Wilde and Wilde

[2015] FamCA 1118

FAMILY COURT OF AUSTRALIA

WILDE & WILDE [2015] FamCA 1118

FAMILY LAW – CONTRAVENTION – Where the father alleges the mother breached a consent order by which the father was to spend time with the child in the country where the father resides during school holidays – Where the mother conceded she breached the orders on each of the occasions alleged but said she had a reasonable excuse – Where the mother was found not to have had a reasonable excuse and was placed on a bond with the requirement to lodge security.

Family Law Act 1975 (Cth)

APPLICANT: Mr Wilde

RESPONDENT: Ms Wilde

FILE NUMBER: SYC 1007 of 2012

DATE DELIVERED: 30 November 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 30 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Blackah

SOLICITOR FOR THE APPLICANT: Watson & Watson Solicitors

SOLICITOR FOR THE RESPONDENT: Lukes Law

Orders

Bond orders made 30.11.15

1. The Court is satisfied that in June 2015 and in August 2015 the respondent mother, Ms Wilde born … 1966, without reasonable excuse contravened Order 22.2(b) of the Orders made on 27 September 2012.

2. That in relation to the Court’s finding that the respondent mother has contravened orders under the Family Law Act 1975 made by on 27 September 2012, the respondent mother forthwith enter into a bond for a period of twelve (12) months to be of good behaviour and to comply with all Court orders and to promise pay into Court the sum of $5,500 in the event that she should fail in the compliance with the conditions of the bond.

Additional orders made 30.11.2015

1. Pursuant to s 70NBA Family Law Act and pending further order:

   1.1.By consent, neither parent bring the child B, born … 2007 (the child), into contact in any way whatsoever with Mr C. 

   1.2.During the time that the child spends with his father, the father is to ensure that he accompanies the child into any public bathroom if the child needs to use the toilet, and stays with the child, but not in the cubicle, until he has finished in the bathroom. 

   1.3.During the period of time that the child spends with his father, the father is to ensure that the child is always supervised by either himself of his current partner, Ms D.

   1.4.Both parties attend a post-separation parenting program on the condition that it is possible for the father to undertake that course via electronic means from Country E.  If that can’t be organised, then I’m not requiring the mother to attend that program. 

2. The father’s application for costs be dismissed.

3. I note the mother will withdraw her applications for interim orders that are listed before the Federal Circuit Court in Wollongong on 8 December 2015. 

4. I note that pursuant to the orders that were made in 2012, there is an agreement between the parties that in relation to the December 2015/January 2016 school holidays, the child will spend time with his father between 1 January 2016 and 15 January 2016 with pick up Sydney Airport and return to Country F Airport. 

5. By consent, the orders made 27 September 2012 be varied by adding to order 22(d) the following:

   and the husband will give the mother three months written notice of when and where the child will be spending time with the husband during this period and in the event the husband proposes that the child travel with him overseas than to the place of the husband’s residence overseas the husband provide to the wife no later than three months prior to the proposed travel, details of the itinerary for such travel including flight details and the address, telephone and other contact details of all accommodation in which the child will be staying during the period of travel.

6. By consent, the orders made 27 September 2012 be varied by adding to the beginning of order 27 the words, “Subject to order 22(d)”.

7. Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1007 of 2012

Mr Wilde

Applicant

And

Ms Wilde

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. These proceedings are about the mother’s refusal to facilitate overseas holiday time between a child who had turned eight years of age and his father, in a country which has not adopted the 1980 Convention on the Civil Aspects of International Child Abduction, which I shall call a non-Hague Convention country.  The mother had agreed that the child could travel internationally to what was then in her mind another country which at that time she says she thought was a Hague Convention country, but was not in fact a Hague Convention country

2. The order that she agreed to was made on 27 September 2012 and it relevantly provided at 22.2(b):

   That whilst ever the father resides outside Australia [the child] spend time with the father…

   After [the child] attains the age of 8 years in 2015:…

   For one half of the school holiday periods at the end of terms 1,2 and 3 being the first half in even numbered years and the second half in odd numbered years within or outside Australia.

3. The child turned 8 on 6 May 2015.

4. On 19 October 2015 I found there was a prima facie case established by the father against the mother that she had contravened the order referred to, both in June 2015 (term 2 school holidays) and August 2015 (term 3 school holidays). The mother has asserted that she had a reasonable excuse for contravening the order and the matter was adjourned to allow her to give evidence about that alleged reasonable excuse.

5. The mother filed an affidavit on 19 November 2015 setting out the evidence she relied upon to establish a reasonable excuse and she has given further oral evidence today.

6. The first excuse the mother offers in her written material, although it does not seem to be pressed today, was that the child will be taken to a non-Hague Convention country.

7. The mother asserts that when she first agreed to the consent orders in 2012 the father was working, whilst for the same bank, in a different country from the country in which he currently lives. That country at the time was in fact another non-Hague convention country.

8. At paragraph 6 of her affidavit the mother asserts that “I do have concerns about [the child] traveling to [the country where the father currently lives] which is more of a third world country and does not have a lot of people speaking English”. The mother’s lawyer today did not rely upon this evidence in her final submissions at all, and I take it that the mother no longer presses those assertions as part of her reasonable excuse. I can understand why the mother might do that having listened to the father’s evidence about his current residence, living arrangements and circumstances. In addition, I am mindful of the fact that in 2013 the mother travelled with the child to this country where the father currently lives and the father had the child for an extended period of time with him at his residence in that country.

9. There was an email exchange between the parties in August 2014 where the father told the mother, somewhat curiously, he could not afford to pay for the mother to travel with the child overseas in 2014. The mother’s response in the email was:

   I am happy to give [the country in which the father lives] a miss. It’s dead boring for me.

10. She did not indicate in that email that any of the features or activities in the country in which the father lives created such a risk for the child that there was a reasonable excuse for her to refuse to allow the child to go there in accordance with the orders. Rather, she commented the location in which the father lived was “boring”.  

11. The excuse relating to the father living in a third world country, which appears on the face of the mother’s written material, but as I say not pursued today, in my view offers no excuse whatsoever and the fact that the mother would originally propose it as an excuse creates an impression that her genuine anxiety is leading her to fish around for reasons why she should not comply with the order that has been made.

12. The next excuse that was offered by the mother arises firstly out of the fact that the child has certain vulnerabilities, and secondly connected to that, out of the mother’s belief that these vulnerabilities will not be properly catered for by the father whilst the child is overseas in the father’s care.

13. The first thing to say about that is that the mother does not seem to express similar concerns if the child has extended time with the father in Australia and I can see no logical reason why that distinction would be drawn by the mother.

14. In relation to the child’s vulnerabilities, firstly they relate to sexual activity to which the child has been exposed. It is said by the mother that in 2011 a mutual friend of both the parties was discovered by her with his hands on the child’s genital area. The father has given evidence that he has terminated his friendship with that person and has no intention of the child being brought into contact with that person and in those circumstances he would agree to an order to that effect, if for no other reason than to lessen the mother’s fears that he might do so. There is no continuing risk involving that person and the child, and in any event the full circumstances of that were known to the mother when she entered into the consent orders and at that time she did not require any type of undertaking by the father or an injunctive order of the nature she is now seeking.

15. The other incident of sexual abuse happened between the child and another 6 year old boy in the toilets of the school at which they were both attending in February 2014. Although the school put in place a management plan after the incident, the parents consulted appropriately under the order for equal shared parental responsibility and decided mutually to move the child to his current school. The mother gives evidence there are no plans for the child to have any further counselling in relation to those incidents and that any psychological issue the child has, might be repressed and he may need counselling at a later stage if symptoms develop. The father has indicated today that he would agree, pending further order, for the child not to go into any public toilet areas without his supervision and I accept he was genuine in giving that undertaking. So far as I am aware, it was not an undertaking that the mother sought from the father prior to her unilaterally deciding not to comply with the orders in June and August.

16. The other aspect in respect of the child’s vulnerabilities is the mother’s concern the child may be on an autism spectrum. In 2012 a paediatrician had excluded such a diagnosis. The mother has an appointment to see a different paediatrician next year. She has not consulted with the father about that. He did not know about the referral and I have not been given any evidence as to who actually made that referral to that specialist doctor. The mother has had the child assessed by a psychologist, Ms F. That psychologist did that assessment on 28 October 2015 and there is a report that the father has only just seen in the last week or so from that psychologist. Part of the psychologist’s assessment is based upon a child behaviour check list that the mother has provided the psychologist. The psychologist has identified current difficulties with the child relating to his behaviour and academic ability and has recommended a number of things, including a complete language assessment which assessment would then be forwarded to the school, monitoring by a learning and support team during 2016, and participation in sport and other activities. The psychologist has assessed both the presence of language and behavioural difficulties. Whether the child is eventually diagnosed as being on the autism spectrum will not be known until next year and hopefully the mother will comply with her obligations under the equal shared parental responsibility order so that the father fully participates in that process. The mother herself gives some evidence about observations she has made of the child that forms the basis for her concerns that he might be on the autism spectrum.

17. The mother then seeks to link those concerns with what she says is a reasonable belief that the father cannot deal with any of those problems by way of properly supervising the child. One of the basis’ upon which the mother makes that assertion occurred about 5 years ago, when the 17 year old and 14 year old children of the father’s previous relationship came to visit the parties’ home overseas, during which time the mother says the father went to work on one or two days. The mother does not remember exactly how many days. The father had no recollection of this happening. But even if it did, the mother’s evidence was that she knew that this happened because she was present. I do not consider that behaviour by the father to offer any reasonable basis for a reasonable apprehension that the father may not properly supervision the child. I accept the father’s evidence which was given in a very straightforward way that he intends on these occasions when the child is with him overseas to be there all the time. He conceded on occasions he does attend to emails and I have got no difficulty with him doing that type of work if it is done at appropriate times when the child is there. We are talking about an 8 year old boy who will go to bed at a certain hour. It is something that would regularly happen in intact families with children who might have certain difficulties. The father however has said he will not be going to work or leaving his residence. In my view the mother had no reasonable basis to think that the father might leave the child unattended. The mother pointed to the fact that the father had, on more than one occasion, gone to a club with his brother and those men had sent the child and his cousins into a supervised child friendly facility at that club for a couple of hours. That behaviour does not in my view create any reasonable basis for any reasonable apprehension of lack of proper supervision by the father. The father impressed me as a very responsible and committed parent, notwithstanding the physical distance between the child and himself. He communicates with the child on a daily basis by skype.

18. The mother has asserted the father has shown no real concern in relation to issues relating to the child’s development.

19. I am unable to accept the mother’s assertion. On her own evidence she has not communicated with the father about her concerns in relation to the child’s most recently assessed problems and in particular she conceded she did not know she had to talk to him about making an appointment with a paediatrician.

20. The mother alleges the father is a compulsive worker and his workaholism will get in the way of him looking after the child properly. I do not accept that is so. I accept his evidence that he is now working 5 days a week and again there is nothing the mother has put before me that would indicate that in June or August this year she had any basis for any reasonable belief that he would not properly look after the child if the child was overseas with him.

21. For those reasons I conclude that the mother has not demonstrated that she has any reasonable excuse for contravening the orders and I find that the mother has contravened the orders of 27 September 2012 by not making the child available to travel overseas with the father in June and August 2015.

22. In relation to the father’s application for costs, I take into account that it would be normal, in circumstances where a party had been found to have breached orders, to favourably consider a costs order in favour of the person who brought the application, primarily on the basis that the mother’s opposition to the application she be dealt with for contravention of orders had been wholly unsuccessful. 

23. However, in this case I take into account what appears to be, on its face, a significant disparity in the financial position of the parties.  The father actually has not led any evidence that I am aware of in relation to his current financial position.  I do not know what his assets are, but what I know is that he is a banker who holds a very senior position in his organisation and has income well in excess of $200,000 a year.  The mother has no job at the moment and no regular source of income apart from child support being paid by the father, and has a couple of hundred thousand dollars from the sale of her last accommodation in an account, which she is earmarking as deposits for future accommodation for herself and the child, once she is able to obtain employment.  Given that disparity in financial circumstances, I find that it is not just to make any costs order in this matter. 

24. I propose to require the mother to enter into a bond and to make a requirement of that bond that the mother will provide security in the sum of $5,500.  That is not cash the mother has to lodge, but an amount that the mother will forfeit if she breaches the bond.  The bond will be for 12 months.  The conditions of the bond are that the mother will:

    24.1.Comply with the orders that were made in 2012, as they might be varied from time to time; and

    24.2.The mother will be of good behaviour during the time the bond is in force.  The bond is for a period of 12 months. 

25. If the mother breaches the bond, then the bond may be revoked and the sanction for this breach revisited. The possible consequences that might flow if the mother breaches the bond would include the court’s ability to impose a fine up to $11,000, make orders for makeup time, and costs. It could also trigger a variation of the parenting orders.

26. I require the mother to enter into this bond prior to her leaving the building today and the penalties that I have just referred to relate to both the mother breaching a bond or if she refuses to enter into the bond, she would be brought back for a reconsideration of the sanction. The mother is to wait in the court building until the bond is available for the mother to sign. 

27. The parties agreed during this school holidays, the child would spend time with the father between 1 January 2016 and 15 January 2016 with pickup at Sydney airport and return to Country F airport.

28. The parties agreed to include a provision that the father provide to the mother three months’ notice ahead of the term 4 school holidays of where and when he will be having time with the child and if that be overseas away from his residence, he is to provide details of the itinerary for travel, including flight details and the address, telephone and other contact details of all accommodation.

29. I shall order that the parties participate in a post separation parenting program on the condition the father is able to do so electronically from where he lives. The idea of the program is to assist in developing some business like skills in dealing with each other as parents, even if they do not like one another very much. Both parents seem to be very intelligent people.  This eight year old boy would benefit greatly by the parents improving their ability to communicate with one another about matters that are essential to his wellbeing.  I have read some of the correspondence between the parties, which is not belligerent. I have some hope the parents will develop the ability to cordially and intelligently communicate with one another about issues that are going on in their child’s life.  As the child gets older, he will benefit greatly from having an idea that his parents actually care enough to talk to one another in a civil matter about his wellbeing.  All types of psychological problems can arise in adolescence when a child gets the idea that his parents just cannot talk to one another about what is going on with him. 

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Watts delivered on 30 November 2015

Associate: 

Date:  8.12.15