Zane & Ikeda
[2022] FedCFamC2F 867
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zane & Ikeda [2022] FedCFamC2F 867
File number(s): MLC 3391 of 2018 Judgment of: JUDGE HARLAND Date of judgment: 4 July 2022 Catchwords: FAMILY LAW – contravention application – 53 counts proceeded with – contraventions fall into five categories – prima facie case – whether or not mother has reasonable excuse – purpose of compliance regime. Legislation: Family Law Act 1975 (Cth) ss 70NAC, 70NAE, 70NAF(1), 70NBA, 70NEB, 70NEC, 70NFB, 70NFC, 70NFE, 70NFG Division: Division 2 Family Law Number of paragraphs: 95 Date of hearing: 9-10 May 2022 Place: Melbourne Counsel for the Applicant: Mr G Glezakos Solicitor for the Applicant: Leslie Family Law The Respondent: Appeared In Person ORDERS
MLC 3391 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ZANE
Applicant
AND: MS IKEDA
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
4 JULY 2022
THE COURT DECLARES THAT:
Mother Contacts X
1.Count 2 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
2.Count 8 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
3.Count 10 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
4.Count 12 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
5.Count 14 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
6.Count 18 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
7.Count 20 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
8.Count 24 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
9.Count 30 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
10.Count 32 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
11.Count 34 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
12.Count 38 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
13.Count 40 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
14.Count 42 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
15.Count 44 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
16.Count 48 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
17.Count 52 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
18.Count 54 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
19.Count 56 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
20.Count 58 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
21.Count 60 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
22.Count 64 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
23.Count 66 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
24.Count 84 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
25.Count 94 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
26.Count 97 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
27.Count 102 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
28.Count 104 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
29.Count 111 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
Mother Contacts Z
30.Count 26 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
31.Count 73 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
Mother Contacts X and Z
32.Count 128 of the contravention application is proved with the respondent having contravened order 7 of the orders made on 26 November 2020 without reasonable excuse.
Mother Responds and Fails to Notify Father Regarding Unauthorised Contact
33.Count 16 of the contravention application is proved with the respondent having contravened order 9 of the orders made on 26 November 2020 without reasonable excuse.
34.Count 27 of the contravention application is proved with the respondent having contravened order 9 of the orders made on 26 November 2020 without reasonable excuse.
35.Count 28 of the contravention application is proved with the respondent having contravened order 9 of the orders made on 26 November 2020 without reasonable excuse.
36.Count 29 of the contravention application is proved with the respondent having contravened order 9 of the orders made on 26 November 2020 without reasonable excuse.
37.Count 79 of the contravention application is proved with the respondent having contravened order 9 of the orders made on 26 November 2020 without reasonable excuse.
38.Count 80 of the contravention application is proved with the respondent having contravened order 9 of the orders made on 26 November 2020 without reasonable excuse.
39.Count 99 of the contravention application is proved with the respondent having contravened order 9 of the orders made on 26 November 2020 without reasonable excuse.
40.Count 100 of the contravention application is proved with the respondent having contravened order 9 of the orders made on 26 November 2020 without reasonable excuse.
Mother’s Agent Contacts Children
41.Count 68 of the contravention application is dismissed.
42.Count 77 of the contravention application is dismissed.
43.Count 78 of the contravention application is dismissed.
44.Count 83 of the contravention application is dismissed.
45.Count 93 of the contravention application is dismissed.
46.Count 96 of the contravention application is dismissed.
47.Count 101 of the contravention application is dismissed.
48.Count 110 of the contravention application is dismissed.
49.Count 114 of the contravention application is dismissed.
50.Count 115 of the contravention application is dismissed.
51.Count 120 of the contravention application is dismissed.
Mother’s Agent Contacts School
52.Count 1 of the contravention application is dismissed.
Mother Fails to Immediately Return Children to Father’s Care
53.Count 125 of the of the contravention application is dismissed
Further hearing
54.The proceedings are listed for Penalty Hearing on 7 October 2022 at 10.00am.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Zane & Ikeda has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
The father pursues his contravention application, amended on 3 August 2021 with respect to parenting orders for Z and X. Z was born in 2007 and is 15 years old. X was born in 2010 and is 11 years old.
Pursuant to Notation A of the Interim Orders made on 12 August 2021, the Applicant did not proceed with each and every count. The father filed a case outline on 28 March 2022 indicating that he would proceed with 53 of the 128 counts.
The contraventions the father pursued at hearing fall into 5 broad categories as follows:
(1)The mother text messaging X without the father’s written consent;
(2)The mother text messaging Z without the father’s written consent;
(3)The mother failing to immediately inform the father about contact she received from the children and responding to the children’s messages;
(4)The mother engaging Ms B as her agent to contact the girls’ school on her behalf;
(5)The mother engaging Mr C as her agent to contact the girls on her behalf on 11 occasions.
After hearing evidence from both parties, I was satisfied that the father had established a prima facie case. The mother acknowledged that she understood the final orders made 26 November 2020. She was legally represented at the time. The mother says she has a reasonable excuse to the contraventions alleged.
The mother relied on the following documents.
(1)Affidavit of the mother filed 26 April 2021;
(2)Affidavit of the mother filed 24 July 2021;
(3)Affidavit of the mother filed 5 August 2021;
(4)Affidavit of the mother filed 31 January 2022;
(5)Affidavit of the mother filed 15 April 2022; and
(6)Exhibit number 4, Reasons for Decision of the Children’s Court of Victoria handed down 3 March 2022.
For reasons that I shall give I find that counts 2, 8, 10, 12, 14, 16, 18, 20, 24, 26, 27, 28, 29, 30, 32, 34, 38, 40, 42, 44, 48, 52, 54, 56, 58, 60, 64, 66, 73, 79, 80, 84, 94, 97, 99, 100, 102, 104, 111, and 128 are proved. I am satisfied that the mother breached those orders without reasonable excuse. I dismiss counts 1, 68, 77, 78, 83, 93, 96, 101, 110, 114, 115, 120 and 125.
LEGAL PRINCIPLES
The father’s contravention application commenced pursuant to Division 13A of Part VII of the Family Law Act 1975. Section 70NAC of the Act sets out what it means to contravene an order. If a person bound by the orders intentionally fails to comply or makes no reasonable attempt to comply with the order, then they have contravened the order.
If a party is found to have contravened the order the Court must consider whether not the party has a reasonable excuse as defined by section 70NAE of the Act. The definition is not exhaustive. It includes the person being bound by the order not understanding their obligations under the orders. A person may also have a reasonable excuse if they believed on reasonable grounds that it was necessary to protect theirs or the child’s health and safety.
The standard of proof in contravention proceedings is on the balance of probabilities: (s.70NAF(1) of the Act).
Division 13A of Part VII empowers the Court to do certain things depending on whether the contravention is alleged but not established (subdivision C), whether the contravention is established but a reasonable excuse for the contravention is found (subdivision D) and whether the contravention is found without reasonable excuse – or to be a less serious contravention (subdivision E) and finally where contravention is found without reasonable excuse but more serious contravention (subdivision F).
If the contravention falls within subdivision E, the Court may order any of the following under section 70NEB:
70NEB Powers of court
(1) If this Subdivision applies, the court may do any or all of the following:
(a) make an order directing:
(i) the person who committed the current contravention; or
(ii) that person and another specified person;
to attend a post-separation parenting program;
(b)if the current contravention is a contravention of a parenting order in relation to a child—make a further parenting order that compensates a person for time the person did not spend with the child (or time the child did not live with the person) as a result of the current contravention;
(c)adjourn the proceedings to allow either or both of the parties to the primary order to apply for a further parenting order under Division 6 of Part VII that discharges, varies or suspends the primary order or revives some or all of an earlier parenting order;
(d)make an order requiring the person who committed the current contravention to enter into a bond in accordance with section 70NEC;
(da)if the person who committed the current contravention fails, without reasonable excuse, to enter into a bond as required by an order under paragraph (d)—impose a fine not exceeding 10 penalty units on the person;
(e) if:
(i)the current contravention is a contravention of a parenting order in relation to a child; and
(ii)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii)the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii);
(f)make an order that the person who committed the current contravention pay some or all of the costs of another party, or other parties, to the proceedings under this Division; and (g) if the court makes no other orders in relation to the current contravention—order that the person who brought the proceedings in relation to the current contravention pay some or all of the costs of the person who committed the current contravention
If the contravention falls within subdivision F, the Court may order any of the following under section 70NFB:
70NFB Powers of court
(1)If this Subdivision applies, the court must, in relation to the person who committed the current contravention:
(a)make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and
(b)if the court makes an order under paragraph (2)(g)—consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and (c) if the court does not make an order under paragraph (2)(g)—make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.
(2) The orders that are available to be made by the court are:
(a)if the court is empowered under section 70NFC to make a community service order—to make such an order; or
(b)to make an order requiring the person to enter into a bond in accordance with section 70NFE; or
(c)if the current contravention is a contravention of a parenting order in relation to a child—to make a further parenting order that compensates a person for time the person did not spend with the child (or the time the child did not live with the person) as a result of the current contravention, unless it would not be in the best interests of the child concerned to make that order; or
(d)to fine the person not more than 60 penalty units; or
(e)subject to subsection (7), to impose a sentence of imprisonment on the person in accordance with section 70NFG; or
(f)if:
(i)the current contravention is a contravention of a parenting order in relation to a child; and
(ii)the current contravention resulted in a person not spending time with the child (or the child not living with a person for a particular period); and
(iii)the person referred to in subparagraph (ii) reasonably incurs expenses as a result of the contravention;
to make an order requiring the person who committed the current contravention to compensate the person referred to in subparagraph (ii) for some or all of the expenses referred to in subparagraph (iii); or
(g)to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h)to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
There is no suggestion on the facts of this case that if the contravention is established, it is a more serious contravention as contemplated by subsection F.
The applicant bears the onus of establishing a prima facie case. Once this is established, the onus shifts to the respondent to establish that she has a reasonable excuse.
PLACING THE CONTRAVENTIONS IN CONTEXT
It is necessary to set out some background in order to understand the context of the father’s contravention application. The father initiated parenting proceedings in 2018. Interim orders made on 21 May 2019 provided for a change of residence to the father’s sole care for which I handed down reasons, explaining why I thought it was in the children’s best interests to immediately switch the children’s residence and restrain the mother from seeing or communicating with the children. The matter had a four-day final hearing on 7, 8 and 9 September 2020, and 14 October 2020. Whilst judgment was reserved the parties entered into a consent agreement and final parenting orders were made on 26 November 2020. Those orders are prescriptive. The alleged contraventions are all with respect to either orders 7, 9, 10 or 14 of the final orders made 26 November 2020.
I set out paragraphs 17 to 23 of my reasons dated 21 May 2019:
Turning to that second affidavit and the text messages, there is a concerning pattern in those messages of the mother communicating with [Z] whilst she is in the father’s care and what is of most concern is the content of those messages. I am not going to recite all of them, but what they indicate is a concerning pattern of the mother encouraging [Z] to play up for her father and ask to go home. What is really concerning is that there is a consistent pattern of these types of messages for the past several months. Early examples include the mother telling her not to show the father that it is her on the phone and that she should start coughing and saying that she feels sick and wants her own bed. [Z] reported that she said that to her father and that her father had said that he was there for her and the mother saying that she should say “I just want my bed. It’s not that hard to say” and [Z] replying that she would try and then further replying that the father said he would look after her. There are other messages where the mother asks her to delete the messages from the phone. There is a message where [Z] reports to her mother that the father told her that he would take away the phone and next time no phones would be allowed and so she told him that she would call the police. The mother replies – and this is in July 2018 – that the orders do not say that she cannot have a phone, so she should let him try.
And what is concerning about these early messages is that quite apart from the fact that it appears to be in breach of order 5 of the orders made on 3 July 2018 – and the important point there is that it is about the mother initiating the communications with the children – but it is the attempts by the mother to undermine the children’s relationship with their father and also involving [Z] in the dispute and quite plainly telling her that the orders do not say that she cannot have a phone, for example.
There are messages in September where [Z] has asked her mother to pick her up, the mother saying that she will come and get her and also telling [Z] to make sure she deletes the messages from both phones. Concerningly, a message that just says:
Make sure you tell them everything. Swearing, yelling, finger in your face. Everything.
And then saying:
Delete messages from me.
There are then texts which appear to be the mother encouraging [Z] to message her father, saying that their mother asks every day if they want to call him, but that they are still angry with him and that they do not want to, and this is in March 2018. Then there is a message where [Z] says:
Don’t even try to text or ring me.
She calls her father a “shit father” and complains about the father keeping her phone and asks about her Goosebumps books and makes other complaints about him and refers to him as “[Mr Zane]” and not “dad”.
The mother refers to the text messages in her affidavit of 6 May and 20 May and says that where she was quoted as saying “It’s not that hard to say and speak calmly,” for example, she was just encouraging [Z] to express her feelings to her father. The mother annexes to her affidavit a handwritten note from [X] complaining about her father and says that she found that note in [X]’s bag, written on the father’s work letterhead. She says that the messages sent in September were trying to reassure [Z] after there had been several incidents whilst in the father’s care. The mother also says that the father has shown damaging messages, but not messages of no substance.
She also says that the father has known about the communication between them all throughout and in this regard, exhibit B, which the mother relied on, is a letter from her lawyers to the father’s dated 13 March 2019, which the mother says supports her contention that the parties have been communicating freely for the past six months. That letter says that:
The mother’s instructions are that the parties have enjoyed a successful co-parenting arrangement for six months and that both are working well together for the benefit of the children.
It seeks to discharge order 5 of the orders made on 3 July 2018, noting that the children have been communicating with the mother during their time with the father with the father’s consent.
I observe that, certainly, the parties’ affidavits and the text messages do not indicate a cooperative co-parenting relationship. That letter contains the assertion from the mother that they are cooperating and the father consents to her communication with the children, but does not indicate that the father agrees with that proposition.
The mother made similar references in her evidence during the contravention hearing that the parents have been working together and communicating freely.
When cross-examined, the mother agreed that part of the reason for the interim orders placing the children in the father’s care and restraining the mother from having any contact, was because the mother would communicate with the children without the father’s knowledge and give them instructions undermining the father’s parenting.
The father is not alleging contraventions against the mother on the dates that Z went missing, where the mother was assisting the police and the father in trying to make contact with Z.
ALLEGED CONTRAVENTIONS
Mother contacts X
The father pursued 29 counts where the mother allegedly contacted X via mobile phone in contravention of Order 7 of the final orders made 26 November 2020. Those counts are counts 2, 8, 10, 12, 14, 18, 20, 24, 30, 32, 34, 38, 40, 42, 44, 48, 52, 54, 56, 58, 60, 64, 66, 84, 94, 97, 102, 104, and 111.
I will not set out each count individually as the mother does not dispute that she contacted X on the dates alleged. She was cross-examined about all the individual counts in their categories. The contraventions allege the mother contacted X by text between 26 November 2020 and 19 December 2020.
Order 7 of the final consent orders says:
Save as explicitly provided for in these Orders, the Mother, her servants and/or agents be and are hereby restrained from spending time with or communicating or attempting to communicate with [Z] and [X] or either of them by any means, including but not limited to telephone, text message, email, via social media, via “applications”, online forums and the like.
Order 8 is also relevant. It states:
For and by way of clarification of Order 7 herein, the servants and agents of the Mother include the Mother’s friends and their family members.
The father relied on material produced by way of Affidavit, and a copy of X’s phone bill which outlined various communication that had taken place between the Mother and X via SMS and telephone over the period of 26 November 2020 to 23 February 2021.
Some of these counts outline multiple texts on the same day. Sensibly, the father did not seek to pursue those as individual counts. The father’s counsel handed up an aide memoire which summarised the subpoenaed telephone records. The mother had been given an opportunity to inspect the subpoenaed record and check the aide memoire for its accuracy. She accepted its accuracy, avoiding the need for the phone records to be tendered. The parties agreed that the records did not adjust for daylight savings and agreed that as a result some entries were an hour out of time.
The mother cross examined the father making the point that the father allowed her to see the girls on occasions, including birthday functions for X and Christmas at the maternal grandmother’s house. It was clear from the mother’s submissions and cross-examination of the father that at one point the father was allowing her to have various interactions with the girls over a period of months. The mother complained that the father chose isolated incidents to pursue as contraventions. This vastly oversimplifies the father’s application. The contraventions he focusses on involve precisely the type of behaviour that was a risk to the children’s emotional and psychological welfare. That risk stems from the mother’s unilateral and intrusive communication with the girls, undermining the father’s parenting.
The father was adamant that he never gave the mother permission to message the girls and did not know that she was doing so. The father readily agreed that he and the mother communicated regularly during this period in order to organise family functions. The distinction the father makes is important as he was present when the mother was with the girls.
The mother accepted that she understood the orders and her obligations under them. She understood that there were very specific restrictions on her. She said she thought she could contact the girls with the father’s permission. She conceded that she knew that permission had to be in writing. She further confirmed that she understood that she could not contact the girls and could not engage third parties to contact the girls on her behalf. Further, she understood that she was not permitted to respond to messages from the girls and was obliged to immediately inform the father about any contact from them.
The mother conceded that a significant feature of the previous proceedings was that the mother had been communicating with the girls in secret and in a way that was undermining the father’s parenting. It was for this reason that the final consent orders were carefully crafted and very prescriptive about the mother contacting and being able to spend time with the girls. The mother confirmed she received legal advice before agreeing to the orders.
The mother conceded the father supervised her phone calls with the girls and the in person time she spent for X’s birthday and Christmas. There was no reason for her also to be messaging the girls. I do not accept that the mother’s evidence that the father knew about her messaging the girls. I do not accept that he gave oral permission. I accept the father’s evidence that he did not know about the messages.
The first breach occurred on the very day the orders were made on 26 November 2020, which was X’s birthday. When cross-examined, the mother agreed that she knew she needed written permission from the father to communicate with the children and that oral permission was not enough. The mother claimed that there was one email where the father gave permission and she would try and find it. No email or text message was produced by the mother. I reject the mother’s evidence that the father knew about that contact and consented to it. It simply does not make sense, and was unnecessary given the face-to-face contact the mother was having. In some instances there was multiple contacts on the same day, and the contacts varied from being early in the morning to late at night.
I accept that the parents were in contact with each other and arranged several joint celebrations for X’s birthday. I reject the mother’s evidence that the father gave her oral permission to text X. This was the day the orders were made. Given there were joint celebrations there was simply no need for the mother to text X as well. It would have been open to the father to prevent the mother from having any kind of contact with the girls other than as allowed for in the orders, which required supervision due to his previous experiences.
There is no doubt that this has been a very difficult and challenging situation for the parents and children, and it is clear that the father has made arrangements with the mother outside of the orders attempting to avoid further proceedings. Perhaps a criticism that can be made of the father is that he was somewhat naïve and too accepting that the mother would not contact the children other than as permitted by the orders or as agreed to by him in writing. Given the amount of contact the father was allowing, noting that it was during the period of X’s birthday and then Christmas, there is even less reason for the mother to be in contact with the girls via text, MMS or telephone.
The mother annexes a text message to her affidavit filed on 26 April 2021 as an example of the messages she said, pointing out that it was not denigrating of the father. The message was to X on 26 January 2021 with the mother saying she loves her and that she was thinking of her always and X responding saying “love you too”. There is also the beginning of a message the next day with the mother contacting her saying ‘good morning love you too’.
The content of the messages is irrelevant due to the terms of the orders. The mother was unable to produce any written evidence showing that the father gave her permission to message the girls.
In her affidavit filed 2021, the mother refers to the contacts they had as a family for X’s birthday and Christmas and attaches her phone records to show that she and the father were in contact with each other. This is not in dispute. The mother says that the father sent her an email on 12 February 2021 asking her to no longer send X any messages and not contact him again via email. She says she complied with that request. She does not annex that email to her affidavit.
I do not accept the mother’s evidence that she was messaging the girls at the father’s requests asking them what they wanted for Christmas. There was simply no need for the mother to do so, and the fact that the father transferred money to her bank account for her to purchase gold class tickets and buy gifts for the girls is not supporting evidence of that. The mother was cross-examined about the text messages between the parents where the father texted the mother asking what Y needed for Christmas and referred to getting her sports shoes and the mother responded telling him to just get her the shoes. Those texts took place on 24 November 2020 before the orders were made.
I do not accept the mother’s evidence that the father allowed her to text message the girls on Christmas Day when arrangements had been made for the mother to spend time with the girls on Christmas Day and supervised by him at the maternal grandmother’s home. There is simply no reason for him to do that. Nor was there any need for her to message them when she was going to see them shortly. Again, it must be remembered that this is in the context of the mother’s undermining and damaging conduct in the messages that she has sent the girls previously. The mother was cross-examined about other messages she sent to the father at this time. These messages show that at the same time the father was making arrangements for the girls and the mother to spend time together at Christmas and for the arrangements around X’s birthday, the mother was messaging the father complaining and pressuring him to, in effect, undo the orders. Even more, she was also sending X multiple messages of unknown content. I reject the mother’s claim that she shared the content of those messages with the father verbally at Christmas.
The mother was also cross-examined as to why she only annexed one text message to her affidavits. The mother said she was simply providing a sample of the innocuous communication. She was pressed that a sample would be more than one. Firstly, as the father’s counsel noted, sending any message without the father’s written permission is a breach of the order regardless of the contents of the message. Further, in the context of the history of this matter and particularly noting the extract from the interim reasons above, the lack of annexing other messages leaves a question mark to whether all the messages were as innocuous as the mother claims. The father does not have any of these messages, he has established the messages and phone calls took place through the telephone records.
The mother annexes a text message from her to the father asking permission to say hello to their daughter after school. The messages are not dated but the mother believes it was for X’s birthday in 2021. The mother was asked what the relevance of that message was given that it is some six months after the last contravention alleged against her. She said she included her because she wanted to show that she had asked permission and also wanted to show the Court that she thought mediation would be a good idea. The mother then said she included it because she has not seen or spoken to X on special occasions for the past year. She says she kept that message some three months because it was with respect to mediation.
The mother was also cross-examined about a text message that she sent to the father at 10:08PM on 26 November 2020, the night the orders were made where she said:
Now that the final orders are done, I am asking you again for [Y] to stay with me in reality. Her schoolwork has already gone downhill in the last eight days.
Other messages between the parents including the mother texting the father on 13 December 2020 referring to his relationship with Z being severed forever if she is forced to live where she does not want to (exhibit 6). She was cross-examined about other messages that she sent the father around that time. She refers to being punished, having given up everything, being homeless and that she had told Z to pack because she would not go to jail for anybody. The messages from the mother in the days after the recovery order and in the lead up to Christmas were bitter and manipulative. It is clear from the text exchanges in exhibit 11 that the mother was not encouraging Z to accept living with her father but was continuing to pressure him (exhibit 11).
A recovery order for Z to be returned to her father was issued on 15 December 2020. On 10 December 2020, the mother sent the father texts referring to Z saying she would never be at peace, that she was doing great at school and not doing anything bad and that she wants to live with her saying “she hates us both because I cannot help her, and you will not release her. I understand her feelings.” those text messages are Exhibit 6.
The mother continued to insist that the father gave her permission to communicate with X when it was put to her that she sent X 10 messages in November. At several points during her cross-examination, the mother referred to taking X horse riding for her birthday. The mother referred to photographs showing that the father was not present when she took X horse riding. When the father’s counsel put to the mother that the issue in dispute was not that he allowed the mother to spend some unsupervised time with X and Z the mother replied, “but how come it is okay if it is unsupervised to take two hours away from him?” The mother went on to insist that she had an unsupervised visit with X. This takes on some significance.
Again, when the mother was pressed on the fact that the father never provided written permission she said again that he allowed unsupervised time, “so why would not he allow a phone call?” The father did not allow the mother to have unsupervised time. The mother claimed to have spent unsupervised time with X on 2 December 2020. This is not true. This incident is discussed further below.
The records show the mother making numerous contacts in one day at various times of day from early in the morning to late at night. When asked when she alleges the father first allowed her to have the children unsupervised, the mother said it was when they discussed X going horse riding. She said that Z was there and did not want to go if the father was going. She referred to the date being on the photos that she annexed to her affidavit and refers to the horse riding activity being for X’s birthday. The mother was called to produce an email which she claimed to exist with respect to the father allowing her to communicate with the girls directly. The mother was unable to produce the email, but did submit emails with respect to the horse riding.
The mother was cross-examined about the emails she provided with D Riding School about X being booked for a horse riding session on 2 December 2020. The mother referred to the fact that the email showed her electronic signature as a parent. This does not establish that the mother signed X in that day and the school confirmed they could not provide a record of the Covid-19 check in. All the email establishes is that the mother made the booking and signed the waiver required when booking.
It is clear from exhibit 11 that the father sent the mother photos of X horse riding on 2 December 2020 and that is why the photos were on her camera roll. The mother said that she went to the school and she had taken X there two years ago. She then conceded that she must have taken them in July 2020 before the final orders were made.
The mother denied making up taking X horse riding on 2 December 2020 and again said it was two years ago, and that in any event she had organised all the parties and eventually said that “and taking X horse riding does not compare to Z almost committing suicide so I apologise getting the date wrong”.
The father’s counsel put to the mother that the final orders on 26 November 2020 provided that she had to obtain the father’s written permission in order to “even text the girls because of what had happened previously.” In the face of this, Counsel pressed, the mother was asking the court to accept the father was not requiring those specific orders be complied with, that “he just said that’s fine, don’t worry about it”. The mother said, “well, lots of things happened during that time.” She again said that there was a history of the parties getting along well and the children doing well, despite restrictive orders being in place and so those orders had not been followed. Consistent with her argument at the interim hearing, her arguments were contradicted by the evidence.
The mother’s evidence requires the Court to believe that immediately upon the final orders being made and in the days following, the father waived the requirements for the mother to get permission before messaging the girls and in fact permitted her to contact them multiple times. That is simply not credible. The fact that the father was still communicating with the mother and making arrangements for the family to be together for X’s birthday and Christmas, which he was not obliged to do, should not be held against him. In fact what is clear from the text exchanges, which are now exhibits, is that interspersed amongst positive exchanges were comments from the mother designed to pressure the father and which were highly critical of him.
The father was entitled, and in some senses it would have been much easier for him, to simply not allow any contact at all, and it appears that the mother has taken advantage of that. I have real doubts that the mother genuinely believed that she took X horse riding on 2 December 2020. Indeed at this point in the cross examination, I pointed out to the mother the very difficulty with that evidence in this regard. I noted that the very problem that led to the interim orders changing residence in 2019 was because of her unilateral undermining of the father in communicating with the girls. It does not follow that because the father allows for time to occur in his presence on special occasions on X’s birthday and Christmas it therefore means she could take the girls whenever she wanted.
I also cannot accept the mother’s claims that they had a year of getting along because in fact there had been a four day trial in September and October just a couple of months before. It just does not make sense for the father to have gone through the entire court process and persisted with the trial, with all the stress and expense that involves, to within hours of those orders being made agree that compliance was unnecessary.
I reject her evidence and am satisfied that not only did the father never say to the mother that she could contact either of the girls by text or telephone, the mother engaged in multiple communications without the father’s knowledge.
The orders are clear and prescriptive. The contents of the text messages is irrelevant. Even if I was to accept the mother’s contention that those communications were innocuous, the volume of them would have the effect of the girls, and particularly Z, feeling the constant presence of their mother, which would have made it more difficult for them to settle into the new arrangements. It is also clear that the mother continued to press for the father to allow Z to live with her.
Mother contacts Z
The Father pursued 2 counts where the mother allegedly contacted Z via mobile phone in contravention of Order 7 of the final orders made 26 November 2020. These are counts 26 and 73. The contact took place on 4 December 2020 and 25 December 2020 respectively. Count 26 complains that the mother contacted Z by text message and telephone that day. I will not repeat the particulars here. I note that the father is not pursuing each individual contact from that day separately.
The mother was cross-examined about these counts. The mother denied texting and telephoning Z on 4 December 2020. The mother admitted to texting Z on 25 December 2020. She said she texted Z on Christmas morning saying “Merry Christmas”. The mother denied doing this without the father’s consent. Counsel put to her that, in none of the text messages to the father on Christmas day, did she alert the father that she was also texting the girls. The mother agreed there was nothing in those messages but that “it was a given” and it “was in discussion”.
I am satisfied that counts 26 and 73 are made out.
Mother contacts X and Z
Count 128 alleges that the mother breached order 7 of the final orders made 26 November 2020 by communicating with both X and Z on 11 March 2021. On this occasion, the mother attended H Store when the father and children were also there.
The mother was cross-examined about these counts. The timing of her being there is suggestive of having communicated with the girls about the appointment.
I am satisfied that count 128 is made out.
Mother responds and fails to notify father regarding unauthorised contact
Order 9 of the final orders made 26 November 2020 is as follows:
In the event that [Z] and [X] or either of them contact and/or communicate with the Mother by any means save as explicitly provided for in these Orders, the Mother shall immediately report same to the Father and be and is hereby restrained from responding to such contact and/or communication.
The father pursued 8 counts where the mother allegedly failed to immediately notify him of telephone communication that had taken place between the children and the mother in contravention of Order 9 of the final orders made 26 November 2020. These are counts 16, 27, 28, 29, 79, 80, 99 and 100.
The mother was cross-examined about each of these counts. The mother acknowledged receiving a message from X on 1 December 2020 and responding to it. She claims that she does not remember telling the father that she received that message. The mother said that she could not remember if she immediately told the father about Y’s text and telephone call on 4 December 2020 and the text from X and the mother responding to it on 4 December 2020. The mother claims being unable to remember and complained about it being two years ago. It is far more likely that the mother did not advise the father of these communications at all, just as she did not advise him of the multiple communications she sent to the girls.
The mother says that she started reporting everything to child protective services in January 2021. This of course does not alleviate her obligation to report contacts from either child to the father directly. The mother also conceded that she understood that the orders did not alleviate her from immediately contacting the father. When Z turned up at her home on 9 March 2021, the mother said that Z was very difficult to manage that day. The mother accepted the proposition that it was her obligation to make the orders work, not the children.
The father’s counsel pointed out to the mother that she was asking the Court to believe that immediately after detailed orders being made that were very clear with respect to the mother’s obligations if she received communications from the girls that she would not ensure that she complied with the orders and had written permission. Her claim that the parties were getting on well and that she did not feel any need to record these things is simply not credible.
I am satisfied that counts 16, 27, 28, 29, 79, 80, 99 and 100 are made out.
Mother’s agent contacts children
The father pursued 11 counts where Mr C, the current partner of the mother, acted in the capacity as her agent and contacted the children by way of telephone and SMS.
Mr C was subpoenaed by the father to give evidence. Counts 68, 77, 78, 83, 93, 96, 101, 110, 114, 115 and 120 all allege Mr C contacting Z by MMS (picture messages) and SMS text messages, acting as the mother’s agent in breach of order 7. It is not disputed that Mr C contacted Z. The phone records establish this. As with the contravention with respect to Ms B, in order to establish these contraventions the Court must be satisfied that Mr C was acting at the mother’s agent.
When cross-examined the mother denied ever asking Mr C to contact Z of X on her behalf. She claimed that she did not know how Mr C got Z’s phone number.
The mother claimed that her practise is to delete text messages once she has dealt with them. She says that has always been her practice despite being aware of the importance of the messages in the context of this dispute. The mother did not accept the assertion that Mr C hardly knew the girls and had no reasons to contact them other than at her instigation. Again the father is not pursuing contraventions related to the times Z ran away from the father’s home and the mother and Mr C were asked to find her.
The mother was cross-examined about the text exchanges on 11 February 2021. The phone records show Mr C and the mother and texts and picture messages between Mr C and Z some of which he worded to the mother. There are many messages back and forth throughout the day. This was not one of the days where there was trouble with Z. Mr C is exchanging messages with Z in the morning and as late as 11.30pm. There appears to be a complete lack of boundaries. The mother denied ever asking Mr C to contact Z and said that she was generally aware that they were in contact with each other.
Mr C and the mother formed their relationship shortly before the final hearing in the previous proceedings. He knew about the Court proceedings but not the details. As it was early in their relationship he agreed he did not need to know. He said he was aware of a recovery order being made for Z in approximately December 2020. He readily agreed with the dates put to him that he contacted Z. When the father’s counsel suggested to him that he has no reason to contact Z, Mr C replied that “the whole time” they have sent each other messages, she asked him about his dog and things like that. Z loves his dog so he would send photos of his dog.
Mr C said he did not know much about why he was subpoenaed to give evidence. He said he just wants both girls to be happy.
Mr C says that he does not keep messages as his phone is old and has limited memory on it. He says he regularly has to delete things on his phone. There were days where he and Z exchanged numerous messages over a number of hours. The records also shows multiple contact between the mother and Mr C. Mr C says he and Z clicked. He denied the mother asked him to contact Y on her behalf.
I am not satisfied that counts 68, 77, 78, 83. 93, 96, 101, 110, 114, 115 and 120 are established. Those counts require the father to establish that Mr C was contacting Z on the mother’s instructions. It is not enough that the mother was generally aware of that contact. I dismiss those counts.
Mother’s agent contacts school
Order 14 of the final orders made 26 November 2020 is as follows:
In relation to communication between the Mother and [Z] and [X]’s school/s, the following shall apply:
the Mother shall be at liberty to contact the school/s by email to obtain updates in relation to [Z] and [X]’s progress, and the Father shall authorise the school/s to respond to the Mother with such information on each occasion; and
save for the contact permitted under subparagraph (a) herein, the Mother, her servants and agents be and are hereby restrained from contacting or attending [Z] and [X]’s school/s and from attending any extra-curricular activities, sporting events, concerts or the like, unless invited to attend by the Father in accordance with Order 16(b) herein.
The father pursued one count of the contravention of Order 14(b) of the final orders made 26 November 2020. The father alleged that Ms B, a friend of the mother acted in the capacity as her agent and contacted Mr E, Principal of F School of , where Z attends school. The father relied on material produced by way of Affidavit various screenshots of the conversation that had taken place between Ms B and Mr E.
Count 1 alleges that the mother’s friend Ms B, acted as the mother’s agent and contacted Z’s school at 8.05am on 11 February 2021 in contravention of order 14(b) of which the father must establish several elements. Ms B was subpoenaed to give evidence. It is conceded that Ms B contacted the school. The father annexes screenshots of text messages between Ms B and the then principal of Z’s school. Ms B forwarded those to the father. The message says as follows:
Hi [Mr E],
I have an urgent request if possible please…its from [Z]’s mother..She needs in writing best to your knowledge that [Z] was living with her mother in 2020… are you able to do this. Im happy to collect the letter. Thank you. [Ms B]”
This message goes beyond asking for an update about the children’s progress, providing information to the principal. That message does not fall within permissible contact pursuant to order 14(a). However, more is needed to establish this contravention. The father has to satisfy the Court that Ms B was acting as the mother’s agent when she sent this message to the principal.
When cross-examined the mother denied asking Ms B to contact the school principal.
Ms B was cross-examined. Z stayed with her for 3 weeks in January 2021. Ms B sent this message when Z was in the father’s care. Ms B said she was aware that orders were made a few months before. She never saw the orders. She said she was not sure what communication the mother was allowed or not allowed to make. She denied that the mother requested her to contact the school. She said from memory she thought Z asked her to contact the school on 11 February 2021 .She believed that Z told her in a snapshot of a Snapchat group about X wanting to die.
The mother did not have any cross-examination for Ms B.
The message the Ms B sent to the principal on 18 February 2021 is clearly sent at the mother’s request. Ms B conceded that. However that is not the subject of one of the contraventions betting pursued. I am not satisfied that count 1 has been established. In order to be successful it is not enough to establish that Ms B contacted the school, which is not disputed, the father must establish that Ms B did so as the mother’s agent. Both the mother and Ms B denied this. Whilst I have considerable reservations about the mother’s veracity I am not satisfied that this court has been made out. I dismiss count 1.
Mother fails to immediately return children to father’s care
Orders 10 and 11 of the final orders made 26 November 2020 are as follows:
(10)In the event that Z and X or either of them attend upon the Mother at her home or any other location save as explicitly provided for in these Orders, the Mother shall return Z and/or X immediately to the Father.
(11)In the event the Mother fails to comply with Order 10 herein:
(a)The Father may do all things necessary to obtain Police assistance to facilitate Z and/or X’s return to his household; and
(b)The Father shall be at liberty to contact the Chambers of Judge Harland without notice to the Mother for the purposes of an urgent listing of an application for a Recovery Order.
The father pursued one count where the mother allegedly failed to immediately return Z to his care in contravention of Order 10 of the final orders made 26 November 2020. This is count 125. On 9 March 2021, the mother advised the father by telephone at 6:09 pm that Z had attended upon her home. Z was subsequently returned to the father at 7:15 pm. The father pressed that as Z was not immediately returned to his care, the delay therefore amounted to a contravention of Order 10.
When cross-examined about this, the mother said that she did the best that she could in the circumstances. The mother says she checked her phone records and says she called the father twice, and the police five times. The father acknowledged receiving the first call from the mother. The father deposes to Z telling him she had a meeting after school. He waited for her for an hour and then contacted the principal and was advised that she was not at the school.
Whilst the father assumes Z went straight to the mother’s house after school, this was not put to the mother in cross-examination. Therefore, I do not know how long it was between Z turning up at the house and the mother contacting the father. It is apparent from the material before the court that Z’s behaviour was difficult to manage and that Z was very troubled. Given the totality of the circumstances, I am not satisfied that the mother intentionally or did not reasonably attempt to comply with the order. I dismiss this count.
IMPRESSION OF WITNESSES
The father’s evidence was brief. The mother was cross-examined extensively. The mother was keen to present her narrative rather than to answer questions directly put to her. Aspects of her evidence lacked credibility, particularly with respect to the horse-riding activity.
THE MOTHER’S COMPLAINTS
The mother also complains that she has not been able to spend time with X in accordance with the orders as G Contact Centre can only accommodate one supervised visit each school holidays and she cannot afford the costs of private supervision.
The mother included child protection reports which referred to an incident on 3 May 2021 where the mother helped Z visit X before school. The mother told the Department that this was a lapse in judgment and insisted that it was the only time she engaged in that conduct. This did not occur during the period of the contraventions but it does cause me concern. The mother tendered the written reasons for decision from the Children’s Court dated 3 March 2022. The contraventions the father pursues predates the Children’s Court proceedings. It is clear from reading those reasons that Z has been extremely troubled and has been the subject of a lot interventions including placing Z with an aunt and a friend with the remaining options being either residential care or being placed with her mother. The mother also annexed the Children’s Court Clinical Report and reports from Child Protection. In my previous reasons I referred to the change of residence being traumatic and the possibility that the arrangements may break down. That occurred with respect to Z. What these documents indicate is that is that the dynamics in the family are complex. Section 70NBA of the Act empowers the Court to vary the primary parenting order irrespective of whether or not the court finds a person contravened the primary orders. However in this matter the issues are complex. Unless the father consent to a variation of the orders the mother would need to bring an application to vary the orders.
CONCLUSION
I reject the mother’s evidence that the father knew about these contacts and agreed with them. It is not credible. Given the history of the matter and the fact that it was those varied types of communications that was the cause of many of the problems, it simply defies belief that the mother would not ensure that she had permission in writing. The fact that as the mother said they were spending time together and discussing everything together makes it even less credible that the father knew and consented to those contacts.
I have found counts 2, 8, 10, 12, 14, 16, 18, 20, 24, 27, 28, 29, 30, 32, 34, 38, 40, 42, 44, 48, 52, 54, 56, 58, 60, 64, 66, 79, 80, 84, 94, 97, 99, 100, 102, 104, 111 and 128 proved without reasonable excuse and dismiss counts 1, 68, 77, 78, 83. 93, 96, 101, 110, 114, 115 and 120.
I further find that the mother did not have a reasonable excuse. The mother well understood the orders and what the orders prevented her from doing and why. She chose to breach them anyway. The mother was well aware that she needed the father’s written permission to communicate with the girls. The context of the messages are irrelevant given the orders. What also concerns me is the amount of contact made without the father’s knowledge. The frequency of it is intrusive and indicates a lack of boundaries.
I will list this matter for further hearing with respect to whether or not these fall within subdivision E or subdivision F being for more serious contraventions and the appropriate penalties that should apply.
I set out the relevant options open to me so that the mother can consider those. She will also have the opportunity to seek legal advice if she chooses before the next hearing.
I certify that the preceding ninety-five (95) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland. Associate:
Dated: 4 July 2022
0
0