Children – Relationship between family violence order and parenting order– Family Court of WA determines whether text messages sent by father to mother contravened violence restraining order or were sent in “an emergency” pursuant to its contact order.

 

In Monaco & Daniels [2016] FCWA 35 (27 May 2016) Walters J considered whether the father Mr Monaco had contravened a violence restraining order (“VRO”) by sending text messages to the mother Ms Daniels. Family violence orders are generally made under a prescribed law of a state or territory to protect a person or persons from family violence. When parenting orders are drafted, the court is made aware of any family violence orders, parenting orders can be made taking those into account, for example by having handovers in a public place.

Background

Ms Daniels and Mr Monaco began a relationship in 2003, and married the following year. They were the parents of Child A born in 2006. They finally separated in April 2011. Their relationship was described by the court as “volatile”. In November 2011, a VRO was made in a Magistrates Court, pursuant to the provisions of the Restraining Orders Act 1997 (WA). The “person protected” was Ms Daniels, and the “person bound by this order” was Mr Monaco. The VRO did not permit any contact between the parties “save and except” as provided for in a parenting order. The parenting order, made in 2013, stipulated that that the parties would “only communicate with each other in relation to issues concerning [Child A’s] welfare by writing either in a communication book to be provided by [Ms Daniels] or by email and, in the event of an emergency, by SMS text message”.

The Communications between the Parties

On the morning of 18 May 2013, Mr Monaco alleged that he was at the police station at 9.45 am where the handover was due to occur at 10am. He received a call from the mother’s phone at 10.23am. He did not answer it but listened to the message left by child A asking what time they were meant to arrive.

In reply, the father sent the following SMS: “10am!!” He received a second call which he let ring through to his voicemail. The message was from Child A saying that she was on her way. Shortly thereafter, the mother sent an SMS: “do not text me …”

The father left the station and sent a further SMS: “You will need to drop her to me at Woolworths …” The mother responded: “No – I don’t feel safe doing that”.

The mother texted the father at 10.51am saying: “Child A is waiting”. The father replied: “Where??” and received a text from the mother saying they were at the police station. Ms Daniels argued that these messages breached the VRO whilst it was Mr Monaco’s contention that the messages were sent in an emergency, permissible under the parenting orders.

Family Violence Orders and Family Law Orders

Although the VRO prohibited Mr Monaco from communicating or attempting to communicate “by whatever means” with Ms Daniels, it had been made subject to the parenting orders.

In those circumstances, His Honour felt there should not have been any inconsistencies in the duties/obligations between the two documents. And although section 68P(2)(a) of the the Family Law Act 1975 (Cth)(“the Act”), required that inconsistency between these orders be specified,

His Honour felt that in this case, it was not strictly necessary as these obligations had been set out in the VRO. Correspondingly, explanations are set out in sections 68P(2)(b) and (c) did not apply. And pursuant to section 68P(4) any failure to abide by the VRO did not invalidate the parenting orders. Additionally, section 68Q(1) of the Act provided for the invalidity of the VRO insofar as it was inconsistent with the parenting orders.

Definition of “Emergency”

The Court then considered whether Mr Monaco’s text messages fell into the category of an emergency as allowed for by the family orders.

Walters J examined three dictionary definitions of the word. In the Macquarie Dictionary “emergency” means “an unforeseen occurrence; a sudden and urgent occasion for action”. The Oxford English Dictionary defines it as “the arising, sudden or unexpected occurrence (of a state of things, an event, etc.) a juncture that arises or ‘turns up’, esp a state of things unexpectedly arising, and urgently demanding immediate action”. The Merriam-Webster Dictionary also defines it as requiring “immediate action”.

The Alleged Breaches

In Walter J’s opinion, under the circumstances, Mr Monaco’s first text message “10am!!” was authorised by the parenting orders as it was sent in a context that could be described as “a state of things unexpectedly arising and urgently demanding immediate action”. Walter J found that Ms Daniels had evidently been running late for the handover, which was to be the first overnight visit since the orders. She had not advised him she was delayed, and Mr Monaco was understandably anxious.

He received a call from her phone, which he did not answer, but upon listening to the message, found that Child A had called to clarify the handover time. It was at that point that he sent the first message.

Walters J accepted that Mr Monaco had not intended to communicate directly with Ms Daniels, although he would have been aware that his message would have been passed on to her. In fact the intended recipient had been Child A. His Honour did not place any weight on the two exclamation marks, noting that “they indicate no more than a degree of frustration on Mr Monaco’s part”.

The second message, however, His Honour conceded could not be described as having been sent in an emergency, but was on the part of the father an attempt to alter arrangements, and was directed at Ms Daniels, and not Child A. His Honour was equally not convinced that the third text message “Where??” could be described “as having been sent in the event of or as a result of an emergency.”

His Honour determined that the alleged breach of the VRO resulted from these three short SMS messages, of which two were “innocuous”. He concluded that:

“with the exception of Mr Monaco’s text message commencing “You will need to drop her …”, the communications between Mr Monaco and Ms Daniels on the morning of 18 May 2013 were authorised, justified or excused by the provisions of para 9 of the parenting orders.

His Honour concluded that, on the morning in question, the communications between the parties “were authorised, justified or excused” by provisions in the parenting orders. “The first text occurred as a result of or in the event of an emergency, and the third text message was sent after Ms Daniels had effectively given permission to Mr Monaco to contact her on her mobile phone on that occasion.”