APPLICANT FILES A CONTRAVENTION ORDER AGAINST HER GRANDMOTHER FOR FAILURE TO COMPLY WITH FAMILY THERAPY ORDER
Murgia & Padovan [2019] FCCA 2090 (21 May 2019)
This is a Contravention Application where the applicants contend that the maternal grandmother of child X contravened with the court order when the latter failed to submit to the applicants a list of therapists for the child.
Facts:
The proceedings are between Ms Murgia, the biological mother of the child whose interests are the subject of the proceedings, X, who has recently turned 16. The Respondent to the Application is Ms Padovan, who is the child’s maternal grandmother and the person with whom X lives.
X has lived, for a further period of her life, a fairly substantial period it would seem, commencing early in her life, with Ms Murgia and her partner, Mr Murgia. Mr Murgia is not the child’s biological father. He was, as might be described in somewhat antiquated terminology, the child’s stepfather.
X became aware that Mr Murgia was not her biological father.
That would appear to be a matter upon which young X placed significant weight. The revelation of that knowledge to X has led to a dramatic ruction in her relationships, not only with Mr Murgia, but with her mother.
Controversy first arose between the then parties, Ms Padovan and Mr and Ms Murgia, with the filing of an Application Initiating Proceedings by Ms Padovan.
Court ordered that X attend Family Therapy. Order 9 provides that the list, once prepared and presented to Ms Padovan, was to then be the subject of an election, as it were, with Ms Padovan to select one of the two therapists and to advise Mr and Ms Murgia of that election so that the therapeutic process might commence with a more clearly established goal of “reestablishing the relationship between the child and Mr and Ms Murgia”. Order 9 further provides that within four days of notifying of the election of a therapist that all parties would do what was necessary to engage the therapist, ensure the child’s attendance with the therapist and to thereafter comply with all directions and recommendations made by the therapist.
That election was not advised by Ms Padovan to Mr and Ms Murgia, whether directly or through her retained legal representatives. Thus, Mr and Ms Murgia were unaware that the election had been made.
The therapy proceeded absent Mr and Ms Murgia and without their knowledge that the process, intended to be purposive of a therapeutic outcome, had commenced. The therapeutic process terminated relatively quickly. Upon the engagement of the therapist, a Mr A, the child was extremely resistant to therapy and refused to participate or attend further appointments. Thus, the therapeutic process was discontinued and concluded.
It is submitted on behalf of the Respondent that the contraventions arose as a consequence of some miscommunication within the legal practice of Ms Padovan or between the legal practice and Ms Padovan.
As is submitted by the Applicant’s counsel, the obligations created by the orders are personal rather than requiring any intervention, particularly as regards to the family therapy orders, by legal practitioners.
Issue: Did the Respondent contravene with the Court Order?
Analysis:
Those orders provide an opportunity, perhaps the only opportunity before this child’s adult years, to seek to address and re-establish the relationship between X and her mother and father.
Notification to Mr and Ms Murgia was important. It triggered their ability to comply with order 9, that is for they to also be involved in the therapy and to do what was necessary so that it might be so. Secondly, and more importantly, the failure to advise the nomination to Mr and Ms Murgia and for the therapy to proceed, without Mr and Ms Murgia’s involvement, undermined and rendered impossible the attainment of the stated therapeutic goal.
The predominant concern is that the therapy has proceeded without the knowledge or engagement of Mr and Ms Murgia, thus denying them any opportunity to engage, denying the child any opportunity of achieving the purpose of the therapy and, thus, rendering the child’s engagement with that process, it could not be described therapeutic in those circumstances, as potentially or, at least, verging upon abusive.
Conclusion: The Respondent contravened with the Court Order.
