Woodburn and Pitcher

[2017] FCCA 3221

FEDERAL CIRCUIT COURT OF AUSTRALIA

WOODBURN & PITCHER [2017] FCCA 3221

Catchwords:
FAMILY LAW – Parenting contravention proceedings brought by maternal Grandparents – tragic family history where children’s Mother died a number of years ago – father and maternal Grandparents estranged – older Granddaughter also estranged from Grandparents – consideration of “reasonable excuse” in the light of significant litigious history and family tragedy – child’s “views” about spending time with Grandparents strongly held and clearly communicated to the Grandparents on a number of occasions – “best interests” considerations in varying Orders.

Legislation:

Family Law Act 1975, (Cth) ss.60CA, 70NAE, 70NAF, 70NBA(1)

Cases cited:

Australian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98

Childers v Leslie (2009) 39 Fam LR 379

D and C (Imprisonment for Breach of Contact Orders) (2004) FLC ¶93-193

Northern Territory of Australia v GPAO (1999) 196 CLR 553

Stevenson & Hughes (1993) 112 FLR 415; (1993) 16 Fam LR 443

Applicants: MS WOODBURN & MR WOODBURN

Respondent: MR PITCHER

File Number: CAC 514 of 2008

Judgment of: Judge Neville

Hearing date: 30 May 2017

Date of Last Submission: 11 July 2017

Delivered at: Canberra

Delivered on: 21 December 2017

REPRESENTATION

Counsel for the Applicants: Mr G Howard

Solicitors for the Applicants:	Farrell Lusher Solicitors
Solicitors for the Respondent:	Self-represented
Solicitors for the Independent Children's Lawyer:	Harris Lieberman Solicitors

ORDERS

1. The Court accepts the Father’s plea admitting each and every of the contraventions alleged by the Applicants in the Contravention Application filed 3^rd March 2016, but with reasonable excuse.

2. The Contravention Application filed by the Applicants on 3^rd March 2016 otherwise be dismissed.

3. Until further Order, all previous orders for the maternal Grandparents to spend time with Y (born: (omitted) 2000) and X (born (omitted) 2007) (“X”) be discharged.

4. X shall spend time and communicate with the maternal Grandparents in accordance with her wishes.

5. The Maternal Grandparents be permitted to attend any school event of any school at which the child, X, shall attend to which grandparents are usually invited including school assemblies, sporting events and school concerts.

6. The maternal Grandparents be permitted to obtain school photographs of X at their own expense and the Father, to the degree necessary, shall facilitate any such request.

7. The Maternal Grandparents be permitted to telephone X once in each school term as agreed between the parties and in the absence of agreement, on the fourth Saturday of each school term at 10:00am.

8. Pursuant to section 62G(2) of the Family Law Act1975 (Cth) (‘the Act’) the child only, X (born: (omitted) 2007) (“X”) attend upon a Family Consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Wishes Report.

9. The matter be adjourned to a date and time to be advised by the Court, subject to the release of the Wishes Report referred to in Order 6.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 514 of 2008

MS WOODBURN & MR WOODBURN

Applicants

And

MR PITCHER

Respondent

REASONS FOR JUDGMENT

Introduction

1. No thesaurus could properly assist the Court (or the parties) to outline the tragedy that has engulfed the Father, the two girls of the relationship, and the maternal Grandparents, who are the Applicants in this Contravention Application.  It was originally filed in March 2016.

2. In earlier judgments over the years, I have outlined and attempted to detail the tragedy and trauma that has involved these families since the Mother was diagnosed with and ultimately died from motor neurone disease in (omitted) 2013.  The parties actually reconciled quite some time before the Mother died.  I need not detail the background very much further; it would serve no useful purpose, least of all in relation to the current Contravention Application.

3. The protagonists to the sporadic but still ongoing litigation are the Father and the Grandparents.  In terms of active participation, the maternal Grandmother has perhaps been the “lead litigator” (I do not say this critically).  She (and her Husband) have sought, invariably unsuccessfully, to have a meaningful relationship with their Granddaughters.  Also invariably, I regret to say, each litigious event over the years seems only to have brought more suffering and discord to all involved, including the children, and ultimately it has led to further souring of the children’s relationship with the maternal Grandparents.

4. The children, Y and X, are now aged 17 and 10 years respectively.  The current Contravention Application only concerns X.  The Grandmother informed the Court (with understandable regret) that she (and her Husband) no longer have anything to do with Y.  They also informed the Court that they have not seen X since 2015.  The Grandmother also informed the Court (in my words) that the current Application was really more out of desperation because nothing else had worked, including with Y.

5. To state the obvious: all parties, and the children, are utterly sick and frustrated by the stalemate and grief that continues to engulf the family.  The Father says he wants an end to it primarily, but not only, because the children are sick of the litigation.  He also says (noted further below) that, given her age, the circumstances of her sister not going to see them, and the constant pressure she feels, he cannot force X to spend time with the maternal Grandparents.  The Grandparents say they only wish to spend time with X but are at a loss how to ensure that this occurs.  They say that they have tried the “softly/softly” approach with Y, and that has not worked.  As noted above, they see that “the law” is the only way left, or open to them to force X to spend time with them.

6. In every respect, this is a “lose/lose” situation.  Human experience accurately and amply confirms the basic reality that forcing anyone to do something against her or his will only ensures increased opposition and bitterness.  This is especially so with younger children and even more so with teenagers.  The capacity for resistance and resentment, and much else besides (even if completely illogical), particularly when forced against their will, almost knows no bounds.

7. Moreover, there is the significant risk that, if the Court were to find the contraventions established against the Father, and he has some penalty imposed, to the degree that it is possible, such a course may/is likely to poison further the child’s relationship with the Grandparents.

8. A further general observation is apposite. 

9. The law is a very blunt instrument.  In this matter the parties, the children and the Court have been dealing with issues and considerations of the greatest tragedy and delicacy.  How the uncompromising blunt-force trauma from the wielding of the law on parties who have been and who remain deeply wounded, scarred and traumatised properly operates (or can do so) is extremely fraught.  The matter needs the lightest, most delicate and most sensitive of touches, not the rubber truncheon of the law.  Put another way: Court Orders do not repair relationships and their diverse, deep and desperate wounds; only people do that.  And most especially, Court Orders do not repair relationships between adults and children.  By and large, “the law” is rather “black and white”; but families in crisis, such as this family, all live in shadows and shades of grey.  The law is very difficult to operate in such delicate “shadowlands.”

10. Finally, I should note that the Court requested the long-time Independent Children’s Lawyer (“the ICL”) to attend Court, not to participate in the contravention proceeding per se, but rather so that, subject to the Court’s findings, and subject to submissions, should the Court form a view in relation to the making of further Orders, the ICL may be in a position (especially after speaking with X) to make submissions in relation to any future Orders that may assist the parties and the child.  Indeed, sagely and succinctly the ICL stated in her submissions (par.29) the following rather doleful facts:

    X was 11 months old when family law proceedings first commenced in 2008.  In the 9 years since, court proceedings have been on foot in 6 of those years.  Various orders have been made in relation to X since 2008.  The orders have made provision for different parenting arrangements and in particular, time with arrangements between X and her maternal grandparents.

The Contraventions as Pleaded

1. Subject to what is set out in the written submissions (detailed later in these reasons), filed 15^th May 2017, the Applicants seek enforcement of the Orders of the Court dated 23^rd July 2012.  The eighteen (18) contraventions alleged against the Father are said to have taken place between 5^th January 2013 and 6^th February 2016.  Each contravention is pleaded in the same terms, namely that the Father, “without reasonable excuse failed to allow the applicant to spend time with X.”

2. Three matters of some significance should be noted here in relation to the pleading of the contraventions and the conduct of the case.

3. First, the Orders that are sought to be enforced refer specifically to the “maternal grandparents.”  The Contravention Application was filed on behalf of those same Grandparents.  However, each contravention, as pleaded, only refers to “the applicant” (rather than “the Applicants”).  Accordingly, the “pleading” of the contraventions is formally defective.  As a matter of precision and clarity, and as a matter of “form”, it is unclear which “Applicant” is seeking relief in relation to the Contravention Application.  If Mr Pitcher had been legally represented at the hearing, I suspect that this point would have been raised.  Given the range of significant sanctions that are available to the Court in proceedings of this kind, precision in the “counts” or charges, in the absence of leave to amend, is absolutely essential.

4. Secondly, as “pleaded” in the Contravention Application, the contention is that the Father, on each relevant occasion, “failed to allow the applicant to spend time with X.”  In addition to the issue of the imprecision of the “Applicant/Applicants” dichotomy, the Father’s evidence, as noted below, was that it was never a case of him not “allowing” X to spend time with the Grandparents.  He said that he would welcome it.  Nor was it the case, as pleaded, of him “failing to allow the Applicant [sic] to spend time with X.”  On one view of such pleading, the Father had no control over what either (or both) of the Applicants were “allowed” to do, one way or the other, to spend time with the child.  He had no control or influence over them at all and therefore it was not a case of him “allowing” the Grandparents to spend time with the child.  His evidence was consistently and simply that he could not get X to spend time with the Grandparents, despite his earnest efforts to encourage her to do so.  Again, the infelicity and imprecision of pleading was plainly evident.

5. Thirdly, notwithstanding the way the matter was formally “pleaded” in the Contravention Application, the way the matter was formally conducted at the hearing was that the Father did not facilitate the child’s time with the Grandparents.  There was never any formal pleading that articulated the claims against the Father in the way pleaded, that is, of “not facilitating” time.  Again, in my view, the disjuncture between the pleading of the contraventions (on the one hand) and the way the matter was “run” at the hearing (on the other), absent any application for leave to amend, was (at least potentially if not actually) procedurally unfair to the Father.  But again, no point along these lines was ever raised during the hearing.  And again, had the Father been legally represented, I suspect that this further point – however “technical” – would have been taken.

6. Having noted each of these pleading and related deficiencies, precisely because none of them were raised at the hearing (for the reasons mentioned), and therefore the Applicants (and the Respondent for that matter) did not have an opportunity to address them, I have had no regard to them in relation to the determination of the Contravention Application.  I take this course notwithstanding that (a) the Applicants have highly experienced lawyers and highly experienced Counsel, (b) the Father was self-represented and (c) it places the Court in an even more invidious position than usual.

Minute of Orders Sought by the Respondent

1. The Respondent did not file a Minute of Orders Sought, however in the course of the hearing he advised that he wishes for the child to spend time with the Maternal Grandparents, in effect, in accordance with her wishes.

Minute of Orders Sought filed by the Independent Children’s Lawyer

1. The Independent Children’s Lawyer filed a Minute of Orders Sought on 12^th May 2017.  That Minute sought the following Orders:

   1. That an updated Family Report by Ms S be ordered.

   2. That pending further order, all previous orders for the maternal grandparents to spend time with Y born (omitted) 2000 and X born (omitted) 2007 be discharged.

   3. That the maternal grandparents be permitted to attend any school event of any school at which the child, X, shall attend to which grandparents are usually invited including school assemblies, sporting events and school concerts.

   4. That the maternal grandparents be permitted to telephone X once in each school term as agreed between the parties and in the absence of agreement, on the fourth Saturday of each school term at 10am.

Pleas & Evidence of the Father

1. In relation to the eighteen (18) contraventions levelled against him as detailed in the Contravention Application filed 3^rd March 2016, in relation to the Orders of this Court dated 23^rd July 2012, the Father admitted each of them but pleaded “reasonable excuse.”  That “reasonable excuse” was simply but consistently that X very firmly resisted (and continues to resist) every attempt he made (and continues to make) to have her spend time with the Grandparents.  Indeed, the Father readily stated on a number of occasions that he could not (and would not) force her to spend time with them.

2. What constitutes “reasonable excuse” is set out, in a non-exhaustive manner, in s.70NAE(1) Family Law Act 1975 (Cth) (“the Act”). But as stated by the High Court in Northern Territory of Australia v GPAO at [14] (emphasis added): “the circumstances in which a person has a reasonable excuse for contravening an order under the Act include but are not limited to those specified in [the Act].”[1]

   [1] Northern Territory of Australia v GPAO (1999) 196 CLR 553.

3. The Father’s oral evidence, summarised, was as follows:

   (a)The Father confirmed that there have been many instances of conflict between himself and the Grandparents, although he also said that he would really like/hope that they could all just do normal things like have a milkshake together;

   (b)He confirmed that he had returned to the Grandparents a birthday card they had sent X; he said this was done at X’s request;

   (c)The Father said that the Grandparents had turned up at an (hobby omitted) and had yelled abuse at him;

   (d)The Grandparents had also turned up to a school assembly which, he said, had embarrassed X because they had stood, clapped and cheered at the wrong time (doubtless well-intentioned but not well appreciated by a young person at school among peers);

   (e)The Father said that he had sought advice from the Department of Education regarding the Grandparents attending school.  He said that he was advised that the Principal of the school had told the Grandparents to stop attending the school because X did not like it;

   (f)The Father confirmed that he stopped the Grandparents from obtaining school photographs of X.  He said he did so because, at the time, he was notified by the photographer that an order had been placed for photographs of the girls and that he did not know who it was who had done this.  Accordingly, he said that he was simply acting protectively; he said that if the Grandparents wanted a photograph so badly he would arrange for it.  In my view, the Grandparents should be able to obtain a photograph or photographs of their Grandchildren; the Father should facilitate and ensure that this occurs;

   (g)The Father said that he was threatened with “gaol” by the Grandmother should he not facilitate time with arrangements with the Grandparents (who denied such a threat, certainly in those terms);

   (h)He also said that he could not stop his older daughter, Y, speaking with X and telling her “bad things” about the Grandparents;

   (i)The Father said that, in his view, it is the constant conduct of the Grandparents that have led to X not wanting to spend time with them, conduct such as (he says) the Grandparents driving past his house.  He said that X is physically sick when she is “pressured” by him to go to spend time with the Grandparents; he says that she crawls under the bed (not on every occasion, but certainly when she was younger), and that she has locked herself in her room; he denied that he was making any of this up;

   (j)The Father confirmed that he knew that the Orders of July 2012 remain in place; he had not sought assistance (e.g. counselling) in relation to getting X to spend time with the Grandparents;

   (k)The Father confirmed that if X did not want to go to school he would make her go because it was important; this was followed with the obvious question that he did not think the child’s relationship with her Grandparents was important.  To this the Father simply said that he would not physically drag her to the car to see the Grandparents.[2]  He confirmed that if X wanted to see the Grandparents he would take her for this to occur;

   (l)The Father said on a number of occasions that all he wants is for the Grandparents to be civil and “appropriate” in a “polite manner”;

   (m)He confirmed that her sister Y had “influenced her [X] quite a lot”;

   (n)The Father was asked why he had not sought to change the Orders given how long it had been since X had not spent time with the Father.  He simply said that he did not have the money to bring the matter back to Court.  He said that the girls, particularly X, had been subject to “all this Court stuff” all her life and that it was “unfair” on her.  He also said that it was very difficult to talk with the Grandparents;

   (o)The Father said that he had consistently been threatened with gaol and that these threats had been recorded on camera.  He was asked to see if he could find this/these recordings, which the Father said he thought might have been in either 2013 or 2014 when X was in Year 2.  He was given time to do so.  He has not done so;

   (p)The Father said that there were many occasions when the children had witnessed contests between the Grandparents and himself;

   (q)He said that he wished that both girls spoke [again] to Ms S (as proposed by the Independent Children’s Lawyer) to get their views and the many and varied instances of events that have shaped their views.  He acknowledged that such a Report would be the fourth in the course of the litigation.  He also said that the girls were aware of the current litigation and that they found it distressing and caused them extra concern in relation to the actions of the Grandparents; and

   (r)The Father confirmed that he is considering leaving the (omitted) area because he and the girls are so fed up with the constant litigation and contests; he also said (noted earlier) that he simply wanted them all to be like “normal families” and go to lunch together; it was not his position that X have no relationship with the Grandparents; he simply wanted “everyone” to get along like “normal families”.

   [2] In answer to questions from the Bench at this juncture, Counsel for the Grandparents noted that the requisite “standard” of compliance regarding use of a parent’s “best endeavours” to ensure that a child spends time with a person in accordance with Orders was set out by the Full Court in Stevenson & Hughes (1993) 16 Fam LR 443.

The Grandmother’s Evidence

1. The Father did not wish to ask any questions of the Grandmother.  She was asked questions by her Counsel, to the following effect:

   (a)The Grandmother confirmed that the last time she saw X was in April 2015;  she used to see her regularly and happily so, on all sides;

   (b)She outlined various activities she used to do with X;

   (c)She denied various allegations made by the Father, notably his contention that the Grandmother had said that she would take the children off him;

   (d)Without going into detail, in answer to a further allegation by the Father that she had hit him with the car door on one occasion, the Grandmother outlined what had transpired and that in the course of a larger, ongoing contest, she had “shut the door on him” as she was pushing it forward to get him out of the car after he had brought X out and put her in the car;

   (e)In relation to the contention that the Father had been told by the Grandparents that he should be in gaol, the Grandmother confirmed that on one occasion the Grandfather had referred to and said to the Father that, because the Father had a suspended sentence [from quite some years before], he should by right be “in gaol”;

   (f)The Grandmother was resistant, bordering on the dismissive, to the Father’s suggestion of going to have a milkshake or a meal together because, in her view, it would be nothing more than a supervised visit with the Father sitting nearby;

   (g)The Grandmother does not believe that the Father has done the parenting course that he was previously ordered to do; she said that the Father does not talk to her/them; and that she does not know or understand the animosity that is directed to the Grandparents by the Father;

   (h)Although the Father said earlier in the hearing that he did not wish to ask any questions of the Grandmother, later he did so briefly.  All these brief exchanges between the parties showed was the utter disagreement and discord between them.  There would be no utility to go through the detail of these brief exchanges; and

   (i)Of some significance is that the Grandmother was not keen for everyone to attend yet another Family Report because “we are going round in circles.”  She also confirmed that the Grandparents have not seen Y since she was 11, which led her to say that the “softly, softly” approach has not worked with her.

2. For completeness, the ICL said that in her view, it was imperative that there be a further report, but it should not include Y.  Also, the earlier Family Reports, for more abundant caution, were admitted into evidence, not for the purposes of the Contravention Application, but for any future parenting Orders.

Submissions on behalf of the Applicants

1. The Applicants filed written submissions on 15^th May 2017.  Those submissions were as follows:

   1)    These submissions are in relation to the Application – Contravention filed by the Applicant on 17 August 2016.

   2) The procedure for the hearing of a Contravention Application is set out in Rule 25B.04 of the Federal Circuit Court Rules. Upon being informed of the allegations of contravention the Respondent is required to advise whether or not he admits the allegation. At this stage it is not known if the Respondent admits the allegations or not.

   3)    If the Respondent admits the allegations or the allegations are otherwise found by the Court to have occurred then the Respondent can indicate whether he argues that he had a reasonable excuse for contravening the order. If he does argue that he had a reasonable excuse then the onus is on him to prove the reasonable excuse in relation to each of the allegations.

   4)    The Applicant alleges multiple breaches of the orders dated 23 July 2012 (“the orders”) including no periods of time in accordance with the orders since 2015. Having failed to comply with the order over an extended period probably means that the Respondent’s conduct shows a flagrant challenge to the authority of the Court. Nonetheless Contempt proceedings have not been commenced.

   5)    The fact that no time has occurred in accordance with the orders for a significant period of time means that a reasonable excuse for not complying with the orders is significantly less likely. If a party subject to an order believes that an order should be changed then the onus is on that person to make an application for a variation of the order.

   6)    It is submitted that the matter falls within Subdivision F of Division 13A of Part VII. This subdivision deals with more serious contraventions. This matter falls within the provisions either because of the prior finding of guilt made by the court on 23 July 2012 or, alternatively, because the contraventions show a serious disregard of the Respondent’s obligations under the order.

   7) Under Subdivision F the Court must impose one or more penalties pursuant to section 70NFB of the Act. The Court must consider making an indemnity costs order. If such an order is considered to be not in the best interests of the child then the court is not required to make that order but must make another order or orders under section 70NFB(2).

   8)    It is submitted that the Court should make an indemnity costs order. The Respondent has done nothing to try to comply with his obligations under the orders.

   9)    In the alternative an order should be made pursuant to s. 70NFB(2)(h) for some of the costs of the Applicant to be paid by the Respondent. In addition, at the very least, an order placing the Respondent on a bond for a period of 2 years without surety or security should be made. Conditions of the bond sought by the Applicant are:

   a. That he be of good behaviour;

   b. That he comply with the orders of 23 July 2012;

   c. That he ensure that the child X attend at family counselling with the maternal grandparents.

   10)    If a consideration is to occur of whether the orders should be amended pursuant to section 70NBA or otherwise, noting that the Respondent has never brought proceedings for this to occur, then the Applicant submits that the following should first occur:

   a. The Contravention Application should be finalised;

   b. The Respondent should be required to comply with the order in the period prior to the consideration of any such application;

   c. A Family Report should be ordered.

   11)    It is noted that the Applicant does not have notice of any such application and will not be in a position to address the matter at the hearing of the Contravention Application.

   12)    This is a sad case. As a result of the actions of the Respondent, the children, but in particular for the purposes of this application, the child X, is being deprived of any connection with her maternal family after the tragic death of her mother in 2013. This is unlikely to be in the child’s best interests. By not complying with the orders the Respondent is the cause of this lack of relationship with the maternal grandparents.

Submissions by the Respondent

1. The Respondent did not file written submissions.

Submissions by the Independent Children’s Lawyer

1. The ICL filed her Outline of Submissions on 12^th May 2017, which are set out in full below. For ease of reference, I have put paragraph numbers into these submissions (emphasis added in addition to headings):

   1) The Contravention Application filed by the Maternal Grandmother, Ms Woodburn on 3 March 2016 alleges that the Respondent Father, Mr Pitcher has failed to comply with Order 5 of Orders dated 23 July 2012 on 18 occasions between 5 January 2013 and 6 February 2016.   The relevant order provides that “X spend time with the maternal grandparents on the first Saturday of each month from 10.00am to 5.00pm commencing on Saturday 4^th August 2012 AND IT IS NOTED Y will spend time with the maternal grandparents at the same time as X if she wishes.”

   2) It is not known whether Mr Pitcher concedes the alleged contraventions.

   3) The Independent Children’s Lawyer does not wish to make any submissions in relation to the question of whether a contravention is or is not established or if established, whether a reasonable excuse for the contravention is found. It is noted however that s.70NBA(1) of the Family Law Act 1975 allows the Court to vary a primary order which is alleged to have been contravened.

   Background

   4) X is 10 years of age (DOB (omitted) 2007) and attends (omitted) Public School where she is in Year 5.   X lives with her father, Mr Pitcher and sister Y aged 16. 

   5) Proceedings were first commenced in March 2008, following the parents’ separation in October 2007.  Mr Pitcher did not see either child for 12-15 months owing to sexual abuse allegations made by Y against her Father in or about November 2007.  The allegations were investigated by the police however the matter did not proceed.  Y later retracted her allegations.  An expert report was prepared by Dr S and Mr Pitcher commenced spending time with the children.  In this period, Ms L became ill with Multiple Sclerosis.  Two reports were then prepared by Ms S, dated 7 August 2009 and 19 September 2009.

   6) Prior to the preparation of Ms S’s second report, Mr and Ms L reconciled.  All parties attended a mediation session on 8 September 2009 and orders were subsequently made.

   7) It is submitted that Ms S’s 2 reports dated 7 August 2009 and 19 September 2009 be read if the court considers it appropriate to vary the orders dated 23 July 2012.

   8) On 4 October 2011 orders were made providing that X spend time with the maternal Grandparents from 11.00am to 4.00pm each alternate Sunday with changeovers to occur at the Children’s Contact Service at (omitted).  The orders stated that Y be able to attend visits with the maternal Grandparents at the same time as X should she wish to.

   9) On 28 February 2012 orders were made allowing the maternal Grandparents to collect both children from school each Wednesday for the purpose of spending time with them over the evening meal.

   10) In or around 2011, Mr and Ms Woodburn filed a Contravention Application.  On 23 July 2012 Mr Pitcher admitted the contraventions and a reasonable excuse was found.  The previous parenting orders were discharged and orders were made providing inter alia for X to spend time with the maternal Grandparents on the first Saturday of each month from 10.00am to 5.00pm and noting that Y would spend time with the maternal Grandparents at the same time as X if she wishes.  These are the current orders.

   11) Ms L passed away on (omitted) 2013.

   12) Based on the affidavit of Ms Woodburn filed 3 March 2016, it appears that Mr and Ms Woodburn spent time with X in accordance with the orders throughout the rest of 2012, throughout 2013 save for January and February and throughout 2014 save for January, May and August.  In 2015, it is alleged that Mr and Ms Woodburn only spent time with X in April 2015.

   13) It appears that Y has not spend time with Mr and Ms Woodburn since at least July 2012.

   14) In considering parenting matters, the court must have regard to the best interests of the child as the paramount consideration (s.60CA). 

   15) It is noted that the presumption of equal shared parental responsibility in s.61DA only applies in relation to parents.  The court however must consider the relevant factors contained in s.60CC to determine what is in X’s best interests.

   16) In Aldridge & Keaton [2009] FamCAFC 229 the Full Court at paragraph 75 said “while there can be no doubt that the amending Act (2006 amendment) has placed greater emphasis on the role of both parents in the upbringing of the children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child’s best interests as the paramount but not sole determinant.”

   s.60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to their weight it should give to the child’s views.

   17) At paragraph 35 of the affidavit of Ms Woodburn filed 3 March 2016, it is deposed that Ms Woodburn spoke to X on the phone on 1 August 2015.  X told Ms Woodburn twice that she did not want to attend upon them for a visit.

   18) At paragraph 36 of Ms Woodburn’s affidavit, it is deposed that Ms Woodburn spoke to X on the phone on 15 September 2015 and that X said “I only want to come Nan when I choose to.”

   19) At paragraph 37 of Ms Woodburn’s affidavit, it is deposed that Ms Woodburn spoke to X on the phone on 3 October 2015 and that X said to Ms Woodburn “Nan I don’t want to come.”

   20) Ms Woodburn has deposed to Mr Pitcher telling her that X does not wish to attend for visits.

   21) In a recent meeting with the Independent Children’s Lawyer, X indicated her preference for no face to face visits with her grandparents and no telephone calls.  X expressed that her second preference was for there to be organised visits between her and her grandparents twice a year and telephone calls once a term with her grandparents to make the call.  X indicated that she had no objection to her grandparents attending school events such as assemblies, sporting carnivals and concerts.

   22) X appears cognisant of the conflict between her father and maternal grandparents which has been longstanding.  It is submitted that X’s expressed views should be given significant weight having regard to X’s age, the fact that her views appear to have been held for a long period of time and her level of maturity.

   s.60CC(3)(b) the nature of the  relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child).

   23) X appears to have a close and meaningful relationship with Mr Pitcher and Y.  X had had a close relationship with her grandparents as evidenced by the reports of Ms S in 2009.  Whilst it appears the nature of the relationship between X and her maternal grandparents has changed since 2009, some relationship has been maintained through regular visits until 2015 when it is alleged these visits ceased.  In addition, it is understood that Mr and Ms Woodburn have on occasion attended at X’s school for events such as assemblies, sporting carnivals and the like. 

   24) X does not appear to have regular contact with other members of extended family on her mother’s side.

   25) Ideally X would be able to have a close relationship with her grandparents and other members of her maternal family as well as her father and that there would be an amicable relationship between her father and grandparents.  It is submitted that the relationship between Mr Pitcher and Mr and Ms Woodburn has not improved over the years since separation and that based on the evidence available to the court at this stage, the relationship is unlikely to improve in the near future.

   s.60CC(3)(f) the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

   26) The school records produced on subpoena by (omitted) Public School suggest that X’s attendance at school is acceptable and that her academic performance is sound.  X's Semester 2 report in 2016 describes X as a fantastic young individual who takes prides in her effort.  The report further indicates that X displays maturity and mutual respect and that she works diligently.

   27) The school records refer to the conflict at changeovers at the school in 2012.

   28) X has expressed that she feels caught in the middle.  It is submitted that the ongoing conflict between Mr Pitcher and Mr and Ms Woodburn does not meet X’s emotional needs.

   s.60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

   29) X was 11 months old when family law proceedings first commenced in 2008.  In the 9 years since, court proceedings have been on foot in 6 of those years.  Various orders have been made in relation to X since 2008.  The orders have made provision for different parenting arrangements and in particular, time with arrangements between X and her maternal grandparents. 

   30) It is submitted that any orders the Court makes should be ones that are least likely to lead to the institution of further proceedings in relation to X.

   31) It would be of some benefit to the court to have an updated report prepared by Ms S who has some familiarity with the matter.  The report would provide further evidence of X’s views and the impact that either a reduction of time or a continuation of the existing orders would have on X.

Consideration and Disposition

1. There are two matters the Court is required to determine: (a) whether there have been the breaches of the July 2012 Orders as alleged by the Applicant Grandparents, and if so, whether the Father has established that his actions constitute a “reasonable excuse”; and (b) whatever the result of the Contravention Application, should the existing Orders be varied, and if so, how?

2. For a very long time, Courts have confirmed the central importance of Orders being obeyed or complied with.  For example, in D and C (Imprisonment for Breach of Contact Orders), Kay J said, at [12]:[3]

   The primary purpose of enforcement proceedings for non-compliance with an order is to try to ensure compliance with the order.  … There are circumstances where it is important to uphold the authority of the Court and impose a penalty as a specific or general deterrent.

   [3] D and C (Imprisonment for Breach of Contact Orders) (2004) FLC ¶93-193.

3. Likewise, Courts have long confirmed the concern, indeed the importance, to ensure that the administration of justice is not undermined by the failure to enforce Orders.[4]

   [4] See, for example, the comments in the majority judgment (Gibbs CJ, Mason, Wilson and Deane JJ) in Australian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 at 107.

4. Specifically with respect to contravention Applications in relation to parenting Orders, there has long and consistently been the point made by the Full Court that more than lip service to compliance with Orders is required.  Indeed, what is required is for the allegedly non-compliant parent to take “reasonable steps” to ensure that there is compliance with the relevant Orders.  As put by Fogarty J in Stevenson & Hughes, it is a case of ensuring that Orders are not thwarted by either “active steps or by passive resistance.”[5]  In the same place, his Honour said that there is an [ongoing] “active role” to “positively encourage access.”

   [5] See Stevenson & Hughes 16 Fam LR 443 at 450.

5. Similar comments have been made by Warnick J, sitting as the Full Court, in Childers v Leslie where, at [28], his Honour noted the importance to ensure that not “too loose a test of reasonableness” was applied in contravention applications.[6] “Reasonable excuse” is defined in s.70NAF of the Act.

   [6] Childers v Leslie (2009) 39 Fam LR 379.

6. I should also mention that in terms of the Court’s responsibility to make a decision, the relevant evidentiary standard in relation to the claims made (and the responses thereto) is in accordance with s.70NAF, being the balance of probabilities. And whatever the Court’s conclusion in relation to the contraventions alleged against the Father, the Court is permitted to vary the existing parenting orders pursuant to s.70NBA.

7. For my part, the evidence is actually finely balanced.  There are large parts of it that are indisputable, not least that X has not spent any time with the Grandparents since April 2015.  It is also not disputed that, when she was 5 years old, she spent regular and enjoyable time with the Grandparents.  She is now approximately 10½ years old and continues to be embroiled in the litigation between her Grandparents and her Father.

8. However, in between then and the current time, her Mother has died and her sister has ceased any meaningful relationship with the Grandparents.  Tragically, the closest members of her family – her Father and her maternal Grandparents – remain implacably opposed to each other and are regularly hostile to one another.

1. I readily understand the respective positions of both parties: the utter frustration of the Grandparents in effectively losing touch with their maternal Grandchildren, and the Father similarly feeling constantly besieged by the Grandparents and at the same time fraught to protect the children from what is perceived to be the relentless but ultimately futile pursuit by the Grandparents of “time with” arrangements pursuant to the Orders made in 2012.

2. What is of some significance is the affidavit evidence of the Grandmother, noted also in the introduction to the ICL’s submissions. 

3. At pars.35 and following of the Grandmother’s affidavit, filed 3^rd March 2016, the Grandmother recounts occasions on 1^st August 2015, 5^th September 2015, 3^rd October 2015 when the Father rang the Grandmother and put X on the telephone and where, in the course of those telephone conversations the child consistently and politely advised the Grandmother that she did not wish to go to spend time with the Grandparents and that she would do so when she determined.  These occasions, and the clear comments by the child, in my view indicate that (i) the Father clearly initiated the child at least speaking with the Grandmother, and (ii) the child made her views known on more than one occasion.  No less importantly, on the limited evidence available, the Grandmother’s account of those telephone conversations with X at least suggest no hostility by the child towards the Grandmother (she seemed respectful albeit determined – rather like her Grandmother), and an openness to spend time with the Grandparents in the future.  In this respect at least it would appear that “the landscape” is not completely barren and utterly devoid of life, however stunted it might be at the moment.

4. On balance (by reference to s.70NAF), given (a) the immense and tragic history of the proceedings and all matters relating to them, (b) the Grandmother’s evidence, and (c) the Father’s evidence, I cannot be reasonably satisfied that the Father has not met the requisite standard of reasonable excuse as set out in s.70NAE as submitted by the Applicant Grandparents. While there are doubtless misgivings and some reasonable doubts in a number of respects in relation to how far the Father has gone to encourage and facilitate X’s time with the Grandparents, the consistency of her comments to the Grandmother, the consistency of the Father’s evidence, the age of the child and her consistent exposure to litigation and to her sister’s less than positive views, all suggest that short of forcibly removing the child from the Father (which would be completely detrimental to the child – and others), X would not/will not spend time with the Grandparents unless she wished to do so.

5. For these reasons I accept the plea of the Father who admitted each of the contraventions but with reasonable excuse.

6. I turn then to the next part of the matter, namely whether the existing Orders should be varied, pursuant to s.70NBA(1). For the reasons set out in the ICL’s submissions (which I accept and adopt in their entirety), with one small amendment, in my view it is in the best interests of X (whose interests must be the Court’s primary focus and paramount concern pursuant to s.60CA) for the current Orders to be varied as proposed by the ICL. I recall that the Father supports an Order for a Family Report but the Grandmother does not for reasons earlier given. In my view, X should have one last opportunity to provide her [unadorned] views to the Court and all others, via a limited issues or “wishes report”, which means that she alone will be interviewed by the Family Consultant.

7. While it was very tempting to do otherwise and end the litigation, however in all of the circumstances, and for the reasons given by the ICL, the course proposed for there to be a relatively short Report, confined to X’s “views”, are in her best interests.

8. For the reason given, I make the Orders sought by the ICL, as amended by me, together with a declaration that the Court accepts the Father’s plea (“admitted but with reasonable excuse”) in relation all contraventions in the Application filed 3^rd March 2016.  There should also be a general Order that X may spend time with the Grandparents in accordance with her wishes.

9. The matter will be adjourned to a date to be advised once a date is fixed for the “wishes Report”, which should, if at all possible, be done by Ms S who has prepared earlier Reports.  The Court requests that the ICL advise X of the outcome of these proceedings, including the “wishes Report.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:         21 December 2017