Wright and Adams (No 2)

[2012] FamCA 926

FAMILY COURT OF AUSTRALIA

WRIGHT & ADAMS (NO 2) [2012] FamCA 926

FAMILY LAW – CHILDREN – Contravention – where both parents allege contraventions by the other parent – where several contraventions not made out – where those contraventions that were made out were dismissed on the basis of reasonable excuse – where no order for costs.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Childers & Leslie (2008) 39 Fam LR 379
Vlug & Poulos (1997) 22 Fam LR 324

APPLICANT: Mr Wright

RESPONDENT: Ms Adams

FILE NUMBER: BRC 7255 of 2009

DATE DELIVERED: 8 November 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 2 October 2012

REPRESENTATION

THE APPLICANT: Mr Wright

THE RESPONDENT: Ms Adams

Orders

1. The Contravention Application filed by the Applicant Father on 23 August 2012 is dismissed.

2. The Contravention Application filed by the Respondent Mother on 24 August 2012 is dismissed.

3. There be no order for costs in respect of each such Application.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wright & Adams (No 2) 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 BRISBANE

FILE NUMBER: BRC 7255 of 2009

Mr Wright

Applicant

And

Ms Adams

Respondent

REASONS FOR JUDGMENT

1. On 23 August 2012, the father filed a contravention application against the mother.  On 24 August, the mother filed a contravention application against the father.  The respective alleged contraventions pertain to parenting orders made in the Federal Magistrates Court by consent on 4 May 2011 (and amended on 27 July 2011).

2. The father alleges three contraventions; the mother eleven.  One of those alleged contraventions (pertaining to an alleged breach of paragraph 17 of the orders) is not pursued.  Another, pertaining to an alleged breach of orders made by Forrest J on 8 June 2012 was struck out by me for reasons referred to below.

3. The respective applications have a background. 

4. Within weeks of the orders of 4 May 2011 having been made, the parties were again before Jarrett FM.  On that date, his Honour made certain orders and transferred “a number of outstanding applications” to this Court, holding that “this is a case” in which “there is intractable conflict and significant parental alienation”. 

5. The father has filed, contemporaneously with his instant contravention application, an Application in a Case seeking amendments to the orders made by Jarrett FM.  That application is to be heard by the Principal Registrar in November. 

6. The words of Warnick J in Childers & Leslie (2008) 39 Fam LR 379 at 380 are so frequently apposite in cases of this type. They are particularly apposite here, where the parties have been litigating continuously about their children:

   This appeal involves features typical of a great many applications that assert contravention of an order that a child spend time with a parent: the complaint, even if correct, seems a heavy handed, even obsessive reaction – yet, if the incident is the latest in a series (about which there will commonly be mainly subjective comment, irrelevant to the particular proceeding) perhaps any exasperation of the complainant is at least understandable; secondly, the “excuse” offered by the respondent will seem “fair enough”, at least not to be behaviour that ought attract punishment; and finally, whatever the outcome, it will seem unlikely to contribute to any real diminution in the particular family’s conflict.

   However, these pervasive but nebulous features must be put aside, though the sense that one is presiding over an unproductive process might tempt a judicial officer to strive to achieve more from the hearing than it can properly yield. The focus must be narrowed, and, at first instance, the relevant facts determined and the law applied…

7. I would respectfully venture to say that a judicial officer “…strive[s] to achieve more from the hearing than it can properly yield…” because, at least in part, the judicial officer can see applications for contravention being used by parties to repeatedly continue a battle born of their dysfunctional relationship and their dysfunctional capacity to co-parent.  Such is the case here.

8. On one level, parties cannot be criticised for exercising their democratic right to pursue a remedy provided for in the Family Law Act 1975 (Cth) (“the Act”). Yet, as with so many issues in family law as they pertain to children, the democratic rights of parents can be seen to clash with the rights of children. Those rights are enshrined in, for example, s 60B of the Act, but they can be expressed more broadly as children being permitted to: love and be loved without impediment; to enjoy their childhood before the responsibilities of adulthood intrude; and, to be free of conflict generated by parents who are unwilling or unable to prioritise the needs of their children ahead of their own conflicts.

9. With those considerations in mind, I attempted to have the parties focus upon the issues relevant to the children unclouded by contravention proceedings which, as authority demands, must be determined according to different criteria and, a different process (see, rule 21.08, Family Law Rules 2004 (“the Rules”)).

10. My attempts were in vain. Both parties determined to proceed with their contravention applications. Given that neither party contended for either punishment in the true sense, nor any remedies likely to assist in their future co-parenting, their respective motivations in that regard might be questioned.

11. Nevertheless, they are each, of course, entitled to pursue the applications as filed.

12. The Rules provide for a specific process for the hearing of applications for contravention (see, rule 21.08). They do so because of the prospect of penalties being imposed in respect of any contraventions established.

13. Amendments to the Act in 2006 sought to address the problems encountered in the plethora of contravention applications brought before the Court which were not, in fact, about punishment but, rather, were in effect proceedings for parenting orders in the guise of contravention proceedings. In those cases, the issues live between the parties said as much about the capacity of the parents to behave as reasonable parents might be expected to behave once parenting proceedings had concluded and about the dysfunction in their relationship and their capacity to co-parent, as they did about an intention to defy the Court.

14. The amendments sought to address, at least in part, those issues by delineating “less serious contraventions” (Pt VII, Division 13A, Subdivision E of the Act) from “more serious contraventions” (Subdivision F) and by providing, in the former case, expanded powers (or “remedies”) – for example, s 70NEB – which permitted of the Court seeking to address what might be called “parenting issues” rather than imposing punishment.

15. So much is, with respect, understandable and appropriate.  But, applications for contravention in “less serious” cases continue to provide another avenue for parents to continue their battle to the detriment of their children long after outstanding issues between them ought to have been resolved – ideally by agreement or, failing that, as determined by the Court. So it is here.

16. Not only am I struck overwhelmingly by, as Warnick J put it, “…the sense that [I am] presiding over an unproductive process…”, I am also struck by two further things.  The first is that these proceedings have, in fact, nothing to do with the children and certainly nothing to do with their best interests.  Secondly, I am struck by the fact that, underlying the contentions and cross-contentions, is an implicit plea that, due to the incapacity of the parents to produce adult co-parenting and their dysfunctional relationship, they seek to have a stranger to the children micro-manage the children’s interactions with their respective parents. 

17. These are not parents requiring the intervention of State authorities through abuse or neglect; these are not parents affected by drug or alcohol addiction.  In the absence of factors of those types or, for example, family violence, private family law, and this Court, should serve no such function.  

18. This Court, in parenting proceedings, resolves inter partes disputes that parties cannot themselves resolve and, as a consequence, provides broad “remedies” (if that description can be said to properly apply to orders made in parenting proceedings).  At some point, parents who are otherwise ostensibly so capable, have to be mature enough, and selfless enough, to put aside the issues that divide them (that are, in so many cases, petty, stupid and irrelevant to the broader interests of their children) and get on with the business of working with the person with whom they chose to produce children.

19. In that vein, it is at once antithetical to the best interests of children that orders should provide (as they do here) that parents “except in the case of emergency … are to communicate with respect to the children via email, text message or other written means such as a communications book.”  Yet, as each of the parties would contend, such an order is necessary.  In other words, each of the parties contends that the level of their dysfunction is such that they cannot communicate orally with one another at all for the sake of the children.

20. It should, perhaps, come as no surprise that an alleged contravention by the father asserts that the mother “did not provide care information in writing but instead sought to list care information verbally to the [father] …”.  It might come as no surprise but it appals me nonetheless.

21. By way of an overarching finding, I was singularly unimpressed with the evidence of each party. I have no confidence in relying solely upon the evidence of either.

The Contraventions Not Pursued or Struck Out

1. The mother does not pursue the allegation that paragraph 17 of the orders made by Jarrett FM on 4 May 2011 (amended on 17 July 2011) was contravened by the father on 8 July 2012.  That alleged contravention is dismissed.

2. The mother alleges that paragraph (1) of the orders made by Forrest J on 8 June 2012 was contravened by the father on 8 July 2012 by reason of the father failing “to make 45 minute phone call to our children as compensation for the 45 minute phone that they were unable to have on 27 September 2011 …”. That contravention refers to an order made by Forrest J which, in turn, was made in respect of contravention applications. However, the order provides, in terms, for the father to exercise a choice and a requirement to give notice should he exercise that choice. The highest the mother’s case can be put is the father did not choose to make the call. That, in my view, is not a contravention of any obligation imposed by an order. That alleged contravention is dismissed.

The Contraventions Alleged by the Father

1. The father alleges that the mother contravened paragraph 2 of the orders made by Jarrett FM on 4 May 2011 because she “unilaterally [withdrew] one of the children from her needed learning support programme on 23 March 2012.” Paragraph 2 of the orders of 4 May provides for the parties to have “shared parental responsibility” for all of the children.

2. Although not formally admitting the contravention, once the mother was cross-examined by the father and further questioned by me, it was clear that the mother accepts that she withdrew the children from the learning support programme at the school, and that she did so unilaterally, that is to say without any reference to the father. She did so, she says, because she does not accept the need for that intervention. In that respect she says that she herself possesses training and expertise in relation to the matters the subject of the intervention, and has determined that it is unnecessary. Accordingly, the mother asserts (albeit not precisely in terms as a result of her being self-represented) that she has a reasonable excuse for the contravention.

3. The order made does not refer to “equal shared parental responsibility” which is presumed under the Act. In the absence of a specific order, parents of children each have parental responsibility (s 61C).

4. The older authorities suggest that orders for “joint guardianship” under the Act as it then stood, conferred joint responsibilities for the long-term care, welfare and development of the children. The Full Court, referring to the then legislation has held that:

   …an order can be made conferring long term responsibility for a child on a person jointly with another person, and that such an order is capable of being the subject of contravention proceedings if a person in whose favour such an order is made is hindered or prevented from carrying out his or her joint responsibility under the order by any other person …

   (Vlug & Poulos (1997) 22 Fam LR 324 at 337)

5. Here, the order provides that the parents should share parental responsibility. Accordingly, s 65DAC of the Act places positive obligations upon each of the parents. Reference to that section can be seen as requiring decisions about major long-term issues to be made jointly and a specific requirement for those persons to consult and make a genuine effort to come to a joint decision about that issue.

6. “[M]ajor long-term issues” means “…issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about: (a) the child’s education (both current and future) …”

7. It seems to me that an issue about whether a child is enrolled in a particular form of education within the school system comes within that definition. I find the contravention is established.

8. The mother asserts that her expertise renders the learning support for the child unnecessary and it is for that reason that the child was removed from that learning support group. She also asserts that the child was placed into that group unilaterally by the husband despite both parents having (by reason of there being no order in respect of parental responsibility at the time) parental responsibility for the child. It might be inferred that such parental responsibility which the parties possess pursuant to s 61C of the Act is to be exercised jointly and separately.

9. The issue is whether the mother had reasonable excuse for that contravention. “[R]easonable excuse” is defined in s 70NAE of the Act.

10. The discussion previously outlined in respect of parental responsibility might flow as a result of reading paragraph 2 by those conversant with parental responsibility and that which it might mean. Experience shows that even some lawyers would appear to be unaware of the positive obligations imposed by s 65DAC of the Act.

11. Whether parents should, as a matter of common decency and courtesy confer and consult with each other in respect of major long-term issues (as they plainly should) is not the issue before me. Did the mother, at the time of the contravention, understand the obligations imposed by an order that simply provided for the parents to have “shared parental responsibility”? Was any lack of understanding the reason, or a substantial part of the reason, for the contravention which I find is established?

12. I find that the mother did not understand the obligations imposed by the order at the time of that contravention, and all the more so because the father had himself acted unilaterally in making the decision for the child to participate in that programme. I find the mother has reasonable excuse for that contravention (s 70 NAE(2)(a)) and I am  satisfied that the mother ought to be excused (s 70NAE(2)(b)).

13. The second contravention alleged by the father is a contravention of paragraph (4)(f) of the orders made by Jarrett FM.

14. That paragraph provides for the children to spend alternate weeks with their parents commencing on a certain date. However, the preceding subparagraph provided for time with the mother in the first half of school holiday periods commencing September 2011 and in alternate years thereafter and the second half of the school holiday periods in 2012 and alternate years thereafter. In April 2012, each of the processes contemplated by those two sub-paragraphs of the orders had commenced.

15. It is asserted that the mother, without reasonable excuse on 27 April 2012 withheld the children from the father “for the first two weeks of term and did not give the father one of these weeks”.

16. Conflicting evidence attends why that occurred. The mother contends that she requested from the father his confirmation that time would occur in a certain manner and on certain dates and indicated in that correspondence that, should the father respond with silence, then her interpretation would be accepted. She asserts the father did not respond. The father has a different version.

17. I find myself unpersuaded by either party’s evidence on the balance of probabilities. What seems clear is that the children did not come in to the father’s care in what was the first week after the school holidays. According to the sequence in the orders, that ought to have occurred. I find the contravention is established.

18. However, it seems to me that genuine confusion attended that failure by reason of the mother contending that a consent arrangement between the parties saw a sequence different to that which might otherwise have been provided for on a strict interpretation of the orders. I am satisfied that the mother contravened the order because, or substantially because, she did not understand the obligations imposed by the order insofar as the order provided for a sequence to be adhered to for time.

19. Reasonable excuse is established pursuant to s 70NAE(2) if, in addition, I am satisfied the mother ought be excused. I am so satisfied.

20. The third contravention alleged by the father is that which was earlier referred to, namely that information about the children’s care was provided orally rather than in writing.

21. The father sought to tender a recording (recorded by him without the mother’s knowledge or consent). In the circumstances of this particular case, I determined to permit that tape to be played. It was played, but no audible words could be discerned. An attempt was made to enhance the recording so that it could be heard. Those attempts failed.

22. There is no evidence before me save that which is contended by each of the parties. I am not persuaded to the requisite standard by the evidence of the father that in fact, care information was communicated in the manner as alleged.

23. The contravention is not made out.

The Contraventions Alleged by the Mother

1. Two of the eleven contraventions asserted by the mother have been dealt with earlier in these reasons.

2. Otherwise, the first contravention alleged by the mother is that, on 31 December 2011, paragraph 7 of the orders made by Jarrett FM was contravened by reason of the father failing to pay for one half of the report from Dr C, a psychiatrist. By way of background, that order provided that the report was to be received as a precondition to additional and increasing time being spent by the mother with the children.

3. The mother tendered a Child Support Payee Transaction Statement. The father asserts that he was confused about what the mother wanted, but assumed that it was permissible for him to pay the relevant sum ($90) to the Child Support Agency. The record tendered by the mother establishes that the $90 was paid. (The whole of the doctor’s account was paid initially by the mother’s new husband.)

4. The contravention cannot be made out by reason of the husband not paying – the evidence is plainly to the effect that he did. The mother contends, however, that he did not pay because the $90 contributed to the Child Support Agency was in fact only part of the child support owing by him which, she alleges, has not been paid as and when it falls due, but spasmodically and in differing amounts.

1. On the evidence before me, I can make no finding as to whether the $90 was paid additionally to any child support owing (as it ought to have been). The evidence before me shows no more than that $90 (conceded as one half of the amount owing) was in fact paid in the manner earlier referred to.

2. The contravention is not made out.

3. The second contravention alleges that the father failed to attend handover, but the handover was effected instead by his wife. The relevant order alleged to have been contravened is contained in paragraph (4)(f). Paragraph (4)(f) says nothing about changeovers and provides solely for alternate week time.

4. That contravention is dismissed.

5. The third contravention alleged by the mother is that, contrary to paragraph 14 of the orders made by Jarrett FM, the father failed to take the children to acrobatics and gymnastics on a weekly basis.

6. Paragraph 14 of the orders provides that “the mother and father shall ensure that the children attend any extra-curricular activity that occurs during time spent as notified by the other parent”.

7. Competing versions of what is understood by the order (which, it might be noted is unrestrained in its terms) were given in evidence by each of the parties. In effect, each of the parties contended that “reasonableness” should attend, or be implicit in, the terms of that order. They each contended that, in effect, each of them could enrol the children in as many activities as each of them deemed appropriate and the order would then oblige the other party to ensure their attendance.

8. At least in theory, the terms of the order might bring about that result. Undoubtedly, the order as made, contemplated that each of the parents would behave with common sense and intelligence in the best interests of their children. That assumption was markedly misplaced with these parents. Nevertheless, the terms of the order are plain enough. In terms of what needs to be established, I find that the contravention is made out.

9. However, given the matters to which I have just referred, it seems to me that any contravention occurred because, or substantially because, the father did not understand the obligations imposed by the order. He did not understand it because he considered that it could not mean literally what it said; the mother could enrol their children in an activity on each of “his” seven nights with the children and he would be obliged to take them (as, it should be noted, could the father with a concomitant obligation upon the mother).  I find that the father had reasonable excuse and that it is appropriate that he be excused (s 70NAE(2)).

10. The next contravention alleges that paragraph 18 was contravened over a period of time between 4 May 2011 and 17 January 2012 and again on

    
    

    13 August 2012 by reason of the father “continuing to take all four of our children to psychologist [Ms E] without [the mother’s] agreement”.

11. Paragraph 18 of the orders provides “the mother and father obtain the other’s consent in relation to any proposed medical treatment for the children in relation to the long-term health issues, except in the event of any emergency”. I am not satisfied that the counselling referred to (irrespective of any other factual allegations and counter-allegations that might exist in respect of the consultations) constitutes “proposed medical treatment” within the meaning of the order.

12. I find that the contravention is not established.

13. Next, it is alleged that paragraph 19 of the orders was contravened on 15 August 2011 by the father failing “to attend mediation at the Family Relationship Centre, [F Town] …” Paragraph 19 requires the parties to “enrol forthwith and attend as required, the [F Town] Family Relationship Centre, for the purpose of developing and maintaining communication strategy between them.”

14. The evidence reveals (yet again, unsurprisingly) a conflict between each of the parties. I am not persuaded by either party’s account. Such evidence as I find established is to the effect that there may have been some confusion about attendance or, perhaps more accurately, attendance together.

15. I find that the contravention is not made out.

16. The mother alleges that on 8 July 2012, paragraph 21 of the orders which provides that “the children be at liberty at all times to telephone the parent that they are not currently spending time with” was contravened on 8 July 2012 by the father preventing “our children from making a phone call to us”.

17. There is no evidence before me which satisfies me of that.

18. Moreover, the order, in terms, places no obligations upon either party. The order simply says that the children are free to make telephone calls when they might choose. There is contained within that order an implicit obligation that the relevant parent would facilitate such telephone calls if and when that choice was exercised by that child or children. But, there is no evidence before me which satisfies me that any such choice was made and was, in turn, not facilitated by the father.

19. The contravention is not made out.

20. Precisely the same evidentiary considerations apply, as I find, to the allegation that, contrary to paragraph 22, the father did not make two of the children “available for phone calls with [the mother] and also failed to provide [the mother] with the contact details for phone calls”. The father deposes to the children each having their own phones.

21. I am not satisfied on the evidence before me that the order has been contravened in the manner alleged by the mother.

22. The contravention is not made out.

23. The mother alleges that on 28 June 2012, contrary to paragraph 23 of the orders made by Jarrett FM, the father failed to make the children available at handover at 2.00pm. The father (and his wife) allege that the changeover was effected at 2.05pm. The mother alleges that it occurred at 2.30pm. I am not satisfied on the evidence before me that the changeover occurred at 2:05pm or 2.30pm. Because I cannot be satisfied precisely when changeover did occur, the contravention as particularised by the mother is not made out.

24. Finally, the mother alleges a contravention by reason of the father failing to return a number of items specified at paragraph 27 of the orders.

25. The father gives evidence that such items as he has been able to locate have been returned. The mother concedes that some items have been returned, but alleges that there are other items that the father has either in his possession, or has moved and “sold to charity shops”. I am not satisfied that there is sufficient evidentiary foundation for the allegation made by the mother. That contravention is dismissed.

26. As a result of the findings made by me, the Application for Contravention of Orders filed by each of the parties is each dismissed.

27. The parties flagged the possibility of an application for costs being made by each of them in respect of the applications. Both have been wholly unsuccessful. Both are self-represented. There will be no order as to costs.

I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 8 November 2012.

Associate: 

Date:  8 November 2012