Phone setting “robbed my life” is a breach

Phone setting “robbed my life” is a breach

Drewett & Welsh [2015] FamCA 40 (4 February 2016)

Phone setting “robbed my life” is a breach:

The following is annotated, For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2015/40.html

FIRST APPLICATION

Count 3

18. The alleged breach in respect of paragraph 12(g) of the orders alleges that on 24 September 2014 the mother obtained a prescription from the child’s paediatrician at an increased dosage for the child and subsequently gave that dosage to the child for a period of 30 days. This did not follow a review by the paediatrician and was allegedly not discussed with the father.
19. Paragraph 12(g) of the consent orders provide:-

The mother shall not increase the dosage of or change the type of medication administered to the child to address any behavioural issues unless the treating paediatrician or psychiatrist makes such recommendation in writing after a review and a copy of such written recommendation is provide to the father;

Count 6

20. The alleged breach is in respect of paragraph 20 of the final orders namely, that on 24 November 2014 at 11.54 am the mother sent a screen shot of her own phone screen to the father showing his name in his mobile phone as “robbed my life”. The father alleges that given he calls the child on the mother’s phone it is likely that the child would have seen the manner in which the mother refers to the father.
21. Paragraph 20 of the consent order provides:-

The parties are restrained and injunctions granted restraining each of them:

(a) denigrating the other in the presence of the child or allowing any other person to do so;
(b) …
(c) …
(d) …
(e) …

22. The mother denies the breach.

Count 7

23. The alleged breach is in respect of paragraph 21 of the consent orders in that on 24 November 2014 at 12.21 pm at X Street, Suburb I the mother sent an abusive text message to the father saying that she prayed every day he would die a horrible death.
24. Paragraph 21 of the consent order provides:-

The parties communications as are necessary for the implementation of these orders shall take place by text or email or other written form and shall be conducted in a courteous and respectful manner at all times with the exception that in an emergency concerning the child contact is permitted by telephone but must also be conducted in a courteous and respectful manner.

25. The mother admits the breach, but considers that she had a reasonable excuse.

Count 8

26. The alleged breach is in respect of paragraph 12(a) of the consent orders in that on 21 January 2015 at 10 am at Y Street, Suburb Z, the mother took the child to an appointment with his paediatrician Dr A without informing the applicant that an appointment was occurring and has still not informed him that it occurred.
27. Paragraph 12(a) of the consent orders provide:-

Each party shall give the other at least 14 days notice of any appointment for the child with the agreed treating paediatrician or psychiatrist or any other appointment arranged as a result of the treatment plan of the treating paediatrician or psychiatrist;

28. The mother admits the breach, but says that she had a reasonable excuse.

Count 9

29. The alleged breach is in respect of paragraph 2 of the consent orders namely, that on 20 February 2015 at the AA Hospital, the mother took the child to the hospital for dental surgery including a general anaesthetic without informing the applicant and without his import or consent.
30. Paragraph 2 of the consent orders provides:-

That the parties have equal shared parental responsibility for the child… UPON NOTING the provisions of paragraphs 11 and 12 herein.

SECOND APPLICATION

Count 4

32. The alleged breach is in respect of paragraph 14 of the consent orders in that on 6 September 2015 between 6.30 pm and 7 pm the mother without reasonable excuse refused to allow the father to speak with the child.
33. Paragraph 14 of the consent order provides:-

The father shall have and the mother shall facilitate telephone contact with the child, when the child is in the care of the mother, the call to be initiated between 6.30 pm and 7 pm by the father on Sunday and Wednesday each week, on the child’s birthday or the father’s birthday and on New Year’s Eve, and at 11am on Father’s Day, Christmas Day and Easter Sunday should the child not otherwise have been in his care SAVE AND EXCEPT that the child has been in the father’s care and handed over to the mother on any of the days outlined herein.

34. The mother admits the breach but considers that she has a reasonable excuse.

Count 7

35. The alleged breach is in respect of paragraph 4(a) of the orders in that on 26 September 2015 at 12 pm at Suburb BB the mother refused to allow the father to spend time with the child for a period of 10 days.
36. Paragraph 4(a) of the consent orders provides:-

(4) The child spend time with the father:

(a) in the short school holidays at the conclusion of term 2 for a period of (8) days and at the conclusion of term 3 for a period of (10) days with each period commencing on the first Saturday of the holidays.

37. The mother admits the breach but considers that she has a reasonable excuse,

THE LAW

38. It is Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) that designates the legislative pathway concerning an application for contravention for orders made under the Act. The alleged contraventions as set out arise from the parenting orders made by consent on 8 September 2014.
39. Subdivisions C to F of Division 13A of Part VII provides the orders available to the Court that can be made in instances where:
    <li “=””>(a) the contravention has been alleged but not established (subdivision C);

<li “=””>(b) the contravention is established but reasonable excuse for the contravention is found (subdivision D);<li “=””>(c) the contravention is found to have occurred without reasonable excuse and the contravention is “less serious” (subdivision E); and<li “=””>(d) the contravention is found to have occurred without reasonable excuse and the contravention is “more serious” (subdivision F).

SECTION 70NAC – MEANING OF “CONTRAVENED” AN ORDER

40. A person is taken for the purposes of this division to have contravened an order under this Act affecting children if, and only if:
    <li “=””>(a) where a person is bound by the order – he or she has:
    <li “=””>(i) intentionally failed to comply with the order; or

<li “=””>(ii) made no reasonable attempt to comply with the order.<li “=””>(b) …

SECTION 70NAE – MEANING OF “REASONABLE EXCUSE FOR CONTRAVENING” AN ORDER

(1) The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but not limited to, the circumstances set out in (2), (4), (5), (6) and (7).
(2) A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting the children if:
(a ) the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(c) the court is satisfied that the respondent ought be excused in respect of the contravention.
(3) If a court decides that a person had a reasonable excuse for contravening an order under this Act for the reasons referred to in paragraph (2)(a), it is the duty of the court to explain to the person, in language likely to be readily understood by the person the obligations imposed on him or her by the order and the consequences that may now follow if he or she contravenes the order.
(4) …
(5) …
(6) …
(7) …

SECTION 70NAF – STANDARD OF PROOF

(1) Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.
(2) Without limiting subsection (1), that subsection applies to the determination of whether a person who contravenes an order under this Act affecting children had a reasonable excuse for the contravention.
(3) The court may make an order under:
(aa) paragraph 70NEB(1)(da); or
(ab) paragraph 70NECA(3)(a); or
(a) paragraph 70NFB(2)(a),(d) or (e); or
(b) Paragraph 70NFF(3)(a);
if the court is satisfied beyond reasonable doubt that the grounds for making the order exists.

41. Section 70NEA sets out the manner in which a Court should deal with a contravention in circumstances where it is considered less serious.
42. In respect of a more serious contravention the provisions are to be found at s 70NFA.
43. Rule 21.08 of the Family Rules 2004 (Cth) (“the Rules”) outline the procedure for hearing of an application for contravention orders.

RULE 21.08 – PROCEDURE FOR HEARING

44. At the hearing of an application mentioned in item 1A, 2, 3, 4 or 5 in Table 21.1, the court must:
    <li “=””>(a) inform the respondent of the allegation;

<li “=””>(b) ask the respondent whether the respondent wishes to admit or deny the allegation;<li “=””>(c) hear any evidence supporting the allegation;<li “=””>(d) ask the respondent to state the response to the allegations;<li “=””>(e) hear any evidence of the respondent; and<li “=””>(f) determine the case.

EVIDENCE AND SUBMISSIONS

First Application
Count 3

45. The father relies upon his affidavit filed in support of the first application, but in particular paragraphs 15 to 30. On 25 September 2014 the mother sent a text message to the father advising that the child is now on a different medication “Concerta”. The text message purported to give 14 days notice as was considered necessary by the parties pursuant to paragraph 12(g) of the consent order. Upon further enquiry, the father found out that the child had been given a prescription for “Concerta 36 mgs x 30 tablets”… on 24 September 2014. The mother admits that she obtained a prescription and administered Concerta but it was her evidence that Concerta and the drug Ritalin (at the agreed dose) were exactly the same.
46. The father annexes a number of documents principally being short-form letters of report from the child’s paediatrician Dr A. It is via a report dated 16 February 2015 that Dr A confirms the mother’s request for Concerta and the prescription provided.
47. The father must show on the balance of probabilities that the mother has increased the dosage or changed the type of medication without first obtaining from a treating paediatrician or psychiatrist a written recommendation that the change was required or necessary. The evidence of the father is at best hearsay. He is not able to provide expert evidence and I am not able to take judicial knowledge of the level of active ingredient in the Ritalin medication that appears to have been administered to the child as opposed to Concerta. For her part, the mother does not accept that the two drugs are different. She says that it is the same active ingredient in Ritalin and Concerta. The difference is that Ritalin is a fast acting drug whereas Concerta has the advantage of slow release medication. It seems that whilst the two drugs are easily comparable, Concerta has a higher dose of the active ingredient because it is released more slowly but over a longer period of time.
48. I do not consider that the father has presented evidence of an increase in the dosage, but it is likely that there has been a change in the type of medication administered to the child. That is, a fast acting drug to a slow release drug.
49. The mother did not consider that the drugs were different and I accept that the totality of the evidence presented by the father would suggest that it was reasonable for the mother to consider that whilst the method of delivery was different, the active ingredient was the same and the likely effect on the child no different.
50. Accordingly, whilst the count is proven, the mother has made out a reasonable excuse.

Count 6

51. The father relies upon paragraph 35 in his affidavit. It is his position that the mother has programmed her phone to display the father when he calls as “robbed my life”. The father opines that when he speaks to the child on the mother’s phone it is therefore likely that the child will see the mother’s manner of reference to the father.
52. The mother admits that there was a period when the father’s name would read “robbed my life”, but she denies that the child had ever seen the reference to the father and in any event it has now been deleted.
53. It is difficult to understand the mother’s immature conduct in this regard. She acknowledged that she sent it to the father with the sole purpose of causing irritation and upset. She did not impress her maturity, nor did she have any recognition or understanding that it was completely inappropriate for the child to see the father referred to in the manner as described.
54. I am however not able to find that the child did see the mother’s altered reference and accordingly I do not find count 6 proven.

Count 7

55. The father relies upon paragraphs 36 and 37 of his affidavit. Upon the father raising with the mother his concern that his name in her phone should be exchanged for “robbed my life”, the mother’s response by text message forms Annexure RD6 to his affidavit.
56. Whilst the text message represents barely restrained vitriol by the mother, the portion of the message that the father considers is a breach of paragraph 21 of the consent orders is as follows:-

I hate you. I don’t hate him. I love him… I wouldn’t change anything when it comes to him but I pray every day that you will die a horrible death. It would give me sooooo much satisfaction and [the child] and I could finally have our lives back.

57. It would not be said that the message represents communication that is “conducted in a courteous and respective manner at all times”.
58. I find count 7 proven and the mother has not made out a reasonable excuse.

Count 8

59. The father relies upon paragraphs 38 to 46 of his affidavit.
60. Essentially, the father alleges that the mother took the child to an appointment with Dr A on 21 January 2015.
61. The background is the ongoing dispute between the parties as to whether the child suffers from behavioural disorder that requires medication. The father considers that the child’s behaviour does not require medication, whereas the mother considers that without the medication the child is difficult if not almost impossible to control.
62. The father considers that he should be kept informed of all appointments for the child with any paediatrician or psychiatrist.
63. I do not consider that the order has been breached.
64. Paragraph 12 provides for the circumstances where Dr A is unavailable and the parties are not able to agree an alternative treating paediatrician or accept the advice of any general practitioner regarding another paediatrician or psychiatrist. In those circumstances the order provides the identity of alternative medical practitioners.
65. Dr A however is the agreed paediatrician. Whilst paragraph 12(a) to (k) provides the conditions under which the mother is permitted to administer medication to the child, I do not consider that the order stops the mother (or the father) from taking the child to Dr A providing any medication as may be prescribed satisfies subparagraphs 12(a) to (k). If it is simply a review by Dr A (as distinct from any other medical practitioner), there is no requirement for notice to be given and consequently 12(a) has not been breached. Notwithstanding that the mother admits the breach but says she has a reasonable excuse, I consider that count 8 has not been proven.

Count 9

66. The father relies upon paragraphs 47 to 59 to support his contention that there has been a breach of paragraph 2 of the orders namely, that the parties have equal shared parental responsibility for the child.
67. It is conceded by the mother that the child needed dental work undertaken and that it was of a level of complexity that required a referral to AA Hospital Hospital. It appears that it was not the dental work that was in issue. The father accepts that the child had poor dental health and that reasonably substantial dental treatment was required. The father is concerned that the mother knew that the dental treatment would be administered under a general anaesthetic. He considers that it is a breach of the joint parental responsibility status of the parties that he was not kept informed.
68. Section 61B of the Act contains the following definition of parental responsibility:-

“parental responsibility”, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

69. Parental responsibility is however undefined. Parental responsibility allows a parent to make all such decisions as may be necessary to ensure that a child’s needs are met including medical treatment.
70. Once there has been an allocation of parental responsibility between two people including an order for equal shared parental responsibility, the major decisions for the long term care must be made jointly unless the Court otherwise provides.
71. Subject to any other requirement of the mother to advise the father of the child’s attendance on a health professional, an attendance for routine dental treatment and management would not fall into the category of a major decision or issue affecting the child. A general anaesthetic may well have heightened health consequences and represent a procedure that is not considered “day to day”.
72. I consider that the count is proven, but the mother considers she has a reasonable excuse in that she was not aware at the time she arrived at the AA Hospital that the proposed treatment would entail the child being placed under general anaesthetic.
73. The mother’s evidence was poor, but on balance I do not consider that the father has been able to establish that the mother attended at the hospital with the knowledge that the treatment would involve a general anaesthetic being administered to the child.
74. Count 9 is not made out.

SECOND APPLICATION

Count 4

75. The father relies upon his affidavit filed in support of the second application but in particular paragraphs 28 and 29.
76. The father alleges that he sent a message to the mother telling her that he would ring the child later in the evening of 6 September 2015 pursuant to paragraph 14 of the consent orders. The father tried to call a number of times that night, managed to speak briefly to the child and not thereafter. The mother told the father that the child did not want to speak to him.
77. The mother’s evidence was unimpressive. She was clearly resistant to any ongoing compliance with this order and it was her position that as a result of an alleged assault by the father on her and the child, she had been advised not to comply with the order.
78. I do not accept the mother’s evidence. She did not call any evidence from any person in authority who she says told her that she should not facilitate telephone contact between the child and the father as ordered.
79. I find the count proven. The mother has not made out a reasonable excuse.

Count 7

80. The father relies upon paragraphs 39 to 45 of his affidavit. Following ongoing dispute and conflict between the parties, the father acknowledges that he sent a message to the mother telling her he would need a break from the arrangements and that he would next have the child on 22 October 2015 notwithstanding that the orders provided for the child to spend 10 days with the father over the school holidays.
81. The father reconsidered his position and on 18 September 2015 sent a message to the mother advising her that “I will be having [the child] as per our usual school holiday and court ordered times”.
82. The mother responded that she had arranged for the child to go elsewhere during the holidays but provided no detail. The mother was intending to holiday in Country CC for the entire period of the school holidays. She had arranged for the child to stay with the maternal grandmother in Town V. That arrangement came about only because of the father’s initial advice. There was nothing of significance in the arrangements for the child to spend time with his grandmother and there was no evidence that she had gone to any expense or had made plans that could not now be altered.
83. The mother had no reason to not comply with the orders once the father had given her sufficient notice of his changed position.
84. The mother has not made out a reasonable excuse and I find the count proven.
85. Accordingly, I find count 7 of the first application proven and counts 4 and 7 of the second application proven. The proceedings will be further listed on 4 February 2016 at 10am for sentencing submissions.