Baiden and Hall and Anor
[2015] FCCA 3250
•18 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BAIDEN & HALL & ANOR | [2015] FCCA 3250 |
| Catchwords: FAMILY LAW – Contravention Application – difficult issues of logistics between parties – allegations of sexual abuse against the Father unproven – significant care of young child by maternal Grandmother – Grandmother’s overt hostility towards Father which borders on contemptuous – joinder of necessary party (the Grandmother) – risk of further litigation of all parties including the Grandmother do not act responsibly towards the child and each other – formal warning to Grandmother. |
| Legislation: Family Law Act 1975 (Cth), ss.70NAE(1) & (5), 70NAF Federal Circuit Court Rules 2001 (Cth), r.11.01 |
| Childers v Leslie (2009) 217 FLR 124; (2009) 39 Fam LR 379 In the Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113 In the Marriage of Gaunt (1978) FLC 90-468 Hunter & Morrison (contravention) (2014) FamCA 198 Tindall & Saldo [2015] FamCAFC 1 |
| Applicant: | MR BAIDEN |
| First Respondent: | MS HALL |
| Second Respondent: | MS L HALL |
| File Number: | DUC 296 of 2013 |
| Judgment of: | Judge Neville |
| Hearing date: | 16 July 2015 |
| Date of Last Submission: | 7 August 2015 |
| Delivered at: | Canberra |
| Delivered on: | 18 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Webb |
| Solicitors for the Applicant: | Baldock Stacy & Niven, Orange, NSW |
| Counsel for the First Respondent: | Ms Snelling |
| Solicitors for the First Respondent: | Sheekey Williams, Solicitors, Wagga Wagga |
ORDERS:
THE COURT FINDS THAT:
The Mother’s plea of “admission” of the Contraventions, but “with reasonable excuse”, is not accepted and is rejected by the Court.
THE COURT ORDERS THAT:
The maternal Grandmother, MS L HALL be joined as the Second Respondent in these proceedings.
The Applicant Father MR BAIDEN (born (omitted) 1981) (“the Father”) be compensated for time not spent with the child X (born (omitted) 2012) (“the child”), as a result of the Contraventions, and the Father’s time with the child shall be as follows:
(a)Time between the Father and child is to occur at the contact centre for the first month of contact, and is to commence at the earliest possible time, for the maximum block of time permitted by the contact centre every weekend, on a day to be determined by the contact centre. For clarity, that is, the first four consecutive weekends of contact.
(b)After the first month of contact has been completed, the Consent Orders made by Judge Harman on 4 September 2014 are to resume (in particular, Order 4A, until the child commences school and thereafter Order 4B);
(c)The Consent Orders made by Judge Harman on 4 September 2014 are to be varied to accommodate the make-up time between the child and Father as follows:
(i)The make-up time between the Father and child is to be no less than one (1) extra weekend per month for the next 12 months. For clarity, that is, the Father’s time with the child is to be for three (3) out of every four (4) weekends per month.
(d)From 18 December 2016 thereafter, the Orders of 4 September 2014 are to resume in their totality.
The Mother, MS HALL (born (omitted) 1992) (“the Mother”) is to undertake counselling and is to provide evidence to the Court of having completed a parenting course for separated parents within six (6) months from the date of these Orders.
The Mother is required to ensure that the maternal Grandmother ceases her denigration of the Father.
Both parents are restrained from saying unkind or unpleasant things about the other parent to the children, in their presence, or allowing any other person, in particular the maternal Grandmother, to do so.
The Respondent Mother must enter into a bond of no more than 18 months in length, the terms of which are to be prepared by Counsel for the Father, and provided to Counsel for the Mother within 21 days from the date of these Orders.
The Bond must be in relation to the Consent Orders made by Judge Harman on 4 September 2014, and any additional Orders contained herein which operate in conjunction with the Orders of 4 September 2014.
The Bond must be filed with the Court after execution by no later than close of business on 29 January 2016.
The Respondent Mother pay the Father’s costs either as agreed or taxed.
Pursuant to s.62B of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
Pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
THE COURT NOTES THAT:
A.The Mother and the Maternal Grandmother are put on notice of the risk of severe sanction, which could include a more severe bond, plus adverse costs Orders and even a possible change in residence of the child, if any further breaches of the existing Orders occur.
IT IS NOTED that publication of this judgment under the pseudonym Baiden & Hall & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
DUC 296 of 2013
| MR BAIDEN |
Applicant
And
| MS HALL |
First Respondent
| MS L HALL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 4th September 2014, orders were made by consent in relation to parenting arrangements concerning the only child of the relationship, X, who was born (omitted) 2012. Those orders were made in the Parramatta Registry of this Court.
On 16th December 2014, the Father filed a contravention application in which he alleged that, without reasonable excuse, the Mother refused to allow him to spend time with X on two occasions (15th and 29th November 2014) in accordance with Order 4A(a) of the Orders of September 2014.
On 10th April 2015, orders were made in this Registry which provided for the Father immediately to commence supervised time at the (omitted) Children's Contact Centre.
An Amended Contravention Application was filed on 3rd July 2015 in which the contravention allegations were expanded to include (a) further breaches on 13th and 27th December 2014, and 9th and 23rd January and 6th and 20th February 2015), and (b) a breach (and ongoing breaches) on 16th and 17th April of the Orders made on 10th April 2015 for supervised time.
The contraventions were all admitted by the Mother but with the defence of reasonable excuse.[1]
[1] See Transcript (16th July 2015) p.8. Hereafter, all references will be simply “T” following by the relevant page number.
The Mother’s excuse was that she had stopped making X available to spend time with the Father due to concern over the child’s behaviour after she returned from spending time with the Father. Indeed, based on this behaviour and more particularly because of disclosures by the child, it was contended by the Mother that there was evidence that the Father had sexually abused X.
Some other factual matters are relevant to the contravention application.
After the Father filed the original contravention application on 16th December 2014, on 7th January 2015 the Mother reported the alleged sexual abuse of X to the police. There are file notes which have subsequently been produced by the Mother’s solicitors to confirm the accuracy of the Mother’s contention about making such report.
The Mother also made a complaint to the Joint Investigation Response Team (JIRT) on 9th January 2015. She also contended that she actually contacted the JIRT team in November 2014, but that the file was lost and therefore not actioned until January 2015.
Of some significance, which I will come back to, is that the Grandmother took X to be interviewed by the JIRT experts on 23rd January 2015. After going to the toilet with the Grandmother, unprompted, X said, “My dad touched my bottom.” The Grandmother denied that she had talked to X while in the toilet.
On 3rd March 2015, JIRT informed the Respondent Mother that X was deemed not to be at risk in any relevant respect while in the Father’s care. Orders were made on 10th April 2015 which state that once the Mother and child have commenced counselling at JIRT, supervised time between the Father and child was to recommence.
In May 2015, X was interviewed by a sexual assault counsellor, Ms H. During the course of that interview, again with her Grandmother being present, X again made disclosures during this session regarding her Father.
One preliminary matter needs to be addressed. There is no dispute that because of the Mother’s work commitments in Western Australia, the child is cared for, to a very significant degree, by the maternal Grandmother. During the contravention hearing, the Grandmother also gave evidence which, because of its significance (and orders that arise out of it) both for the contravention and longer term, in my view, it is apposite indeed important that she be made a party to the proceeding pursuant to Rule 11.01 of this Court’s Rules.
The Evidence
The matter was listed and proceeded to a half day hearing on 16th July where the parties, and the maternal Grandmother, gave evidence.
Subject to some preliminary observations, the evidence of the parties (and others) was as follows.
I should say at the outset that I consider the parties themselves to be capable and well-intentioned in their parenting aspirations and decisions, without of course suggesting that they are perfect. I found the parties to be straight-forward, honest people. To some extent, they are both victims of difficult circumstances, primarily geographical, but other things too.
For example, there are significant logistical issues because the Father lives in (omitted) while the Mother (the child’s primary carer under the 2014 final orders) lives in (omitted). The distance between those two centres is approximately 210 kilometres, a drive of some 2½ hours. That said, because “time” is currently ordered to be at a contact centre in (omitted), the actual travel time from the Father’s parent’s residence (where he currently resides) is four hours one way.
In addition to these matters of geography and practicality, the Mother has further logistical issues because her employment in Western Australia takes her way from her daughter for significant and regular stretches of time (up to two weeks, noted further below). This then leads to X being in the very regular and on-going care of her Grandmother.
The real sticking point in relation to both the Contravention Application and the operation of the parenting orders generally, which the oral evidence made very plain, is the singularly unhelpful, indeed openly hostile, influence of the maternal Grandmother on the child’s relationship with the Father. If the actions of the Grandmother were to continue along the lines of what was disclosed in the material produced under subpoena, and her attitude painfully on display in the witness box, she could be the subject of very significant adverse orders in certain circumstances, and even more so, so could the Mother if she does not take immediate remedial steps to protect the child from the malign influence of the Grandmother. From the Mother’s perspective, in the light of the Grandmother’s evidence, she is facing a worst case scenario of the child going to live with the Father and spending time with the Mother, and a formal exclusion of the Grandmother from the child’s life. The Mother may ultimately have to choose between her fly-in–fly-out employment, on the one hand, or the child residing with her, on the other; otherwise there is a real risk of the child going to live with her Father, primarily so as to protect the child from the overtly hostile negative attitude of the Grandmother towards the Father.
Finally, I should note that both parties provided “clear” drug tests, which became Exhibit B.
The Father’s Evidence
It is sufficient for current purposes to note that much of the Father’s affidavit material outlined the delays – some unavoidable – in the matter being listed. Those delays, in part, arose out of the matter being case managed out of, initially, the Parramatta Registry, then at various times, out of the Albury Registry, then in the Wagga Wagga list out of Canberra.
The same material also outlined the constant attempts of the Father to arrange supervised time for him to spend with his daughter, and the significantly lengthy period when those attempts, while not deliberately thwarted in every respect, did not result in him being able to do so, and all this over a period generally from April until June 2015.
At some length, in his affidavit (filed 12th May 2015) the Father outlined his time with his daughter since the consent orders were made on 4th September 2014, and included a significant number of text (SMS) messages with the Mother, as well as various photographs showing a content and otherwise happy child with her Father. He maintained that he only sought to build a relationship with his young daughter.
In relation to the allegations of sexual assault (see pars.17 and following of the affidavit of 12th May 2015), the Father vehemently denies all of the allegations by the Mother.
Similarly, the Father denied having any issues or problems in relation to either parenting X generally or specifically dealing with the child’s medication – such as in relation to hay fever.[2]
[2] See pars.20 – 24 (and associated annexures) of the Father’s affidavit, filed 12th May 2014.
The Father’s oral evidence, brief as it was, was as follows.
First, he confirmed that there had been apprehended violence proceedings between he and the Mother in 2013, but which were, in his words, “thrown out.”[3]
[3] T 13. See also T 27 where there was reference to a letter from the Cootamundra Local Court, dated 22nd November 2013, which confirmed that the matters before that Court were dismissed.
Secondly, he confirmed that he worked in the (omitted) industry as a (occupation omitted). The Father has an older child (six year old A) from a different relationship. That child, who lives in Perth, pursuant to informal arrangements, spends time with his Father “at least twice per year” as arranged with that child’s Mother, which he says happens without difficulty.
Thirdly, in response to the sexual abuse and other allegations against him, the Father confirmed that (a) on one occasion, he had bought some bubble-blow for his daughter to use, and (b) he and his family smoke, which his daughter obviously saw. He also agreed that the Mother would rightly be “mortified” about the disclosures made by the child, just as he was.[4]
[4] T 17.
He also expressed concern at the child being taken to counselling. He said that while he did not suggest that the Mother was coaching the child, nonetheless, “there is some form of coaching going on with my daughter.” Indeed, he agreed with the proposition that someone on the Mother’s side “was out to get him.”[5]
[5] T 18.
The Father said that after separation from the Mother, his relationship with her and equally so with the maternal Grandmother, was initially very good. It started to go awry, he said, when there was a contest over the child’s asthma medication.
The Mother’s Evidence
Here I will confine matters to the Mother’s oral evidence which, of course, relates to her affidavit evidence in any event.
First, in relation to compliance with the Court’s April orders regarding counselling to be undertaken. The Mother confirmed that she had sought to arrange this, but was still on a waiting list. The counselling was being arranged through the (omitted) Medical Centre.[6]
[6] T 28 – 29.
The Mother confirmed that she works in (omitted) WA, on a (employer omitted) on a roster of two weeks work there and one week at home. To state the obvious: the travel (fatigue) and time commitments associated with her work are significant. Her work commitments were still subject to demand and the availability of work.[7]
[7] See T 30.
In answer to questions regarding the efforts by the Mother to engage counselling for the child in the light of the allegations, the following exchange took place:[8]
[8] T 32.
MS WEBB: And you consider that the allegations that you’ve made against Mr Baiden are serious enough to suspend X’s time with her father?---That they are serious?
Do you consider them serious enough that you should - - -?---Yes.
But not serious enough to stay at home with X to address her counselling needs?---I need to be there. I know that a hundred per cent, but the only reason why I’m away working is because I’m not getting any child maintenance or anything like that either, and this is the only proper job that I’ve been able to get that’s being paid good to support my daughter.
Then there was the following exchange with the Bench regarding the child’s time with the Father in the light of the allegations and the lack of evidence to support them (emphasis added):[9]
[9] T 32 – 33.
HIS HONOUR: But would you accept, if we can just for the moment quarantine and put to one side what I will describe as the disclosure by X, just put that to one side for the moment. Would you accept that it’s important for X to know and to spend time with her dad?---I do accept that.
And do you also accept that if, for example, critical agencies such as JIRT, and you understand what that - - -?---Yes.
- - - that refers to. If they say that they can’t find any evidence that would support the allegations that X raises, what is going to “satisfy” you that Mr Baiden has done nothing untoward to X in that he would always seek to act protectively towards her? What’s going to satisfy you that X is safe in her dad’s care?---I don’t feel like that she is safe right now, but, yes, supervised contacts visits would be what I would like.
Right. But just say for the purposes of this discussion, say - and, again, all this is assuming that, as I understand it, that the documents that Ms Webb is going to tender from the JIRT team say that they can’t find anything that would support any allegation against Mr Baiden, is there any objection on your part to at least beginning supervised time?---Yes. I would consider supervised time.
And then assume that goes well for some period of time, and with whatever assistance that both of you may need, and subject to other reporting and whatever else, that we could try and normalise the parenting relationship between X and her dad. Is that your hope or goal at any stage?---Yes. It is.
So that both of you can live without the drama, like, free of the drama as far as possible?---Yes.
That’s your goal ultimately?---Yes. It is, but I just - yes. That’s the way everything was supposed to be going anyway from the start.
So would you accept, once we all see these documents, would you accept that if these documents say that there’s no evidence established against Mr Baiden, that supervised time could begin?---Yes. It could, but I - I know that, like, all this evidence stuff, I understand all that too, but, you know, I - I believe what my daughter has said. Of course you would, being your own child.
…
We’re not trying to make this difficult, or any more difficult than it is. I understand it’s very difficult for you, but it’s also very difficult for Mr Baiden because both of you want the best for X; do you accept that?---I do.
And whatever has happened between you and Mr Baiden in the past, however difficult and strained the relationship became and whatever incidents did or didn’t happen, do you accept Mr Baiden only wants the best for X just as you do?---Yes. I do.
I mean, he might go about it differently, but difference is not opposition; it’s just different?---Yes. I do.
The Mother confirmed that she was notified by JIRT on 24th March 2015 that there was no evidence to support the allegations of abuse against the Father and that the child was assessed to be not at risk.[10]
[10] T 38 & 39.
The Mother also confirmed that her solicitor had indicated to her that the records from the contact centre show the time spent between the child and her Father was going well, that they were happy, and that there was nothing negative in those records. Indeed, everything from the contact centre records was positive about the child’s time with her Father.[11]
[11] T 39 & 40.
The Mother confirmed that it was the maternal Grandmother who took the child to the doctor following the disclosure(s). This was because the Mother was so shocked and alarmed by the disclosure and was not sure how to address them. The Mother raise the issue with the Father very briefly.
The Mother also accepted the possibility that the allegation against the Father might have been due to some incident that involved the child’s young cousins who play somewhat roughly with her whilst at the Father’s residence.[12]
[12] T 41.
The Mother also agreed that in relation to a number of specific events, such as medical and other appointments with the child, due to her work commitments on the other side of the country, it has been her Mother who has taken X to them.[13]
[13] T 42.
In relation to entering the consent orders in September 2014, there was the following exchange with the Father’s Counsel:[14]
These are the consent orders that you entered into knowing all the circumstances that you’ve – you’ve decided to raise again, allegations of Mr Baiden being violent, not suitable person to be with a child, yet in September, you have consented – in fact, approached Mr Baiden and then consented to enter into orders in relation to X, isn’t that correct?‑‑‑Yes.
And then within one and a half months of those orders coming into play, you have again ceased all contact between X and her father on the basis of something a three year old child has said when all other indicators are that Mr Baiden has a positive relationship with his child, isn’t that correct?‑‑‑Yes. But when your daughter or your own kids says something like that, who are you going to believe?
[14] T 43.
It might reasonably be said that the Mother acted protectively towards the child initially when she first learnt of the disclosures. However, upon confirmation from JIRT that the disclosures were not substantiated, the continued non-compliance with even the supervised contact orders suggests if not indicates that the Mother does not appreciate – or sufficiently so – the importance of the child’s relationship with her Father.
The Maternal Grandmother’s Evidence
As with the Mother, I will confine the consideration as noted here to the Grandmother’s oral evidence.
The Grandmother confirmed that she was the “care-giver” for X. She also confirmed, but seemed somewhat surprised by the fact, that following the consent orders in September 2014 X spent time with her Father on only three occasions before that time was suspended.[15]
[15] T 46.
She confirmed that there were “lots of times” that “we” had tried to bathe the child and that X was oppositional and unhappy about it.[16] By this I took the Grandmother to be justifying the continuing opposition to the child spending time with the Father.
[16] T 47.
Then followed a series of questions based on comments contained in documents produced under subpoena, such as from Relationships Australia. The following exchange with the Grandmother is one of a number of, in my view, important pieces of evidence (emphasis added):[17]
[17] T 48.
Now, we have subpoenaed certain documents from Relationships Australia which do indicate that you were predominantly the one in attendance at that time, Ms Hall, so I will take you to some of the information that’s contained in those documents. Now, right from the commencement of X spending time with her father, albeit in a supervised capacity, you indicated to – that you had concerns that X – about X spending time with her father, didn’t you?‑‑‑Yes.
In fact, the first appointment for X to spend time with her father was cancelled because of your concerns, wasn’t it?‑‑‑Possibly.
HIS HONOUR: Sorry, Ms Webb, can I ask what does this go to?
MS WEBB: Well, there was a few comments that I believe, your Honour, will lead up to the allegations being made. Firstly, there’s comments made in the documents that the grandmother was hyper anxious and negative about the times, but there was a certain – I will just put this to you, your Honour, and then I will tender the documents into evidence for your Honour to see. But on 4 May 2014 it’s fair to say that you were feeling quite frustrated about the continuing contact time, wasn’t it?‑‑‑I was, yes.
In fact, what you said to one of the workers was – you accused them of being – “you’re on his side” and she answered, “We’re on no one’s side. We can’t be. We’re here for the child.” To which you responded, “We have dirt on him.” Is that correct?‑‑‑I’m not sure whether I said that. I’m not sure.
It’s clearly in these notes, “We have dirt on him. You’re all strangers.” And that’s – and then they said, “We’re paid – but we’re paid to do that.” And you said, “She doesn’t have a relationship with him,” to which the response was, “This is a chance for him to build one with him.” And then you responded, “As far as we’re concerned, there shouldn’t be one. She shouldn’t be forced.” Is that what you said?‑‑‑It could have been what I said.
HIS HONOUR: Do you still hold that view?‑‑‑I didn’t. I got over it. X got better as the time went on when she was seeing her father.
Next, there was the following further important exchange (emphasis added):[18]
[18] T 49.
do you accept that under the Family Law Act, amongst other things, but particularly that, that the terms of parenting orders generally – these are not parenting proceedings specifically – but the Act says that in making parenting orders the court has to have regard to the benefit of the child having a meaningful relationship with both of the child’s parents?‑‑‑Yes, I understand that.
No, no, but do you accept it? You might understand it, but do you accept it?‑‑‑Yes, I do accept it.
You seem a little reluctant?‑‑‑Well, we just know things. I’m just going on what Ms Hall has said about him in the past and I’m ‑ ‑ ‑
But you understand, though, don’t you, that whatever has happened between your daughter and Mr Baiden should stay between them. It should not – these are my words and they’re used advisedly – should not be used to infect X’s relationship with either of her parents. She needs them both whatever other people may or may not think about X’s parents?‑‑‑Yes.
I detect a certain reluctance still?‑‑‑I just don’t like seeing X, you know, hurt, so to speak, upset. It took her a long time to ‑ ‑ ‑
I’m sure no one does?‑‑‑No. It took a long time for her to adapt to her father. Then it got better and I was happy with that. And then we were giving him additional night, a Friday night as well as the Saturday night, to help both of them bond together. We thought it would be better because it was just too rushed having just the Saturday and Saturday night and then Sunday. So we did that out of the goodness of our heart. We thought it was a good idea, because that wasn’t the order.
You’re almost making it sound as if that, you know – out of the benevolence and good grace that you deigned to give this time to the father?‑‑‑Yes. Well, I was accepting what was going on. So – and we were all happy at that time.
And do you – the documents are going to be tendered very shortly, but assume for the purposes of this discussion that the documents from JIRT – you know what JIRT is?‑‑‑Mm.
Do not establish anything untoward directed to Mr Baiden?‑‑‑I understand that.
You understand it, but my question is do you accept it, though?‑‑‑I do accept it, but I don’t accept the fact that X lives with us, her mum’s away working, and she discloses these things all the time and I would think after eight months or so she would have forgotten, but she doesn’t. So I’m all for X. I don’t care about Mr Baiden and Ms Hall or their relationship and how that is at the moment, but I do care about this little girl. And three year olds can’t make up that stuff. How on earth can they make up that stuff? She was actually two and a half or so when it first happened, and it was just out of the blue. She just blurted this out after all her stuff ‑ ‑ ‑
Finally, the Grandmother was asked two other, brief questions as follows:[19]
MS WEBB: No. I only have two more questions, your Honour, and then I will tender these documents. So on 4 May when you made that statement, “We have dirt on him,” what were you referring to? This was four months before the consent orders and six months before the allegations raised by X. What were you referring to, “We have dirt on him”?‑‑‑I was referring to his ice addiction.
Thank you. Now, one more question, your Honour. On 2 May 2014 there was a phone call to confirm the supervised visit for the weekend and it’s in the notes there that you said that “Ms Hall returns to court the following day and does not want STP” – being spend time with parent – “to see the child X until she is older.” That was apparently what you advised the centre. Can you recall saying that?‑‑‑No, I can’t.
[19] T 50.
For the purposes of the Application before the Court it is sufficient, in large measure, to repeat what was said at the outset of these reasons.
First, I accept that all parties love the child and wish only the very best for her.
Secondly, there is no doubt that the maternal Grandmother loves and cares for X very much, and also that she plays a very significant role in her life, essentially as a primary care-giver when her Mother is away working in Western Australia, and sometimes when she is back home.
Thirdly, it is clear that the Grandmother has very significant misgivings about the Father, and even more so about X spending time, and developing a relationship, with him. Her influence on or over X is obviously significant; it is also obviously rather significant over her daughter as well who was, not surprisingly, heavily dependent on her Mother for assistance and support generally.
Fourthly, the Grandmother’s hostility towards the Father was patent. It bodes not just ill generally but especially in terms of the prospect of the Father having a meaningful relationship with his daughter now and in the future. If the Grandmother’s ill will towards the Father is not seriously curbed and curbed immediately, the consequences could be severe for all on the Mother’s side of the ledger, not to mention the potentially adverse effects on the child – whose best interests must remain paramount.
Before moving to consider the submissions, I should record that the notes from “contact centre” in (omitted) became Exhibit C, and records from JIRT became Exhibit D.
I should also record the following in relation to the report from Ms H, a child and adolescent sexual assault counsellor: (a) it is undated but has a hand-written date (semble) 29th March 2012 which purports to be the date on which an order of this Court was made (albeit in its earlier guise as the Federal Magistrates Court); (b) in fact, there is no order of this Court for such a report as alleged by Ms H, (c) the date of the so-called “request”, said to be from this Court and dated 29th March 2012, clearly pre-dates the 2014 consent orders, and the contravention application, and (d) within the body of the report, it records that the appointment was made by the Grandmother, who attended the first visit on 11th May 2015, and the second visit, this time with both maternal Grandparents, on 14th May 2015.
It is important to emphasise the following from the evidence: (a) the Mother confirmed that the child’s time with the Father had gone well previously (which also seemed to be acknowledged by the Grandmother in relation to the initial visits between Father and daughter), and (b) the Mother conceded – tepid though it was – that the matters disclosed by X could have resulted from action by her boisterous and rough-playing young cousins while in the Father’s care. In my view, these matters are significant.
The Applicant’s Submissions
Very summarily stated, the Father’s submissions were as follows.
In her affidavit evidence, sworn 7th April 2015 (pars 40-46), the Respondent Mother inferred that she unwillingly or reluctantly entered into the original Consent Orders, dated 4th September 2014. However, it was contended that the Applicant’s evidence shows that it was the Respondent who initiated the discussions to enter into the agreement regarding orders concerning X. As well, it was noted that, in any event, at the time the consent orders were made, both parties were legally represented.
The Applicant Father relied upon comments by Austin J in Saldo & Tindall (2012) FamCA 194 at [88], where his Honour said:[20]
The pivotal issue is not the reasonableness of the Mother’s fears for the safety of herself and the child. Rather, it is whether the Mother had reasonable grounds to believe that it was necessary for her to contravene Court orders to preserve the health or safety of herself or the child. There is a material and important difference between those two concepts.
[20] I should note at this relatively early stage that no one seemed to have checked references; as it happens, the decision of his Honour was overturned on appeal: Tindall & Saldo [2015] FamCAFC 1. This decision of the Full Court of the Family Court was delivered on 9th January 2015.
Earlier at [47], the Court noted:
Irrespective of the genuineness of the Mother’s belief about the necessity for her disobedience of the Court orders, elemental to her establishment of reasonable excuse was proof that her belief was based on reasonable grounds. That element imports an objective standard which overlays the subjectivity of the Mother’s belief.
After outlining the general chronology of events relevant to the matter, it was contended that the Applicant’s evidence, detailed in affidavits sworn on 6th June and 1st December 2014, and again on 12th May 2015, together with his oral evidence, disclosed a series of attempts by the Father to establish and maintain a relationship with his daughter. However, it was submitted that each time the Applicant successfully negotiated an agreement with the Respondent Mother that allows him to spend time with X, that agreement has been thwarted by unsubstantiated and unfounded allegations made by the Respondent that the Father has engaged in conduct that necessitates the cessation of X spending time with her Father.
The most recent allegations, it was said, that had been offered by the Mother as a defence to the contravention of the orders involve an allegation that the Father has either behaved in a sexually inappropriate manner, or that he has sexually assaulted X. It is alleged that a disclosure was made by X to the maternal Grandmother a few days after the last occasion when the child spent time with her Father on 1st and 2nd November 2014, when X was just over two and a half years old.
The allegations are vehemently denied by the Father. Indeed, text (SMS) messages from the Mother that are attached to the Applicant’s affidavit (filed 16th December 2014), relate to not making X available to spend time with the Father. In none of them is there any reference to any alleged disclosures by X. Further, the Applicant noted that, in documents received from the Respondent’s solicitors, there is a file note dated 3rd November 2014 to the effect that the Respondent Mother contacted her solicitor indicating her wish to change the consent orders because the child was not coping under the “time with” orders, as opposed to any other issue of concern.
Again, in those notes there is no reference to any sexually inappropriate behaviour by the Applicant. The Applicant further notes that the Respondent did not take X to a medical practitioner after the alleged disclosure was made. Rather, she confirmed that the maternal Grandmother took X to this medical appointment. Further, the maternal Grandmother alone took the child to the appointment with Ms H, despite the serious nature of the alleged disclosures made by X.
The Father contended that the presentation of X to Ms H was not designed to facilitate the child’s relationship with her Father, but rather to bolster the false allegations made by the Respondent and the maternal Grandmother. It was said that the report of Ms H should be given little weight, if any.
It was submitted by the Applicant that the Mother’s lack of involvement in the care of X in relation to the alleged disclosures is supportive of the view that the allegations lack veracity. The Father said that subpoenaed documents from Relationships Australia (“RA”) clearly supported the submission that the Respondent and maternal Grandmother do not support X spending time with him. The documents disclosed, it was said, among other things, the initial refusal of the Respondent to engage with RA.
Further, among the subpoenaed records there is a note, dated 2nd May 2014, indicating that the Grandmother told RA that the Respondent would be going back to Court the following day and that she did not want the child to spend time with the Father until she was older.
There is another entry in the same records, dated 4th May 2014, which clearly showed, it was submitted, that the Respondent Mother and/or maternal Grandmother’s intention is to prevent X from spending time with her Father; the maternal Grandmother was noted as saying:
We have dirt on him.
The maternal Grandmother is further recorded in the same documents as accusing RA of being “on his [the Father’s] side”, and also saying that:
She [the child] doesn’t have a relationship with him.
A representative of RA is noted as saying:
This is a chance for her to build one [a relationship] with him.
To this the maternal Grandmother responded (as recorded in the subpoenaed documents):
As far as we are concerned, there shouldn’t be one. She [the child] shouldn’t be forced.
The Father submitted that the documents produced by Relationships Australia give a positive account of the interaction between the Applicant and the child; indeed, there is no evidence that X was distressed with spending time with the Applicant.
Documents produced under subpoena by JIRT indicated that:
X was not assessed as being at risk of harm, and that the JIRT assessment was unable to substantiate sexual harm to X by her Father.
It was noted in the JIRT documents that X did not make any disclosure to investigators. It was, however, noted (in my view, alarmingly):
Concerns were held by investigators due to Ms L Hall offering to investigators to interrogate X in front of investigators, stating that she knew how to ask the right questions and how to get the answers the investigators were looking for.
It was further submitted that the Respondent did not have reasonable grounds for forming the view that contravening the orders was necessary to protect the health or safety of X.
It was said that the evidence and subpoenaed documents supported the contention that the Respondent and the maternal Grandmother were/are behaving in a manner designed to interfere with, and prevent a positive relationship from developing between, X and her Father.
The Applicant submitted that, taken in its entirety, the evidence clearly showed that the Respondent was lacking in bona fides in relation to any agreement made with the Applicant regarding his time with X.
And further, it was said that any of the allegations regarding sexually inappropriate behaviour towards X by the Father was simply not made out and was otherwise unsustainable.
Accordingly, it was submitted that the Court should find that the Mother did not have a reasonable excuse for contravening the orders.
Further, the information set out in the affidavit of Ms J, sworn 2nd July 2015, indicated that the Respondent had also not complied with the orders of the Court, dated 10th April 2015, by not taking all appropriate measures to commence counselling. This aspect, it will be recalled, relates to a separate ground in the amended contravention application filed by the Father.
Despite the requests, as detailed in Ms J’s affidavit, made by the Applicant to spend supervised time with X at the (omitted) Children's Contact Centre, the Respondent has continued to refuse to facilitate the child spending time with her Father.
In sum, the submission was that the Court should find that the Respondent contravened the orders and the amended orders. The Father therefore sought (a) an order compensating the Applicant for time not spent with X as a result of the contraventions, (b) an order that the Respondent enter into a bond, and (c) an order for costs.
The Respondent Mother’s Submissions
It was acknowledged at the outset that the Mother stopped providing the child for time with the Father in November 2014 after becoming concerned about the child’s behaviour and certain words being said to her (or to the Grandmother) by the child. It was the Mother’s evidence that she became concerned about a change in the child’s behaviour, and equally so about reports the child made to her and her Mother, and her Grandmother (Ms L Hall), about incidents occurring when spending time with her Father. As a result of the child’s reports, the Mother suspended time for the child with her Father and sought legal advice as to how to change the current orders.
It was acknowledged in the Mother’s submissions that the child was interviewed by JIRT and that she did not disclose or make any relevant reference to sexual abuse. It was submitted by the Mother that this was due to the child’s young age. The Mother remained concerned that the child had been abused by the Father and remained of the belief that she was placing her child at an unacceptable risk of sexual abuse should she spend time with the Father. In relation to the amended orders, the Mother admitted that she had not obtained counselling for herself.
It was the Mother’s evidence that, due to her work, which is a fly-in, fly-out job in Western Australia, which requires her to live-in for two week periods then fly home, she has been unable to commence counselling sessions.
The Mother’s oral evidence was she had been contacted about counselling being available to her in the week before the hearing of the current Application.
It remained the Mother’s case that when X began to behave in an unusual way, raising her concerns, she took the most appropriate action in suspending X’s time with her Father.
It was submitted that, as it was put to the Mother in cross-examination, she had not contacted any authority about the allegations of sexual abuse prior to the date of the records produced to the Court, being 8th January 2015.
It has already been noted that records have subsequently been produced that confirm the Mother’s account of when she first raised issues with relevant authorities. Indeed, file notes were produced dated 3rd November 2014, 14th November 2014, and 7th January 2015. It was submitted that the Court should accept the notes produced which confirm the Mother’s evidence; namely, that she made a contemporaneous report of the alleged abuse at the time she became aware of it.
Further, it was contended that the disclosure by the child and the subsequent report of Ms H, were/are both sufficient to enable the Court to make a finding that the Mother had reasonable excuse to contravene the orders. The Mother was alarmed and concerned for her daughter’s safety.
The submissions noted that s.70NAE(5)(a) provides that, if the Mother believed “on reasonable grounds” that it was necessary for the health and safety of the child to contravene the orders, she is not guilty of contravening the orders.
Section 70NAE(5)(b) further provided the requirement that the period during which the contravention occurs should not be longer than necessary to protect the health or safety of the child. It was submitted that both of these limbs of s.70NAE were satisfied in the current matter.
It was accepted that the onus of proof rested with the Mother to establish she had a reasonable excuse to contravene the orders, and it was submitted that she had discharged this onus.
The standard of proof was on the balance of probabilities, according to s.70NAF
It was submitted further that this was a case where there clearly are issues for the child in spending time with her Father, and that those issues remain unresolved.
I simply note here that this submission was in circumstances where the JIRT team has confirmed that there is no relevant risk of the child spending time with the Father. I note further that in such circumstances, one ought reasonably look elsewhere for the cause of the child’s behaviour. These are matters to which I return later in these reasons.
In the light of the submissions made and the evidence in support of them it was contended that the appropriate course would be to vary the child’s time with the Father.
It is the Mother’s evidence, it was submitted, that she believes the conduct reported by the child had seriously damaging emotional effects, and that she continues to hold fears for the safety of the child, both physical and emotional. It was submitted that there was a reasonable foundation for the Mother’s concerns given what the child said to her, and what was subsequently reported by Ms H in her report. The Mother believed that, even after orders were made for the child’s time with her Father to occur at the contact centre, the child would still be subjected to a risk of emotional, if not also physical, harm and it was therefore necessary to protect her health and safety by withholding her from the contact centre.
I simply observe here that the level of evidence upon which such a submission regarding the risk to the child spending time with her Father at a professionally run contact centre was made, in my view, did not exist. It is very difficult to see how a child at a contact centre is at risk of the kind set out in the submissions on the evidence before the Court.
The Mother communicated with the Father through the legal representatives that she believed the child required ongoing counselling to deal with her issues. It was submitted that, if the Court finds that the Mother has contravened the orders without reasonable excuse, then it should nonetheless be dealt with as a “stage 2 matter”.
It was submitted further that the remedies available are intended to be remedial (as opposed to punitive) unless it is found that there has been serious disregard of the orders. It was submitted that this was not the case in this matter. Therefore, as submitted, the remedies available are for compensatory time, a post-separation parenting course, and/or for the matter to be adjourned to vary the primary orders. If there was an adjournment, the Court must consider whether or not the primary order was made by consent.
In this case, it was. The parties were represented. In this case, it was respectfully submitted on behalf of the Mother that the speed with which the orders faltered are an indication that they were not appropriate orders for such a young child when made and that they [now] require variation. The Mother relied upon Hunter & Morrison (contravention) (2014) FamCA 198.
Consideration & Disposition
This matter ultimately turns on, among other things, whether the evidence establishes that there was a reasonable excuse by the Mother in not making the child available to spend time with the Father. The detailed judgment of Warnick J (sitting as the Full Court) in Childers v Leslie considers at some length what constitutes a “reasonable excuse” for the purposes of s.70NAE of the Act. It is therefore necessary to consider relevant principle from that judgment.[21] From it I note the following.
[21] Childers v Leslie (2009) 217 FLR 124; (2009) 39 Fam LR 379.
First, s.70NAE(1) relevantly provides as follows:
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 are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
Secondly, s.70NAE(5) provides:
(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if;
a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
In the course of Warnick J’s judgment in Childers v Leslie, his Honour made the following important observations, firstly at [22] – [24]:
[22] As earlier seen, s 70NAE(1) is to the effect that the circumstances described in the following subsections are not the only circumstances in which reasonable excuse may be found. While it is clear that a set of circumstances quite different in character to those set out in any of the subsections could constitute reasonable excuse, a much more difficult question is whether, if the circumstances seem to fit within the character of those set out in a subsection, that subsection describes the limits within which reasonable excuse may be found. For example, could a respondent who genuinely believed that contravention was necessary to protect a child’s health, but who had no reasonable grounds for that belief, nonetheless be found to have had a reasonable excuse for contravention or, might a person who contravened an order to protect a child’s health be found to have had a reasonable excuse for contravention, notwithstanding that the retention was for longer than was necessary to protect the child’s health.
[23] The first example might be addressed by regarding the term “reasonable excuse” in s 70NAE(1) as being an objective test, albeit one that might include “subjective” aspects. Thus, the term “reasonable excuse” in subsection (1) would match the term “on reasonable grounds” in subsection (5). If this approach was taken, the same result would be achieved whether subsection (5) was expressly relied upon or not. While this conclusion does not mean that subsection (5) must be applied whenever it can “fit” the circumstances, it certainly does not support an opposite conclusion.
[24] While subsection (5) describes circumstances in which a reasonable excuse will exist, within its term are qualifications such as “reasonable grounds”, “…necessary to protect the health…” and “…not longer than was necessary”, which if not met will exclude some “excuses”. I incline to the view that where the legislature has specifically installed qualifications on an excuse in a particular set of circumstances, it would not be open to make a finding of excuse where that limit had been exceeded, unless there were some additional circumstances that took the case out of the situation dealt with by the subsection. So, as to the second example given in the preceding paragraph, without such an additional circumstance, it would not be open to find reasonable excuse in respect of a contravention for a period that exceeded that which was necessary to protect a child’s health.
Then at [26], Warnick J said:
… In my view, the correct approach would have been to at least attempt to measure the mother’s excuse against the terms of s 70NAE(5) and to explain why the subsection did not apply, if that was held to be the case….
At [28], his Honour said (emphasis added):
… the learned Magistrate may well have fallen into error by applying too loose a test of “reasonableness”. The question is not simply whether, viewed from some ill-defined concept of fairness or reasonableness, the mother’s actions were excusable. The position with regard to the terms “reasonable grounds” and “reasonable excuse” in s 70NAE is, I think, similar to that of terms of like generality, for example, “any just cause” used elsewhere in the Act….
At [29] the Court said, in terms that have particular application in the current matter:
Here, the context in which “reasonable excuse” applied tellingly included the subsections of s 70NAE. It also included that the father was entitled to spend time with the child pursuant to a court order. Such an order places serious obligations on persons in the position of the mother in this case.
Finally, for current purposes, at [34], the Full Court quoted the following passage from an earlier Full Court judgment in Gaunt (emphasis added):
The relevant context also includes authoritive [sic] statements of the court about like cases, of which the following statements In the Marriage of Gaunt (1978) FLC 90-468 are a good example (at 77,398):
The essential question is this - can a party who does not agree with a court’s decision about access defy the order and then plead that in preventing access his actions were based on his genuinely held belief that to allow the order to operate would be contrary to the welfare of the child? The question of the child’s welfare is, of course, the paramount consideration for the court in determining the access question in the first place. To allow a party to arrogate to himself a supervening power to make an independent decision on that issue and to rely on that decision to escape from compliance with the court’s order or from the consequences of non-compliance would undermine the purpose and intentions of the Act.
… A party’s subjective view of the rights and wrongs of a decision cannot be relied on as “just cause or excuse” or “reasonable cause”… .
In the light of the discussion of principle by Warnick J in Childers v Leslie, I make the following comments in the light of the documentary evidence. I should be taken to accept as undisputed fact the following matters.
First, according to the contact centre’s notes (Exhibit C), the child’s time with her Father in 2014 was consistently good, happy and age appropriate.
Secondly, the notes from the contact centre also confirm the following (emphasis added):
(a)On 9th May 2014, the Mother had a lengthy discussion with staff at the centre regarding, among other things, whether the Father could change the child’s nappy, whether visits could be reduced to once per month, and whether it was possible to have video footage of the visits to check out how they were actually going. The notes confirm that the Mother was anxious and was advised that the process could be quite overwhelming;
(b)There are notes dated 1st April 2014 which confirm that the child was in high spirits at the contact centre (smiling, playing with toys), but with the maternal Grandmother saying to the centre staff: “Tonight’s going to be hell … it takes 2 weeks to get over a visit and she always self-harms;”
(c)An entry in the contact centre notes, dated 4th May 2014, records the maternal Grandmother saying to the centre staff: “You’re on his [the Father’s] side.” The notes continued with a reply by the staff: “We’re on no one’s side. We can’t be. We’re here for the child.” To this the Grandmother said: “We have dirt on him.” The Mother said: “You’re all strangers … She doesn’t have a relationship with him.” The staff replied: “This is a chance for her to build one with him.” To this the Mother said” “As far as we’re concerned there shouldn’t be one. She shouldn’t be forced.”
(d)In the same batch of notes there is a typed note which recorded the Grandmother saying: “As far as we’re concerned, he was a sperm donor and nothing else.” Also, on the same occasion, the notes also record the Grandmother commenting on seeking to restrict the Father’s time with the child.
(e)In April 2015, the notes also confirm that the Mother had been “instructed by her lawyer that there would be no visits until after the hearing in May.” The Mother was encouraged to obtain legal advice in the light of the orders that had been made by the Court granting the Father time with the child at the contact centre.
Thirdly, from the records produced under subpoena addressed to JIRT, the following is recorded (emphasis added):
(a)There was no injury recorded in relation to the child;
(b)During an interview conducted on 23rd January 2015, the following report is stated: “at the end Ms Hall [the Grandmother] stated whether investigators wanted her to ask X some questions. She said “I can ask her and she will say exactly what you want to hear from her.” She also stated that she had to protect X;
(c)The Mother was advised on 3rd March 2015 that Community Services were not intervening in the proceedings, and that X was not assessed as being at risk of harm, and that JIRT was unable to substantiate sexual harm to X by her Father;
(d)The comments by JIRT later stated: “Due to X’s young age it is also difficult to determine how much of X’s reported disclosures might have been influenced by family members repeatedly asking X about what happened to her and possibly being suggestive in their questioning. Concerns were held by investigators due to Ms L Hall offering to investigators to interrogate X in front of investigators, stating that she knew how to ask the right questions and how to get the answers investigators were looking for.”
(e)The JIRT report stated further: “Concerns are held for X’s emotional and psychological development if family members do not manage to provide X with a supportive and caring environment for her to be able to have a positive relationship with both of her parents.”
(f)The report also confirmed that X is a healthy and happy three year old who, according to the learning centre she attends, “has never displayed any concerning behaviours.” These matters are further documented in the JIRT file with file notes from the Department of Family and Community Services who attended, for example, on the (omitted) Learning Centre on 3rd March 2015.
(g)The records indicate that the maternal Grandmother’s behaviour is calculatedly negative towards the Father, and thereby she is seeking to thwart any progress the Father has made, in very difficult circumstances, of trying to foster a meaningful relationship with his daughter. To state the obvious: while-ever the Grandmother’s negative, indeed, hostile attitude towards the Father prevails, and which obviously influences at least the Mother as well, all parties and the child will suffer. It is also important to record – again – that the Mother and the child need the Grandmother’s assistance on many levels. But, the encouragement to contravene orders so blatantly is both dangerous and highly detrimental to the child, and ultimately the Grandmother’s conduct puts the Mother at risk of even more serious consequences for breach of orders.
Pursuant to s.70NAF(1), and leaving to one side certain exceptions that are not relevant to the current matter, the standard of proof is the usual civil standard, namely, on the balance of probabilities.
I accept the following submissions on behalf of the Father:
(a)His affidavit, filed 16th December 2014, attaches various text/SMS messages from the Mother regarding not making the child available to spend time with her Father. None of those messages make any reference to an alleged disclosure by the child to either the Mother or to the Grandmother;
(b)The Mother did not contact the Father following the alleged disclosures to discuss it (or them) with him. Nor did the Mother discuss with the Father anything that may have occurred over the preceding weekend that might otherwise provide a rational explanation for X’s behaviour;
(c)The notes from the contact centre, and from JIRT, all confirm (i) how well the Father’s time with the child went in 2014, (ii) the general attitude in the Mother’s household (in which I include for the purposes of these reasons, the maternal Grandmother) being hostile to the Father, (iii) the hostility towards the Father being manifest in ways that included seeking to reduce the Father’s time with the child, and destructively derogatory and hostile comments about him (noted earlier in these reasons), and (iv) the actions of the Grandmother which included taking the child to see the counsellor, Ms H, without the Mother and without notice to the Father;
(d)The records from JIRT also confirm (i) the child is happy and doing very well at her early learning centre, (ii) there was no evidence to substantiate any sexual abuse as levelled against the Father, (iii) the JIRT team’s concern about the adverse influence of the Grandmother on the child.
Before concluding these reasons, I think it is important to repeat some matters:
(a)Because of the Mother’s work commitments, she is regularly absent and therefore reliant upon her Mother for support, assistance and general advice in the parenting of the child;
(b)The logistics in the matter – the distance between the parties, and the Mother working regularly in Western Australia – make regular, flexible parenting arrangements very difficult, which ultimately impacts adversely on the child;
(c)Evidence that pre-dates the consent Orders indicates that the Mother found the parenting arrangements emotionally challenging; the Grandmother’s hostility has ultimately, in my view, added to the on-going difficulties both for the Father and has added a layer of lack of support for the Mother, which again flows on negatively to the child and her relationship with the Father;
(d)On the Father’s oral evidence, it is clear that (understandably) he was and remains outraged at the accusations levelled at him concerning his daughter, and that he wants desperately to build a relationship with her, while the maternal Grandmother has sought, and apparently still seeks, to undermine and ultimately to alienate the Father/daughter relationship. Unless this dynamic changes, there is a significant risk that (i) adverse consequences will flow to the child, (ii) adverse risks will flow to the Mother, and (iii) adverse risks will attach to the Grandmother’s behaviour.
In the light of the instruction of Warnick J in Childers v Leslie (noted above) regarding the proper assessment of the Mother’s excuse against the terms of s.70NAE(5), in my view, the defence of reasonable excuse is not made out. True it is that the Mother was understandably concerned about the disclosures. However, in the light of all the evidence, including the independent records from JIRT, and in particular the matters to which I have referred from the Father’s submission which I have accepted, as well as the overt hostility of the Grandmother towards the Father and her undeniable influence on all things concerning the child, measured against the terms of s.70NAE(5) the Court could not be satisfied, to the requisite standard, that a reasonable excuse has properly been made out. The Court so finds.
In relation to the contravention of the amended orders, I also accept the submissions on behalf of the Father regarding the Mother’s failure to comply with orders requiring her to take all appropriate measures to commence counselling. True it is that the Mother has significant difficulties in relation to her employment in Western Australia. But employment responsibilities must take second place to the best interests of the child. This is especially the case where those responsibilities result in the child remaining for very large periods of time in the household and care of the Grandmother who has distinguished herself with demeaning remarks directed against the Father that he is merely “a sperm donor”, and that he should not have a relationship with his daughter.
The Grandmother’s attitude was palpably and disturbingly hostile to the Father during the hearing. Her remarks against the Father recorded in the contact centre’s notes are pernicious and offensive. Leaving the child for long periods with the Grandmother, as happens routinely because of the Mother’s work commitments, an environment which is caustically destructive of the child’s relationship with the Father, is a recipe for disaster. Both the Mother and the Grandmother need to address this situation as a matter of urgency.
Compliance with orders, from the Grandmother’s perspective, was clearly an inconvenience, somewhat like a “speed bump” around which one simply negotiated a different course to avoid. Indeed, the Grandmother’s action and attitude towards the Father was less one based on “inconvenience” and more on outright hatred and opposition. I have no confidence that the Grandmother will facilitate or promote at all a meaningful relationship between the child and her Father. In a worst case scenario from the Mother’s perspective, she (and the Grandmother) have to decide: will they facilitate the child’s time with her Father, or will they risk having the child residing primarily with the Father? All actions have consequences – both in the begetting of a child, and in the conduct of those responsible for that child’s care.
For these reasons, with only slight adjustment, the orders sought by the Father should be made.
In addition to the orders as sought by the Father being made, the Court makes the following orders:
(a)The Father’s time with X shall be at the contact centre for the first month, simply to enable there to be a protected environment for both Father and child. That time is to commence at the earliest possible time and shall take place no less than every second week on a day to be determined by the contact centre;
(b)The Mother is ordered to undertake counselling and provide evidence to the Court of having completed a parenting course for separated parents;
(c)The Mother is also ordered to ensure that the maternal Grandmother ceases her denigration of the Father. The Mother and maternal Grandmother are put on notice of the risk of severe sanction, which could include (among other things) a more severe bond, plus adverse costs orders, and even a possible change in residence of the child, if any breaches of existing orders occur. It is, ultimately, up to both the Mother and the maternal Grandmother to make the existing orders work. If they do not, adverse consequences will almost certainly follow.
Finally, the following further observations are apposite.
In Cullen, Strauss J (as part of a Full Bench otherwise comprising Watson SJ and Bell J) said (at Fam LR p.48):[22]
There are few greater evils in family law than recurring litigation about custody and access. It is detrimental to the child, particularly so if [she] is old enough to appreciate that [her] parents are in legal conflict. It saps the mental, emotional and financial resources of the parties. It taxes the resources of the court and of the community.
[22] Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113.
Given the child’s young age, she may not yet appreciate the bitterness of the dispute between her Mother and her Father, and the significantly adversarial role of her maternal Grandmother. However, it will not be long before she does so. For the sake of the child (not to mention their own mental well-being), it is imperative that all the adults in the child’s life take stock of the situation and work something out – otherwise the Court will end up doing so, at even greater cost to everyone.
X needs both of her parents, and as good a relationship with them both as she can get. She also needs other members of her wider family, including her maternal Grandmother. So too does the Respondent Mother. The Father needs the space and time to re-establish and then build his relationship with his daughter. This is going to take time. Unfortunately, while-ever Orders are not complied with, litigation will continue, which will de-rail any and all progress made in building a meaningful relationship between X and her parents (and significant others in her life), as well as cost them financially and exhaust them in all other respects. It is time for the adults to act like adults and stop playing hurtful games. These still young parents, and the child, need mature support, not more conflict.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 18 December 2015
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