with Ms Vickery’s constant interference with him spending time with me. 

19. The father acknowledges in the same email that there is an AVO against him and, as a consequence, he does not wish to attend any event or place that the mother and her partner, and presumably the children, if in their care, are present, for his own safety. 

20. The father complains about the mother and cuts and pastes a portion of the section 65DA pamphlet attached to the orders issued by this Court into his email to seek to demonstrate the mother’s disingenuous noncompliance.  Perhaps a linking element is provided within that email also.  One of the complaints that is raised by the child, and I make clear that I accept that the complaint is raised by the child, not the child’s mother, and as evidenced in exhibit A4, a letter from Ms E, 30 July 2018 addressed to the treating general practitioner for each of these parties, is the suggestion that “the major issue for [X] appears to be contact with his father interfering with his attending sports of a weekend”. 

21. Two collateral concerns are also raised, namely, difficulties with the child being assertive with his father and expressing that he feels scared of his father on occasions. 

22. Whether those statements are accepted as true or not need not trouble me at this point.  They are concerns raised by the child.  To the extent that it is suggested they are matters raised by the mother, and necessarily so by inference from the wording of the letter, I reject the submission.  Ms E’ records made clear, as do those of the GP, that the child, whilst he is described as being less than forthcoming, or perhaps not forthcoming at all at times, he clearly raises matters himself. 

23. Criticisms of the father are not all raised by the mother.  To the extent that the mother raises issues critical of the father, the father gives as good as he gets.  The father concedes in the email: 

    I was speaking to [X] this evening and he told me he didn’t want to go skiing this weekend.  He said that he only wanted to go once a year. 

24. Many children, of course, may well cherish the prospect of being taken skiing by anyone, let alone a parent.  Of course, the parents of such children cannot afford such activities.  These parents can.  And yet it is the cause of stress and anxiety for the child.  The father’s email continues: 

    It just so happens that it, [the skiing trip], is when I’m due to have [X] on this weekend.  That will interfere with him playing sports, as was the case when Ms Vickery kept him from me for three weeks.  [X] was looking forward to skiing.  Each time we have gone to the snow I believe that Ms Vickery is putting more pressure on him to comply with her desire to have him seen at sports as she and her partner are heavily involved with the sports club. 

25. Clearly, when it is reported that a significant issue for the child is interference in sports, it is a very real issue.  The father suggests one created by the mother rather than having any meaning or importance for the child. 

26. Significant issue also arises from Exhibit A1, a suggestion in a school record that Ms E has communicated certain things to the school counsellor.  A record dated 25 September 2018, records a phone communication between the school counsellor, whose name is not apparent from the record, and Ms E.  It states: 

    Mother is planning to not send [illegible] to his father’s as required by Court. 

27. There are then further statements.  It indicates later in the note: 

    [X] and mum both very emotional.  Mum is seeing her GP for anxiety.  [X] not at school yesterday or today. 

28. That is also in the context of suggestions that [X] has, to the school counsellor and possibly others, uttered threats of self-harm connected with this conflict and/or his attending visits with his father.  The record is admitted as a business record.  Certainly, it would appear to be so, produced by the school in response to a subpoena.  However, the business record cannot prove the contents of the statement.  It is suggested that what is stated “mother is planning to not send”, presumably [X], is a recording of an admission by the mother, but it is not an admission suggested to be made to the maker of the note. Section 69 of the Evidence Act1995 (Cth) admits a document as proof of the document, not its contents.

1. Certainly, as is provided in section 69(1)(b), to the extent that the document contains a prior representation made or recorded in the document in the course of or for the purpose of the business, it may be admissible as proof of that representation. However, subsection (2) makes clear that the hearsay rule does not apply to the document or the representation if the representation was made by a person who had or might reasonably be supposed to have personal knowledge of the asserted fact.

2. It could be argued Ms E has knowledge of the particular fact, being a statement suggested to have been made to her by the mother, but the author of the tendered record does not.  Ms E is the person with that knowledge.  The author of the record has no idea whether what Ms E is relating is true or not, although there is no reason they would doubt that what she relates would be accurate.

3. All of that is perhaps tangential.  The relevance of the statement to that which is complained of and with respect of which the tender is made, the mother’s suggested noncompliance with an order in relation to the appointment of a psychologist for the child, is unclear. 

4. Both parties acknowledge that the child needs psychological intervention but both are apparently incapable of cooperating together to secure it, no doubt to the child’s significant disadvantage and distress.  That much is apparent.

5. It might be suggested to be relevant to the balance of the complaints in relation to face-to-face time.  However, to the extent that it is submitted that it is evidence of motive or pre-planning, I do not accept that it could establish that either.

6. In returning to the specific allegation, what is clear is that Ms E has withdrawn her service from [X].  There is no dispute on the evidence that it is so.  Accordingly, the mother and, indeed, the father, are required to obtain a fresh psychologist, and attempts to do so could not be appropriately described as “psychologist shopping”.

7. The mother clearly obtained a referral to Mental Health Service D.  Ms E refers to it in the Exhibit A1 and it is recorded by the school counsellor.  The mother contacted that agency.  The mother also contacted the very agency that the mother had selected from the three that the father had nominated, that being Psychology Service C.

8. Tendered in the mother’s case, Exhibit R1, is an email addressed from a member of staff of that agency, in fact, described in his signature block as “clinical lead, mental health support and wellbeing” from the service Psychology Service C, to the mother.  That document corroborates that the mother made contact with Psychology Service C on each of 19 and 20 September. 

9. The mother was told by that agency that service would be declined on three bases.  Firstly, that the agency was not a Court-mandated service.  Secondly, that the agency did not provide support to families experiencing high conflict post-separation, an accurate descriptor of this family.  It continued that service was not provided where there are current family law proceedings, although at that point in time the family law proceedings had been concluded with the orders 19 September.  Thirdly, the agency did not provide crisis appointments.  That is a significant statement. 

10. Clearly, it was accepted by the agency, presumably based on that reported by the mother and presumably accepted by both parties who acknowledged the need for this child to receive psychological intervention, that it was, indeed, a crisis.  The letter goes on to indicate:

    Due to our waiting list time when you made your inquiry, we made a decision based on ethical practice to provide alternate service options to you.  As such, we provided Psychology Service F and Psychology Service G as options. 

11. It is the former agency that the mother made contact with.

12. A letter is issued by Psychology Service C, dated 5 October, indicating that service had been declined. 

13. It is submitted in the father’s case that a significant element for the agency declining service was the mother having already made an appointment with another agency and, thus, they did not wish to duplicate service.  That was not a specific point referred to in either this email, (Exhibit R1), or in the earlier tendered records directly from that service and comprising the letter of 5 October.  They acknowledge that an appointment had, by 5 October, been made by the mother with another service and that it was the service that could best provide assistance to the child.

14. In light of that evidence, it is simply impossible for the complaint to be made out.  That is leaving aside the reality that what is required of the mother is simply to make an election from a list provided by the father.  That is a matter which is not the subject of complaint or controversy.  The selection was made by the mother, and promptly so.

15. I am satisfied, by reference to the above evidence that, firstly, the complaint of contravention in relation to those orders, the second breach alleged, could not be made out and thus must be dismissed.  Secondly, I am satisfied that the mother has complied with her obligations within both the terms and the spirit of the order.  Thirdly, the focus upon seeking retribution or remedy in relation to the suggested wrong of the mother is misplaced.  The child needs psychological assistance.  Why the parties are litigating when that is obvious is inexplicable.

16. Ms E’ records make clear that the need for crisis psychological intervention for [X] has been the case for over a year.  The records that are produced by Ms E include, for example, a referral by the child’s GP to Ms E in June 2017, noting the child was withdrawn, hostile towards his brother, that his engagement towards his family had changed, and that all else within his life would appear to have been problematic save his school attendance. 

17. It was recorded that his parents had separated only some months earlier, in November 2015, and that since that time his behaviours had been changing, corresponding with the change in his home environment.  Heaven forbid that either of these parents might have reflected upon how difficult they have found separation and multiply that by whatever factor they choose to select to begin to understand how difficult it has been for their child.  That focus is not apparent.  They have focused on their needs, their interests, their dispute, regrettably so, as it is to the disadvantage of this child. 

18. As Felsteiner, Sarat and Abel have opined, disputes are not things.[1]  They are constructs between people.  Yet, sadly, as in so many cases, the dispute between these parents has become tangible and real.  It is their Pooka.  It follows them about.  They might as well set a place at the table for their dispute.  It is their conflict which is causing damage to this child, or so it would seem from the records of Ms E.

    [1] William Felstiner, Richard Abel and Austin Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming’ (1980-81) 15(3-4) Law & Society Review at 631

19. That the child’s need for treatment has been recorded for 18 months and now the parties are again before the Court quabbling about how an appointment was made for the very assistance the parents agree the child needs, the complaints being made on the basis that one or other might get in first to bad-mouth the other parent is regrettable, to say the very least.

20. In October 2017, 14 months ago, [X] is recorded by the GP as being referred to Ms E.  Both parents were copied into the email which refers to [X] as “frightened and unhappy”.  [X] was recorded as requesting to not attend his father’s house that weekend and concluding  “he is scared of his father and his partner shouting.  He would prefer a bit of time away with his mother.”

21. The referral to Ms E was to provide assistance and counselling to improve “his current flat effect”.  He was encouraged, at that time, to speak up and mention to his parents what made him feel uncomfortable, (consistent with Ms E’ description that he is not forthcoming).  That is hardly surprising.  This child would appear to understand full well what happens when he is forthcoming with criticisms about one of his parents.  He is ignored.  He is aware that he has a voice but equally conscious that he has no platform from which to express it and that, irrespective, his voice is not heard.

22. When [X] is expressing these complaints 14 months ago and, on the mother’s case, although I need not continue to a finding at this point as the proceedings continuing, it results in further litigation between his parents and further conflict rather than a cooperative alliance seeking to address those concerns.  Much of the conflict would appear, as Ms E has accurately opined in her letter, to be focused around the child attending sports, something that his mother and stepfather are actively involved in and that his father refuses to involve himself in, or take the child to, on the basis that he does not wish to expose himself to complaint, criticism or allegation by the mother or her partner who have obtained an Apprehended Domestic Violence Order against him.

23. In May 2018, pre-dating the conclusion of the past proceedings by some months and the present proceedings by seven months, the child indicated to his GP, who again referred him back to Ms E, and both parties sent a copy of the referring letter, that he was disappointed and unhappy about not being taken to sports practice or matches when with his father.  He requested of the GP to not go to his father’s home that weekend as it would mean missing sports.  That would appear to suggest, although on the basis that the child was seen in the company of the mother, it will no doubt be dismissed as the mother’s influence, that the child was expressing a clear, cogent and strident desire to be able to participate in that activity.

24. Again, all of those records are somewhat tangential as regards the complaint that is raised.  They are discussed as the parties have tendered them and made strident submission that they support their position.  They do nothing for [X].  I have laboured upon the records as they make very clear that this child is in crisis.  He is distressed.  He does need assistance.  The very assistance he needs is denied to him through enduring litigation.  But that, of course, is a matter for his parents, if that is what they wish to engage in. 

25. The complaint cannot be established. 

Third complaint

1. The third complaint relates to a period of school holiday, face-to-face time.  There is no controversy that at that point the younger child, [Y], was delivered to the father at the carpark of a KFC establishment at Town H.  The parties presumably think that such a location and such a mechanism of changeover between them is an adequate safety for them, but without considering the message it sends to their child.  He might as well be a bucket of partially chewed Kentucky Fried Chicken exchanged between his parents like so much rubbish. [Y], though, is the only one who has received the message on that occasion, as his elder brother did not attend.

2. The point is raised, and validly so, that the order which relates to changeover (order 18 of the 2017 orders), provides that non-school day changeovers are to occur at Town H Woolworths so that the child can be exchanged like a returned gift no longer desired instead of the gnawed bones of a chicken.  The changeover, of course, did not occur there.

3. I accept that there is some force to the submission that the Court can only enforce the order as it is expressed.  However, it is also noteworthy that the mother does not suggest that [X] was made available or presented irrespective of the venue.  Both parties attended the same venue suggesting an agreed or common practice. 

4. The technical issue that is raised is appropriately raised.  The order provides for changeover at a point different to that at which the father was waiting for the child.  However, the mother concurred and acquiesced to that change of the arrangement, as it were, by presenting the younger child to that place.

5. Accordingly, I am not satisfied that the complaint can or should be summarily dismissed.  The complaint should proceed on the basis of the father establishing that the time did not, in fact, occur.  There is evidence which, if taken on its face as more probably correct than not, could so and would then require the Court to proceed to deal with the issue of reasonable excuse. 

Fourth, fifth and sixth complaints

1. The last three contraventions might be conveniently grouped together.  They all relate to the father collecting the children for a period of weekend time during school terms with collection to occur, pursuant to paragraph 18 of the earlier orders, at the children’s school.  The order provides that, quote:

   In regard to changeover … should the children be attending school, then the father shall collect the children from and return them to school on those days.

2. Again, there is some real force and effect to that which is put by counsel for the mother, that the order does not require anything of the mother, save, perhaps, the inferential obligation to present the children to school.  There is no suggestion that the children were not at school on the relevant day.  The father’s evidence is that he collected [Y] from the front gate of the school and that the elder lad was not sighted.

3. But for one aspect of the evidence, that would be the end of the issue.  The father could not, on that evidence, demonstrate that the mother had any role to play in the child’s non-presentation or non-attendance.  That is, however, subject to the one portion of evidence which does create at least an arguable case, and I am satisfied a case to be tried.  That evidence comprises an email from the mother to the children’s school, 28 August.  That email reads as follows:

   Just to keep you up to date, an initial hearing date is set for 19 September at which point I hope to have interim orders to provide to you.

4. I pause to observe that why either of these parents feel that the school desires or needs to be intimately involved in an understanding of their litigation beggars belief.  The school would much prefer, I am sure, to be left to educate the various children whose care is charged to them. 

5. The email continues:

   In the meantime, I will continue to collect [X] from the back gate when [Y] is being collected from the front.  The police have indicated that they feel [X] is safe while not interacting with his father.  I have been told to call them in the event he attempts to interact with [X].

6. Again, why the police would need to be involved in such matters beggars belief.  Presumably, there are not more serious issues for them to address within the Town I and Town J community.  Heaven forbid that there might be serious assault or drug dealing occurring.  The reference, however, would appear to connect with the documents tendered from New South Wales police.  On three occasions, 28 July 2018, 29 July 2018 and, finally, on 4 August 2018, complaint is made to the police about a suggested “assault” upon [X] whilst in the father’s care.

7. Those complaints commence in the first of those entries, 29 July 2018, with the suggestion that the child had witnessed domestic violence that has occurred between the father and his partner.  The source of knowledge for that suggested belief is not clear or apparent. 

8. It is recited that in January 2017 custody orders were put in place with both children being with their father three nights a week, consistent with those orders.  It then reads:

   [X] has described two occasions to his mother where he alleges that he was assaulted by his father and is now intimidated by him.  This was typed up and provided to the police 

9. Those records are not part of the tender. 

10. The other child, [Y], is suggested to have been with his father at the time of a police visit to the mother’s home and with no issues with his father and having reported to, presumably the mother, no incidents of assault of mistreatment. 

11. The child, [Y], is suggested to have alleged that on 21 July 2018, although it may be intended to be a reference to [X], his dad has become angry when he dropped a can of drink at a sports game.  Sport, again, looming large as a precipitating event for unhappiness for the children.  The Police record then continues:

    Mr Vickery, the father, has grabbed this child’s arm roughly and dragged him away, shouting at the child.  The child also described an incident that occurred about a month ago, June 2018, when his father has become angry at him for unknown reasons and put his hand on his shoulder and pushed him up against a wall and shouted in his face.  The child stated he cannot remember the reason behind his father’s anger towards him. 

12. The child adds in the typed up paragraphs:

    I have been too scared to see my dad sometimes.  I have been to see my doctor a few times as I was scared to see my dad and I didn’t want to go and we got a letter from the doctor.  I didn’t see my dad this weekend as I told my mum I wouldn’t go. 

13. Police spoke with both the child and with the mother.  It was noted that there was an AVO for the mother’s protection and that of her partner as a consequence of an incident the preceding year.  It is then recorded:

    Ms Vickery, the mother, controlled the conversation for the child with the child present that appeared reluctant to speak to police.

14. Presumably again, the child was reluctant to speak.  The police provided a card, presumably a yellow card, and little else occurred on that occasion, although that is not a criticism. 

15. It was followed up the following day and the same allegations repeated.  The child, again, suggested, whether directly to police or through the mother, to hold fears about attending with his father. 

16. Finally, on 1 October 2018, the police attended and obtained a formal statement from [X].  The child stated, without mum’s intervention, that:

    He was at a sports game with his dad.  He was told to a put a drink down because he was being silly.  The child took longer than he should have and his father grabbed the child by the upper arm and shouted at him.  The child was directed to move away from the sports game.  The child walked 40 to 50 metres away.  After about five minutes, the father came to collect the child and the two continued to watch the sports game.

17. The incident, as described, would appear to be an act of lawful chastisement on the child. 

18. The child does not enjoy spending time with his father.  The rules at his father’s home are different to that of his mother. 

19. The police took no further action in relation to the event or, at least, it is not recorded as being intended or taken. 

20. The opinion expressed by the recording police officer is that what occurred was an act of lawful chastisement.  What occurred would be, in most views, somewhat trivial.  There is no assault.  There is no unlawful act.  There is simply the father losing his temper with the child, as one imagines may happen several times per day at any given sports match.  It is, however, in the context of two parents in high conflict, a child suggested to require investigation with respect to anxiety and various other potential conditions, each parent critical of the other for not fully or properly exploring those issues and ready to document and seek to apportion culpability for any perceived errant behaviour.  In the context of a child who has, for at least 18 months and well prior to these suggested events, expressed fears and concerns, particularly (and curiously in light of the child’s complaints that he is not taken to sports games by his father), the event having occurred on one rare occasion when the father took the boy to sports

21. Those events are related as they would appear to be significant in relation to the case that the mother would advance in the event that any of the latter complaints of breach proceed.  I am satisfied that the complaints can and should proceed.  There is an arguable case to be made out by the father.  It does not impact upon or impinge upon the mother’s ability to present a reasonable excuse in a case in reply.

1. One aspect of the matter that it is important to observe is that both parties have an obligation, and particularly the father, as the prosecutor of the Application for Contravention, to lead evidence as to all matters that would be within their knowledge.  Clearly, it has occupied significant discourse at the bar table as to what material was known to the parties or either of them.  The father has been aware, for at least 14 months past, that the child has expressed the very matters that the mother complains of and which are recorded in Ms E’ notes, a suggested desire to not attend and a suggested concern that he is not and will not be taken to sports.  The child is suggested to have expressed concerns and fears and phobias, however they might be described and without intending any particular weight to be attached to the expression, in spending time with his father.  They are matters that the father is clearly aware of as the letters from the child’s referring GP to Ms E are shared with both parents. 

2. They are matters, thus, which the mother can, once the hearing proper of those portions of the application for contravention occurs, cause the father to be the subject of cross-examination.  The mother can lead evidence.  There can be full testing of evidence.  The parties can use the Court and this litigation to perpetrate their disdain for each other and wreck chaos upon their children.

3. For those reasons I am satisfied that, at this point, orders should be made as follows.

I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of Judge Harman

Associate: 

Date:  21 October 2019