Weerasinghe and Tamasine

[2017] FamCA 507

FAMILY COURT OF AUSTRALIA

WEERASINGHE & TAMASINE [2017] FamCA 507

FAMILY LAW – CHILDREN – contravention application filed by father – mother admits contravention but argues reasonable excuse – reasonable excuse found – application dismissed – orders made for parties to file an application to vary or discharge current parenting orders  

Family Law Act 1975 (Cth)

APPLICANT: Mr Weerasinghe

RESPONDENT: Ms Tamasine

FILE NUMBER: MLC 8742 of 2014

DATE DELIVERED: 18 July 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 4 July 2017

REPRESENTATION

THE APPLICANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Nehmy

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers

Orders

1. The father’s Application for Contravention filed 9 March 2017 be dismissed.

2. Until further order paragraph 4 of the orders made 20 June 2016 be and is hereby suspended.

3. By 4.00 pm on 22 September 2017 the parties file and serve any Initiating Application for the discharge or variation of the orders made on 20 June 2016 or paragraph 2 of these orders such applications (if any) to be returnable on 19 October 2017.

4. By 4.00 pm on 6 October 2017 the parties file and serve any Response to any Initiating Application filed pursuant to paragraph 3 herein.   

5. The matter be otherwise adjourned for hearing in the Senior Registrar’s Duty List at 10.00 am on 19 October 2017 save that in the event that neither party files an Initiating Application by 22 September 2017 that hearing date be vacated.

6. All questions of costs be reserved for determination.

7. By 4.00 pm on 18 August 2017 the mother file and serve any written submissions in support of any application for costs arising out of or incidental to the father’s Application for Contravention filed 9 March 2017.

8. By 4.00 pm on 4 September 2017 the father file and serve any written submissions in reply to any application for costs.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Weerasinghe & Tamasine has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8742  of 2014

Mr Weerasinghe

Applicant

And

Ms Tamasine

Respondent

REASONS FOR JUDGMENT

1. On 20 June 2016 the father, who is the applicant in the contravention proceedings listed before me and the mother consented to final parenting orders (“final orders”) with respect to the two children of their marriage, B who is almost 16 years of age and C (“the child”) who is 14 years of age. Those orders provided that the children live with the mother and that C spend time with the father from 4.00pm on Saturday until the commencement of school on Tuesday each alternate week, for six days in each of the first and second school term holidays and eight days in the third school term holidays on dates and times to be agreed and in default of agreement, for the first part of that holiday period, for three specified periods during the long summer holidays, on the child’s birthday and as otherwise agreed. The orders further provided that B spend time with the father pursuant to her wishes.

2. The father and the mother were married in 1999 and separated in early 2014. The final parenting orders made by consent concluded the lengthy proceedings commenced in this Court following the parties’ separation. It is fair to say that notwithstanding those orders, there is a significant level of distrust between the parties and ongoing conflict.  

3. On 9 March 2017 the father filed his Application for Contravention alleging that the mother had breached the final orders on 20 December 2016, 11 February 2017 and 25 February 2017. It is common ground that the child has not spent time with the father pursuant to the final orders since late January 2017.

4. Pursuant to s 70NAC of the Family Law Act 1975 (Cth) (“the Act”) a person is taken to have contravened a parenting order if and only if he or she has intentionally failed to comply with that order or made no reasonable attempt to comply with the order. The onus is on the applicant to establish on the balance of probabilities that the order has been contravened. Although the mother’s case appears to be that she did everything she could possibly have done to encourage the child to spend time with the father on the three occasions the father alleges she failed to comply with the orders, she conceded that she had contravened the order. It is her case that she had a reasonable excuse for doing so. In these circumstances, the onus of proof shifts to the mother to prove on the balance of probabilities that she had a reasonable excuse on each of the three occasions she concedes she has contravened the final orders.

5. Section 70NAE of the Act sets out various circumstances, albeit the Court is not limited to those circumstances, where a person may be taken to have a reasonable excuse for contravening an order.

6. On 20 December 2016, the date of the first of the three contraventions, the father deposes that he attended at the mother’s home to collect the child in accordance with the orders. He annexed to his affidavit filed on 9 March 2017 the text of emails he sent to the mother at that time. He further deposed that he left the mother’s home without the child at approximately 10.26 am.

7. Whilst the mother did not dispute that the father attended at her home or sent the emails he deposed to, it was her evidence that the child’s relationship with the father was fragile and that since October 2016 it had become increasingly “fractured and aggressive”. She deposed to emails passing between her and the father commencing on 22 October 2016 in which she advised the father of the child’s reluctance to spend time with him, her advice to him that he should be spending time with the father and her requests for the father to speak to the child. She also deposed that the father had forwarded an email she had sent to him to the child adding as follows:

   Your mum and I both agree u (sic) should be spending the weekend with me.  See mums email below.

   Please call me to pick u (sic) up or walk here if you prefer.

   Dad

8. The child replied to the father copying the mother into that email as follows:

   You don’t get it do you, I don’t want to go to your house.

9. The mother says that on 18 December 2016, in anticipation of the child going to spend Christmas with the father pursuant to the final orders, she sent an email to the father which read as follows:

   [C] is due to go to you on 20 Dec to spend Christmas. I have talked to him many times that it’s important for him to go to you, and in fact he needs to go. He refuses to go again. This pattern should not continue. I asked you to talk to [C] many times. Please talk to [C]. There is no need to respond to my email.

10. The mother says that when the father arrived outside her home on 20 December 2016 she said to the child words to the effect of “Go outside, your father is here to see you”, “You have to go with your father today” and “Go and talk to your father”. The child’s response was that he did not want to see the father.

11. The mother said that the child told her he would call his father and tell him why he did not want to see him, that she observed him making approximately eight phone calls but that the child told her that the father was not answering the phone. The father conceded in cross-examination that the child had called him a number of times but that he had not answered those calls.

12. The mother said that after she told the child again that he should go outside and talk to the father, he went outside and approached the father’s car but came back approximately five minutes later and said words to the effect that he had “tried but he wouldn’t talk to me”.

13. The mother then deposed to exchanging the following text messages with the father on 21 December 2016:

    [The father]: I am here to pick up C. I am waiting out the front of [mother’s address]. [Mr Weerasinghe].

    [The mother]: You will need to speak to him. I told him that he will have to go with you. I will get him to come out now. You will need to talk to him and sort out issues.

    [The mother]: [C] said he went outside to talk, but you refused to talk. The situation doesn’t help. You and [C] need to talk.

    [The father]: If [C] didn’t want to go to school, you would make him do so. This is not for negotiation. I will wait 5 more minutes.

    [The father]: It is clear that you have not supported [C] spending time with me as per court orders. I have waited 30 minutes. It is not fair to [C] to be put in this situation. [Mr Weerasinghe].

    [The mother]: I completely and totally disagree.

    [The mother]: I absolutely believe that [C] has to go with you as written in orders. It’s your responsibility too to make sure that [C] goes to you. I asked many times to talk to [C]. It’s important to follow court orders, but for your relationship with [C], you will need to talk to [C]. Perhaps you could ask [C’s] counsellor [Mr E] for help.

14. The father did not dispute the mother’s version of what occurred on that day and conceded in relation to this and the other contraventions, that he was not in a position to dispute her evidence about what she had said to the child or the steps she said she had taken to encourage the child to spend time with him. My observations of the mother in the witness box was that she was a forthcoming witness doing her best to truthfully answer the questions she was asked. I accept her evidence.

15. The father deposed that on 11 February 2017 he arrived at the mother’s home at approximately 4.00 pm to collect the child pursuant to the final orders and he annexed copies of the email he sent to the mother. It was his evidence that he left the mother’s home without the child.

16. The father annexed to his first affidavit a transcript of an email message he sent to the mother at 4.12 pm that day as follows: “Still waiting for [C]”.  The father did not annex either his earlier text message to the mother or the messages she sent to him which were set out by the mother in her affidavit as follows:

    [The father]: Hi [Ms Tamasine], I am waiting outside [the mother’s address] for [C]. [Mr Weerasinghe]

    [The mother]: [C] is refusing to go. You should talk to him.

    [The father]: Still waiting for [C]. [Mr Weerasinghe].

    [The mother]: I have told [C] to talk to you many times. I have also asked you to talk to [C]. Neither of you are prepared to ring up and talk to each other. You should talk to [C].

17. The mother also deposed that she told the child to go outside and speak to his father but that he refused to do so. She said the father left without the child at approximately 4.30 pm.

18. The father deposes that on 25 February 2017 he arrived at the mother’s home to collect the child at 4.02 pm and that again he sent text and email messages to the mother which he annexed to his first affidavit. He again did not annex the text messages he received from the mother in particular her message that he “...should ring [C] and talk to him”.

19. The mother deposes that at 4.00 pm she said to the child words to the effect that “you have to go to your father” but that the child did not answer and walked away. The mother did not know at the time, but did not dispute the father’s evidence that at 4.05 pm the child sent the father a text message which read “Fuck off” and said that she was shocked at the child’s language. The mother did not dispute the father’s evidence that he left her home without the child.   

20. Although the father has deposed to and said on a number of occasions during the hearing before me that he and the child have a good relationship and that the child enjoys spending time with him, there is no real dispute as to what has occurred, what the child has said to the father or about the child’s reluctance to spend time with the father on the dates in question. Rather, the dispute in this case is what the parties each say about the cause of both the child’s attitude to the father and his refusal to spend time with him. The father’s case is that the mother is attempting to alienate the child from him and the mother’s case is that she has done all that she could reasonably be expected to do in the circumstances to facilitate the child’s time with the father. It is those circumstances which are the key to this case.

21. It is the mother’s case that the problems which lead to the child refusing to spend time with the father on 20 December 2016 and since late January 2017, following his return from spending some eight days with the father, are longstanding. The mother says these are problems which have repeatedly been brought to the father’s attention without any real acknowledgement on the father’s part of those problems.

22. On 20 April 2017 Mr E, who has been providing therapeutic counselling for the child since July 2015, wrote to the father and the mother. In that letter Mr E said as follows:

    ...[I]t is apparent to me that [C] has changed from a polite and compliant boy who conceded to the wishes of his parents (i.e. comply with the parental arrangement) to an opinionated young man who has decided to make his thoughts known. Not only that, [C] has decided to follow through on his opinion with action by currently refusing to visit his father.

    This developmental stage in adolescence is normal and expected, although perhaps it has accelerated somewhat for [C] due to the stress he feels when asked to comply with the court orders for parental arrangement. [C] has expressed to me his very strong opinion that he should no longer be required to visit his father as scheduled by the court ordered parental arrangement. He has very strong and well-articulated reasons for his opinion…

23. Although the father received the letter from Mr E in late April 2017 and the affidavit annexing that letter in early May 2017, he did not give notice, either formally or informally or indicate prior to the day of the hearing, that he wished to cross-examine Mr E. Notwithstanding that lack of notice, the solicitors for the mother, in an abundance of caution, had made enquiries of Mr E as to his availability, but were advised by him that as a result of a family emergency, he would not be available for cross-examination either in person or by other electronic means on the day of the hearing. The father ultimately decided, conceding that it would not be possible to cross-examine Mr E that day, to proceed with the matter without that cross-examination.   

24. Even if the father had had the opportunity to cross-examine Mr E, it was clear from both his affidavit and his submissions that his complaint against Mr E was related primarily to the mother having engaged Mr E without consultation, his lack of expertise with respect to the question of parental alienation and his refusal in early 2016 to conduct joint sessions between the father and the child, rather than his evidence about the child’s current state of mind or attitude to spending time with the father. Significantly in my view the father agreed with Mr E’s description of the child as “a polite and thoughtful young man” and did not dispute his opinion that the child was “expressing strong and well-articulated reasons for his opinion” that he should not be required to visit the father in accordance with a schedule prescribed by the final orders.

25. The father relied upon the fact that the child had spent some eight days with him in January 2017 in support of his assertion that the child’s reluctance to spend time with him is a consequence of parental alienation and that if the mother wanted the child to go with him, she had the necessary authority over him to make him do so.

26. It was the mother’s evidence that although the child had been saying he did not want to spend time with the father during the long summer school holidays in accordance with the orders, she had eventually persuaded him that as it was the father’s birthday he should at least have lunch with him and that although the child had reluctantly agreed, he had thereafter remained with the father for eight days.

27. Whilst this might demonstrate that at least on this occasion the mother was able to persuade the child to go and as asserted by the father, has some authority over the child, in my view it equally supports the mother’s case that she has used her best endeavours to encourage and facilitate the child spending time with the father in accordance with the orders.

28. In my view, the father’s case that the mother does not have a reasonable excuse for contravening the orders ignores the fact that the child, who it is agreed is thoughtful and articulate, is now 14 years old, expressing strong opinions and is no longer prepared to comply with either his mother’s requests or the orders themselves to spend time with the father in accordance with those orders. As Mr E points out to the parties in his letter, the child’s opinion is “further enhanced by the fact that his older sister, [B], is not required to abide by such court orders.”

29. Mr E in his letter to the parties referred to the stress the current arrangements as prescribed by the final orders are causing the child and his concern “that continued stress may become a chronic problem for him”. The mother also deposes that her attempts to facilitate the child spending time with the father have caused them to argue and she is concerned that her relationship with the child is now being damaged by her insistence that he see his father. In my view this is also consistent with Mr E’s evidence as to both the strength of the child’s views and his desire to express his views and have those views respected and is not in the child’s best interests.

30. It is the mother’s case, and I agree, that she should not be required to use physical force to make the child spend time with the father even if it were possible for her to do so, which given his age is unlikely.

31. I am satisfied on the balance of probabilities on the evidence before me that in these circumstances and in the face of the child’s increasing resistance, the mother has a reasonable excuse for having contravened the orders on each of the three occasions the subject of the father’s application.

32. Although understandably the mother is reluctant to engage in further litigation with the father and the father’s case is that the orders that are the subject of these proceedings should remain in force, I am not satisfied on the evidence before me and in particular the evidence of Mr E, that to simply dismiss the contravention application and leave the orders of 20 June 2016 in place would be in the child’s best interests.

33. Mr E’s letter suggests that the child wants a more relaxed approach to spending time with his father, rather than spending time with him as prescribed by the orders and it is not the case that the child does not want to spend any time with the father. Mr E in his letter said as follows:

    It is my opinion that [C’s] future health and well-being are likely to be enhanced if he is able to choose how and when he might visit his father. I believe that [C] would benefit if there were no court orders for a parental arrangement constricting him to certain scheduled times for visitation to his father. I believe that, in time, a more relaxed approach to seeing his father might actually enhance the possibility of a good future father-son relationship.

34. It is hard to see how in those circumstances leaving orders in place which would provide for the father to attend at the mother’s home for the purposes of collecting the child each alternative week in the event that the father chose to do so and leaves open the possibility of further contravention applications, would be in the child’s best interests. This is, in my view, a significant issue particularly in circumstances where the father concedes the child would be unlikely to go with him.

1. Counsel for the mother submitted that one option would be for the Court to suspend the orders on an indefinite basis. Whilst Mr E recommends that the orders be discharged, and although I am satisfied that the orders should be suspended at least in the interim, I am not satisfied that I should make what would be in effect a final order discharging the orders for the child’s time with the father in circumstances where the evidence has been directed and limited to the contravention application, albeit that encompasses the welfare of the child.

2. In conclusion, I am satisfied that it is in the best interests of the child to suspend the 20 June 2016 orders pursuant to s 70NBA of the Act and adjourn the matter to the Senior Registrar’s Duty List, removing the pressure upon the child at least until the parties can file applications for parenting orders and those applications are properly before the Court or otherwise reach agreement. I am hopeful that, as suggested by Mr E, the child having been relieved of the pressure of the orders will choose to spend some time with the father but that even if he does not do so, the father will reflect upon the child’s age and his wishes, irrespective of what may be the reason for the child expressing those wishes, when he considers what, if any, application to make and in particular reflects upon the likely impact of further litigation upon his relationship with the child and the child’s welfare generally.

3. On that basis, I propose to make orders for the filing of applications by either party to discharge or vary paragraph 4 of the final orders or to discharge my order suspending that order and adjourn the matter to the Senior Registrar’s Duty List in approximately three months. If no applications are filed, that hearing date is to be vacated.    

I certify that the preceding thirty seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 18 July 2017.

Associate: 

Date:  18 July 2017