WALLINGTON & WALLINGTON (No.4)
[2020] FCCA 2167
•7 August 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WALLINGTON & WALLINGTON (No.4) | [2020] FCCA 2167 |
| Catchwords: FAMILY LAW – Contravention – consideration of reasonable attempt to comply – positive obligation to encourage the children. |
| Legislation: Family Law Act 1975 (Cth), ss.70NAB, 70NAC |
| Cases cited: Stevenson & Hughes (1993) FLC 92‑363 |
| Applicant: | MR WALLINGTON |
| Respondent: | MS WALLINGTON |
| File Number: | NCC 1402 of 2014 |
| Judgment of: | Judge Dunkley |
| Hearing dates: | 3 February 2020 and 3 July 2020 |
| Date of Last Submission: | 3 July 2020 |
| Delivered at: | Parramatta |
| Delivered on: | 7 August 2020 |
REPRESENTATION
| The Applicant appeared in person on 3 February 2020 |
| Counsel for the Applicant: | Mr J. Horowitz on 3 July 2020 |
| Counsel for the Respondent: | Ms L. Hamilton |
| Solicitors for the Respondent: | Michael Jokovic & Associates |
ORDERS
Ms Wallington is found to have contravened without reasonable excuse orders made as set out in Counts 5, 7, 9 and 11.
The contraventions in Count 9 is less serious contraventions.
Counts 1, 2, 3, 4, 6, 8, 12 and 13 are dismissed.
The contraventions proven with respect to Counts 5, 7 and 11 are each more serious contraventions.
Pursuant to s.70NBA:
(a)Order 6 made on 25 January 2017 is discharged.
(b)The father shall have Skype communication with each of the children X born in 2010 and Y born in 2012 each Tuesday between 5.30pm and 6.00pm. The mother shall ensure a Skype enabled device is available to the children and is operating. The mother shall answer the Skype call and positively direct, verbally and if necessary appropriately physically, each child to become visible on the Skype enabled device.
The case is listed for sentence hearing and submissions at 2.15pm on 27 August 2020.
IT IS NOTED that publication of this judgment under the pseudonym Wallington & Wallington (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
NCC 1402 of 2014
| MR WALLINGTON |
Applicant
And
| MS WALLINGTON |
Respondent
REASONS FOR JUDGMENT
Mr Wallington (the applicant) and Ms Wallington (the respondent) are the parents of X born in 2010 and Y born in 2012.
By Amended Application for Contravention filed on 14 November 2019 the applicant alleges 13 counts of contravention of parenting orders by the respondent.
On the commencement of the hearing the respondent was on 3 February 2020 charged with 13 counts.
The respondent entered pleas, admitted three of the counts and denied the other 10 counts.
The applicant relies on his affidavit affirmed 14 November 2019.
An audio recording of Skype calls was played and marked as an exhibit.
The applicant was cross examined.
A prima facie finding was made on 3 February 2020 relevant to each of the counts being contested.
The respondent in giving her evidence sought to rely on parts of an affidavit filed 30 January 2020, being paragraphs 1-8 (inclusive), paragraphs 24‑34 (inclusive) and paragraphs 37‑41 (inclusive).
The applicant then sought an adjournment to get legal advice and to consider the affidavit, before commencing his cross examination.
That adjournment application was consented to and the hearing of the Amended Contravention Application was adjourned part heard to 27 March 2020. COVID-19 intervened. On 27 March 2020 parties appeared by telephone. A number of orders and directions were made and relevantly the Contravention Application was listed on 3 July 2020 for the continuation of the hearing.
On resumption of the hearing on 3 July 2020, the respondent was cross examined. A transcript of 2 of the Skype calls was made available.
Alleged Contraventions
The alleged contraventions can be broadly grouped as follows:
Skype Calls – alleged contraventions
Count 1
That Ms Wallington without reasonable excuse at 6pm on 6 August 2019 contravened order 6 made on 25 January 2017 by not causing, allowing and/or facilitating the children X and/or Y to spend time with Mr Wallington.
Plea: Deny
Count 2
That Ms Wallington without reasonable excuse at 6pm on 13 August 209 contravened order 6 made on 25 January 2017 by not causing, allowing and/or facilitating the children X and/or Y to spend time with Mr Wallington.
Plea: Deny
Count 3
That Ms Wallington without reasonable excuse at 6pm on 27 August 2019 contravened order 6 made on 25 January 2017 by not causing, allowing and/or facilitating the children X and/or Y to spend time with Mr Wallington.
Plea: Deny
Count 4
That Ms Wallington without reasonable excuse at 6pm on 3 September 2019 contravened order 6 made on 25 January 2017 by not causing, allowing and/or facilitating the children X and/or Y to spend time with Mr Wallington.
Plea: Deny
Count 6
That Ms Wallington without reasonable excuse at 6pm on 17 September 2019 contravened order 6 made on 25 January 2017 by not causing, allowing and/or facilitating the children X and/or Y to spend time with Mr Wallington.
Plea: Deny
Count 8
That Ms Wallington without reasonable excuse at 6pm on 15 October 2019 contravened order 6 made on 25 January 2017 by not causing, allowing and/or facilitating the children X and/or Y to spend time with Mr Wallington.
Plea: Deny
Count 12
That Ms Wallington without reasonable excuse at 6pm on 5 November 2019 contravened order 6 made on 25 January 2017 by not causing, allowing and/or facilitating the children X and/or Y to spend time with Mr Wallington.
Plea: Deny
Count 13
That Ms Wallington without reasonable excuse at 6pm on 12 November 2019 contravened order 6 made on 25 January 2017 by not causing, allowing and/or facilitating the children X and/or Y to spend time with Mr Wallington.
Plea: Deny
Time with periods
Count 5
That Ms Wallington without reasonable excuse at 6.30pm on 6 September 2019 at McDonalds Town B contravened order 2(b) 23 May 2019 by not causing, allowing and/or facilitating the children X and/or Y to spend time with Mr Wallington.
Plea: Admit
Count 7
That Ms Wallington without reasonable excuse at 12 noon on 28 September 2019 at McDonalds Town B order 2(c) made on 23 May 2019 by not causing, allowing and/or facilitating the children X and/or Y to spend time with Mr Wallington.
Plea: Deny
Count 11
That Ms Wallington without reasonable excuse at 6.30pm on 1 November 2019 at McDonald Town B contravened order 2(b) made on 23 May 2019 by not causing, allowing and/or facilitating the children X and/or Y to spend time with Mr Wallington.
Plea: Admit
Alleged breach of parental responsibility orders
Count 9
That Ms Wallington without reasonable excuse at 4 September 2019 contravened orders 2 and 11 made on 25 January 2017 by not consulting Mr Wallington about appointments for the children and by not advising Mr Wallington the telephone number relevant to the appointments made for the children.
Plea: Admit
Count 10
That Ms Wallington without reasonable excuse at 17 October 2019 contravened orders 2 and 11 made on 25 January 2017 by not consulting with the applicant Mr Wallington prior to making appointments for the children X and Y and by not advising Mr Wallington of the telephone number for the appointments thereby denying Mr Wallington the possibility of attendance at the appointments.
Plea: Deny
Relevant Orders
The counts relevant to Skype calls relate to the following order made on 25 January 2017:
(6)The father shall have Skype communication with the children during term time on each Tuesday, such communication to occur sometime between 6PM and 6:30PM. The mother shall ensure a Skype enabled device is available to the children and operating at such time.
The counts relevant to the time with orders relate to the following orders made on 23 May 2019:
(2)The children X born in 2010 and Y born in 2012 shall spend time with the father as follows:
(b)From 6.30pm on the first Friday to 3.30pm the following Sunday of the months of February, March, May, June, August, September, November and December (not including June 2019).
(c)For the first week of the Term 1, 2 and 3 school holidays from 12 noon on the first Saturday to 12 noon of middle Saturday.
The counts relevant to parental responsibility relate to the following orders made on 25 January 2017:
(2)The parties shall have equal shared parental responsibility for X, born in 2010 and Y born in 2012.
(11)That each party is to advise the other of the name, address, telephone number and appointments with doctors, dentists, optometrists, psychologists, psychiatrists, counsellors and therapists for the children, or either of them, and that either party be at liberty to attend said appointments.
Evidence
With respect to each of the relevant orders, the respondent conceded she had knowledge of the relevant order and understood the meaning of the orders.
Alleged Skype Contravention
On each date being, 6 August 2019, 13 August 2019, 27 August 2019, 3 September 2019, 17 September 2019 and 15 October 2019, 5 November 2019 and 12 November 2019 the applicant placed a call by Skype from his device to the mother’s device.
On each occasion the call was accepted by the mother.
In exhibit A she can be heard calling out to the children on each occasion using various of the following:
X
or
Girls
or
Dad’s on the computer
The father submits hearing in the first file very faintly (or sotto voce) the mother prompting the children “say no”.
I had difficulty hearing the part and could not on listening to the audio determine if it was the mother saying this or one of the children talking to the other child.
The father was insistent it was the mother.
I ordered the provision of a transcript.
The mother prepared a transcript from a recording. It is exhibits H and G. She concedes it is her saying “say no”.
About the Skype calls, except for count 12, the respondent says the device upon which the Skype call is received is a computer at her home which is located in the lounge room. She turns it on before the appointed time, calls out to the girls when the call comes through from the father “computers on” or “dad’s on the computer” and calls out “X” and “Y”.
She says the girls might be at these times in their bedroom using their iPad, in the lounge room watching television or outside playing.
She says on each of the occasions subject to complaint, both girls said “I don’t want to talk” or a variant thereof.
She provides no further encouragement to X and Y nor discouragement and leaves it to each of them as to whether they go to the computer to engage in the Skype communication. They have not.
She has she said secretively recorded these calls.
Exhibit G is a transcript of the recording of the Skype call on 13 August 2019 (count 2).
Exhibit H is a transcript of the recording of the Skype call on 27 August 2019 (count 3).
The recordings are both short, 22 seconds (exhibit G) and 11 seconds (exhibit H).
In exhibit G the transcript records the mother 3 times (whispering) “just say no”. She denies this is scripting the children. She says the children weren’t aware she was recording and were shaking their heads to mean “no” and so as to have that apparent on an audio only recording she prompted them to verbalise their action and so said to them “say no”. By so doing she says, she was not directing a response but rather having the girls articulate the response they had already formed.
Count 12 relates to a Skype call on 5 November 2019. The parents had been in court at Parramatta. The bench sheet reveals the court appearance ended at 3pm.
The mother was driving home. The children and maternal grandmother were in the car when the Skype call came in on her iPad. The iPad was given to one of the girls in the back seat, who put it down and did not engage with the father.
Alleged Time with Contraventions
Count 5 relates to 6 September 2019. A contravention is admitted.
Count 7 relates to a time with period to start on 28 September 2019.
On 28 September 2019 the mother drove X (called X) and Y to the changeover location at McDonalds at Town C. The mother said the girls were objecting verbally and by crying to going for most of the 4 hour trip by car. She describes the journey as upsetting and stressful.
On arrival the mother drove into the car park and drove towards where she saw the father to be standing and waiting. As she drove closer he approached the car. She stopped the car. She left the engine running.
The parents agree neither child got out of the car and went with the father.
The father and X spoke to each other through an open car window.
It was clear the father wanted to spend time with the children and said so.
It was clear X was verbally indicating she did not want to spend time with the father.
The father denied becoming angry or yelling or being aggressive.
It is agreed the mother never parked the car in a car bay. She never turned off the car ignition.
It is agreed the father and X spoke and X said something like “I’m not coming”. The father said “you have to come with Dad”. X became agitated according to the mother. The father does not accept X was agitated. X then said twice loudly to her mother words to the effect “just go mum, drive, just drive”.
The mother then drove off with the children and they did not spend time with the father. The whole incident from stopping the car to driving off took about 1 minute.
Allegations Relevant to Parental Responsibility
The children consult a psychologist. The mother books the appointments. The parents have had some but limited discussions about counselling for the children.
The father annexes to his affidavit emails from the mother about this.
He says she didn’t discuss the children’s attendance with him, merely informing him they would be attending without any consultation or discussion between the parents.
The mother says she had sought an appointment and was placed on a waiting list.
At 5.30pm (on 16 October 2019) whilst cooking dinner she received a call offering an appointment the next day arising from a cancellation. She accepted the offer.
She forgot about telling the father until 8.30am the next morning, the day of the appointment. She provided an email then as written notice but did not include the telephone number of the psychologist.
The father who was living in City D alleges breach because there was no phone number provided and insufficient time was allowed for him to attend.
Determination
At the centre of the only “time with” count which is not admitted, is the contention of whether the mother has been sufficiently encouraging of each of the children so as to have a reasonable excuse for non‑compliance.
In Stevenson & Hughes (1993) FLC 92‑363 his Honour Justice Nygh held:
·Access orders impose a positive obligation to encourage access.
·A reasonable attempt to ensure compliance is required.
·An invitation … can be made in a persuasive way or can be made in a manner which implicitly approves of the child’s refusal.
His Honour Justice Fogarty held:
·In every access order there is an implied obligation of the custodian to take reasonable steps to ensure that the access in an order takes place.
·It is not a sufficient discharge of a custodian’s obligation to point to words and actions to say, in effect “You see I tried. But the child does not want to go and therefore to figuratively fold their arms as if that were the end of the matter”. Theirs is an active role with an obligation to positively encourage …
Reasonable encouragement is relevant because of s.70NAC(a)(ii) “made no reasonable attempt to comply with the order”.
The mother concedes knowledge of the orders and concedes she needed to adequately encourage the children.
Driving children for many hours to comply with time with orders does not of itself show “reasonable attempt” to comply with the order at the heart of count 7. More is necessary at the end of the trip at the appointed changeover place.
On 28 September 2019 to satisfy reasonable attempt with respect to count 7 the mother would have to have parked her car, turned off the engine and told each daughter to alight. If refusal ensued she then needs to herself alight the car, open the door for the children, if necessary unbuckle a seat belt and verbally sternly require the girls to get out of the car.
Any refusal should then result in a request to the father to encourage the children and standing away whilst this happened.
Stopping but not parking the car and not turning off the engine and then quickly driving off is not a reasonable attempt. Even if the driving off follows a verbal request from the child.
Thus count 7 is proven and the mother is found to have contravened the order without reasonable excuse because she has not actively encouraged either X or Y to spend time with their father.
This is a more serious contravention as are the two other admitted counts given each breach is so proximate to the date the order was made and this time with period is so intrinsic to the maintenance of the children’s relationship with their father, which is a circumstance important to their wellbeing.
With respect to the Skype counts, other than count 12, the mother has available a Skype enabled device. She has turned it on at the appropriate time. She has told the children the father has called in. She has met her obligations pursuant to order 6 with respect to reach of the Skype counts. She need do nothing further in the terms of the order.
With respect to count 12 the iPad Skype enabled device was handed to one of the girls. She need do nothing further in terms of the order.
No breach of any of the Skype counts is proven.
The mother’s guiding of the children to “say no” is not relevant to the terms of the order. The order is about opportunity to have communication and facilitatory of method to be used.
As a consequence it has not been established on the balance of probabilities that each of counts 1, 2, 3, 4, 6, 8, 12 and 13 has been contravened. Each count is therefore dismissed.
A variation of the order will be necessary pursuant to s.70NBA to place upon the mother a more active role, as an aide to having effective Skype communication.
It is in the children’s best interest, given their age and stage of development, to communicate with their father in periods between in person visits to enable them to maintain their relationship with him. This was so when the original order was made for reasons then given. It remains so at this time, especially given the distance between homes.
Count 10 is a technical oversight, I accept caused by inadvertent oversight.
This count for the preceding reasons is not established and will be dismissed, as it is a count about providing notice and nothing more. Attendance can be at appointments by telephone or video conferencing and doesn’t have to be “in person”.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Dunkley
Associate:
Date: 7 August 2020
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