FAMILY COURT OF AUSTRALIA
| WALTERS & WALTERS | [2008] FamCA 720 |
| FAMILY LAW – CHILDREN – With whom a child lives |
| APPLICANT: | Ms Walters |
| RESPONDENT: | Mr Walters |
| INDEPENDENT CHILDREN’S LAWYER: | Jaquie Palavra |
| FILE NUMBER: | TVC | 156 | of | 2007 |
| DATE DELIVERED: | 25 August 2008 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Monteith J |
| HEARING DATE: | 1 and 2 July 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Anne Demack |
| SOLICITOR FOR THE APPLICANT: | Boulton Cleary and Kern |
| COUNSEL FOR THE RESPONDENT: | Mr Michael Fellows |
| SOLICITOR FOR THE RESPONDENT: | MacDonnells Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Justin Greggery |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Jaquie Palavra, Legal Aid Queensland |
Orders
1. The Application in a Case filed on 26 June 2008 be dismissed.
2. Liberty to apply with respect to costs.
IT IS NOTED that publication of this judgment under the pseudonym Walters & Walters is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT TOWNSVILLE |
FILE NUMBER: TVC 156 of 2007
| Ms Walters |
Applicant
And
| Mr Walters |
Respondent
REASONS FOR JUDGMENT
Introduction
This is the return of an Application in a Case filed on 26 June 2008 by the mother in which she seeks orders that the orders made on 15 February 2008 be discharged and in their place, that the parents have shared parental responsibility and that the children live with the mother and father on an equal shared care, week-on-week-off basis. It is proposed that the equal shared care arrangement continue throughout the whole of the year including all school holiday periods other than Christmas, and that for the Christmas school holiday periods, the children spend one half of each Christmas school holiday period with each parent. There are further provisions with respect to special days, telephone communication and the like.
The Response by the father seeks that the Application in a Case be dismissed and an order for costs.
If I were to dismiss the Application in a Case, the effect would be that the parenting orders made on 15 February 2008 would remain in force until the trial of the proceedings.
Because of the difficulties that this case raises, I offered the parties a speedy trial which could have been held in September rather than proceeding with this Application in a Case. The mother, through her Counsel, declined that offer and decided to proceed with the Application in a Case.
orders of 15 february 2008
Orders were made on 15 February 2008 after a hearing that occupied 13, 14 and 15 February.
I set out hereunder the terms of the Orders that were made at the conclusion of that hearing:
IT IS ORDERED THAT:
1.Pursuant to Section 70NFB, that [Ms Walters] must forthwith enter into a Bond for a period of two (2) years in a sum of two thousand dollars ($2,000.00) that she comply with the terms of these Orders.
2.The Order of this Court made on 11 December 2007 in so far as it…
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Details
- Case
- [2008] FamCA 720
- Decision Date
CaseChat Overview and Summary
This matter came before Monteith J concerning contravention proceedings initiated by the applicant husband against the respondent mother. The dispute centred on the mother's alleged contravention of a consent order made on 11 December 2007, which stipulated that the subject children should reside with each parent for half of all school holiday periods. The husband contended that the mother's admissions of contravening this order on three occasions constituted serious contraventions under section 70NFA of the relevant Act, requiring her to have shown a serious disregard for her obligations.
The court was required to determine whether the mother's conduct amounted to a serious contravention of the primary order, specifically whether she had demonstrated a serious disregard for her obligations. This involved assessing the credibility of the mother's assertions regarding allegations made by the children, particularly in light of previous family reports that raised concerns about parental conflict influencing the children's statements. The court also had to consider the context of the mother's prior contempt proceedings against the father, which were based on allegations that were subsequently cast into considerable doubt.
Monteith J found that the mother had not encouraged or supported the father's time with the children since their separation and that she had either accepted or fabricated allegations made by the children. The court noted that the mother was an unimpressive witness whose credibility was significantly undermined during cross-examination. Crucially, the court found that the mother's actions, including her refusal to allow the father holiday time and her pursuit of contempt proceedings based on questionable allegations, constituted a wilful and deliberate attempt to resist carrying out the primary order. This conduct was deemed to be a serious contravention, drawing on the principle that more serious sanctions should be invoked for persistent disregard or a clearly wilful and deliberate attempt to resist an order, as outlined in *Elspeth & Peters & Ors*.
Consequently, the court ordered that the Application in a Case filed on 26 June 2008 be dismissed. Liberty was granted to apply with respect to costs. The court also ordered that the costs payable by the mother to the father be taxed on an indemnity basis, finding that the mother's proceedings were commenced or continued in circumstances where she, properly advised, should have known she had no chance of success.
The court was required to determine whether the mother's conduct amounted to a serious contravention of the primary order, specifically whether she had demonstrated a serious disregard for her obligations. This involved assessing the credibility of the mother's assertions regarding allegations made by the children, particularly in light of previous family reports that raised concerns about parental conflict influencing the children's statements. The court also had to consider the context of the mother's prior contempt proceedings against the father, which were based on allegations that were subsequently cast into considerable doubt.
Monteith J found that the mother had not encouraged or supported the father's time with the children since their separation and that she had either accepted or fabricated allegations made by the children. The court noted that the mother was an unimpressive witness whose credibility was significantly undermined during cross-examination. Crucially, the court found that the mother's actions, including her refusal to allow the father holiday time and her pursuit of contempt proceedings based on questionable allegations, constituted a wilful and deliberate attempt to resist carrying out the primary order. This conduct was deemed to be a serious contravention, drawing on the principle that more serious sanctions should be invoked for persistent disregard or a clearly wilful and deliberate attempt to resist an order, as outlined in *Elspeth & Peters & Ors*.
Consequently, the court ordered that the Application in a Case filed on 26 June 2008 be dismissed. Liberty was granted to apply with respect to costs. The court also ordered that the costs payable by the mother to the father be taxed on an indemnity basis, finding that the mother's proceedings were commenced or continued in circumstances where she, properly advised, should have known she had no chance of success.
Orders
Orders of the court
1. The Application in a Case filed on 26 June 2008 be dismissed.
2. Liberty to apply with respect to costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Because I think it is important for a better understanding of the proceedings that have been brought before me by way of Application in a Case, I set out hereunder my Reasons for Judgment delivered on 15 February 2008 with respect to the contravention proceedings and the indemnity order with respect to costs.Reasons for Judgment1.This is an application by the Applicant husband in contravention proceedings filed on 23 January 2008 against the respondent mother to treat the admissions by the mother that she contravened the primary order made by consent on 11 December 2007 on three separate occasions as serious contraventions under section 70NFA. It is not contended that a previous order has been made that would satisfy section 70NFA(2)(a) so therefore I have to be satisfied that the mother behaved in a way that showed a serious disregard of her obligations under the primary order. 2.The primary order provided, inter alia, that the subject children should live with each parent for one half of all school holiday periods. Since separation in December 2006 the father had not had the children for any of the school holidays or for any time of the Christmas holidays in 2006. Although the mother asserted that she was prepared to allow the father time with the children at school holidays there is not one piece of correspondence that confirms that was her position.3.Although the father had requested half the school holidays over the Christmas/New Year 2007/2008 the mother did not agree. The father brought an urgent application before me on 11 December 2007, in effect at one minute to midnight, seeking half holiday time and after negotiations that lasted most of the day and involved the independent children's lawyer, who supported the half holiday time, a consent order was made late in the day of 11 December 2007.4.On the evidence I am persuaded that the mother has not encouraged or supported the father having time with the children since separation. Further, she has either accepted wild allegations made up by the children or has fabricated such allegations. On the evidence I am unable to decide which. However she was a most unimpressive witness whose credibility was left in tatters by the end of the cross-examination.5.It is in this context that the breaches of the order took place. The father had given to the Court an undertaking that he would not allow the children to have any contact with [Ms N], his present partner, or Ms N’s three children and would not allow or permit the children to be taken to [R], the home of Ms [N]. 6.This undertaken was given on 21 November 2007. Its relevance is that the child, [L], nearly eight, has made allegations of a sexual nature against [Mr M], one of the children of Ms [N]. These allegations are being dealt with by the appropriate authorities and I do not wish to say anything about them which may prejudice or affect their outcome, suffice it to say that the mother alleges that the children, [L], nearly eight, and [K], six, told her that they were taken to [Ms N]'s home by their father and his mother in their father's car; that they sat in the back and that [Mr M] came and spoke to [L] saying he was, "dead meat", for having spoken to the police and spat on him, and then [Ms N] and their father came out of the house and [Ms N] sat in the back of the car with them and opened a present given to her by the father for her birthday. 7.The mother alleges this took place on the Friday, which was 14 December 2007 and by the Monday, 17 December a letter had been written by her solicitors to the father's solicitors alleging a breach of the undertaking and denying the father time with the children over the school holidays. By the end of that week it must have been obvious to the mother that something was seriously wrong with the allegations. Not only were they strenuously denied by the father but a stream of statutory declarations had been provided to her establishing that the events could not have happened on the Friday.8The mother had the advantage of seeing two family reports prior to these events. The first dated 6 June 2007 and the second 7 November 2007. In the first the report writer states, at paragraph 80:In summary, [L] presented at the interview ready to launch into an attack on his father which, from the timing and his use of language, in my view, suggests an element of coaching. His claims of his father's using physical discipline seem inconsistent with both parents' remarks about their mode of discipline. The level of distress in making such claims suggests he was struggling to be so negative about his father. At the observation with his father [L] appeared comfortable and was able to assert himself with his father during their game together. In my opinion [L]’s remarks are more likely to reflect his allegiance to his mother and his desire to protect his mother after his exposure to the conflict between the parents both in the pre-separation phase and since. It seems that his perception that his father is establishing a new relationship has been confusing and led to feelings of being betrayed by his father. Hopefully the father can sensitively assist [L] in this regard.9.Then at paragraph 85 the author says:While there are few significant issues distinguishing each parent's capacity in regard to the children the alleged remarks by the children are of some concern and suggest the parents are not protecting the children from their conflict. [L]’s remarks at interview are indicative of him having felt the need to adopt a protective role with his mother and maintain a negative stance with his father. His presentation at interview suggests he is experiencing considerable distress in having to take sides in the conflict. In my view it is imperative that the parents address this immediately and develop some strategies to better protect the children.10.At paragraph 88 she says:[L]’s remarks at interview may have been scripted to some extent but they do suggest he is feeling personally drawn into the parent's conflict in a way that does not suit his developmental needs. If he perceives the father to be forming a new relationship this will add to his current dilemma about taking sides. I would suggest the parents consider using an approved child and family counsellor to assist [L] and [K] with the necessary adjustments they are having to make.11.In the second report of 7 November, comparatively shortly before the orders were made, the same report writer says, at paragraph 34:The mother advised that there are no current provisions within the order for school holidays and she was unaware of the father's request until the second week of the holidays. She added that she strictly adheres to the Court order, which does not include holiday provisions. She stated that she had Sundays off to spend with the children over the holidays or they went to the maternal grandmother. [The mother] stated that if she gave him holiday time the father would request child support adjustments and she is on the cusp of changing levels of child support.12.Then at paragraph 62:At interview [L] was asked to play a game in which he is to give three magic wishes. He stated that his first wish was that, "Dad was dead", because he teases me. He presented this in a spontaneous, slightly off hand, manner rather than with any emotional intensity. His other wishes related to an Xbox game he wanted. This comment is congruent with his remarks at the interview of the family report in June with a softer tone.13.At paragraph 65:As soon as [L] saw me at the father's observation three days later he said he wanted to change his wish, referred to above, so that all of his family stayed alive for ever. [The father] reported separately that [L] had been very dejected the previous day and had indicated he was distressed by something he said at the family report interview. [The father] reported that [L] talked to him about feeling his father was trying to take him away from his mother. From his report [the father] seems to be able to reassure [L] that his parents can share time with him.14.The mother brought contempt proceedings against the father by application filed on 14 January 2008. She did this in spite of all the evidence, which threw considerable doubt on the accuracy of the allegations and she refused the father any time whatsoever with the children over the holiday period as provided for in the primary order. The father brought contravention proceedings on 23 January 2008. 15.There are two further pieces of the jigsaw that I think are important, (a) when asked, after having received all the material that threw considerable doubt on the allegations why she didn't reconsider her position, she replied she had decided on a course of action and was committed it [sic]; and (b) a piece of evidence that I believe was critical evidence was left out of her affidavit and her mother's affidavit. That piece of evidence is that when the grandmother picked the children up on 13 December 2007, the Thursday, they told her that they were late because they had been with their father buying a present for [Ms N]. That day can be confirmed because the father has a banking record to show the purchase. 16.What is critical is that they did not tell their grandmother that they had been taken to [Ms N]'s house, that they had unwrapped the present in the presence of [Ms N] or that [Mr M] had come to the car, said anything to them or spat on [L] as was later alleged. It is inconceivable that if those things had happened they would not have told their grandmother at the same time as they told her about purchasing the present.17.Serious disregard is not defined in the Act. I have been referred to Elspeth & Peters & Ors (2007) FLC 93-341, a decision of the Full Court, where after an examination of a line of authority the Full Court states, at paragraph 66:What seems to be the common thread is that the more serious sanction should only be invoked if there is a persistent disregard of an obligation or a clearly wilful and deliberate attempt to resist carrying out an order.18.In the circumstances set out above and after having heard the mother cross-examined over many hours I have come to the conclusion that this amounted to a wilful and deliberate attempt on her part to resist carrying out the primary order. Therefore I propose to deal with the contraventions under subdivision F of division 15A of part 7 of the Act.And:Reasons for Judgment1.Mrs Pagani of Counsel for the Independent Children’s Lawyer, has advised me that the Independent Children's Lawyer does not seek indemnity costs so that the order that I make with respect to the mother paying costs to the Independent Children's Lawyer will be that they are to be taxed as between party and party in default of agreement. In relation to the costs that I have ordered that the mother pay to the father, I have in the course of argument referred to Colgate Palmolive & Cousins a decision of Shepherd J in the Federal Court of Australia reported at 118 ALR at page 248 and I have quoted from it at some length and I do not propose to do it again.2.One of the decisions that is referred to in Colgate Palmolive is the decision of his Honour Woodward J in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 at 401 and his Honour there said:It is appropriate to consider awarding indemnity costs whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success.3.The general authorities have been followed in the Family Court of Western Australia see Munday and also in Kohan & Kohan (1993) FLC 92-340, a decision of the Full Court. It is clear that I have a discretion in this case to make an order for indemnity costs. In my reasons delivered this morning I made it clear my views about the case and the reason why I decided in the circumstances to deal with this under the subdivision (F) of the Family Law Act as being a more serious contravention because I took the view that the contempt proceedings has had been brought by the mother have been brought on the basis, as I said, that she had either accepted wild allegations made up by the children or has fabricated such allegations.4.The mother was put on notice with respect to indemnity costs by the father by a letter of 3 January 2008. In my view, the proceedings by the mother which are inter dependent upon the contravention proceedings, because the contravention proceedings follow upon her refusal to obey the orders made by the Court on 11 December on the basis of her allegation that the father contravened the undertaking that he had given and that was the basis for the contempt proceedings.5.It appears to me that her contempt proceedings that she embarked on and continued until she discontinued them yesterday, and the consequential defence of the contravention proceedings until she admitted her contraventions yesterday, were commenced or continued in circumstances where she, properly advised, should have known she had no chance of success. In the circumstances I propose to order that the costs to be payable to the father that I have already ordered be as agreed, or in default of agreement, taxed on an indemnity basis.
Ratio Decidendi
Legal Principle Established
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