Baldwin and Walker

[2013] FamCA 712

FAMILY COURT OF AUSTRALIA

BALDWIN & WALKER [2013] FamCA 712

FAMILY LAW – Contravention application

APPLICANT: Mr Baldwin

RESPONDENT: Ms Walker

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: BRC 3973 of 2008

DATE DELIVERED: 2 July 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 2 July 2013

REPRESENTATION

APPLICANT: Mr Baldwin in person

COUNSEL FOR THE RESPONDENT: Mr Edwards of Counsel

SOLICITORS FOR THE RESPONDENT: Bradley Munt & Co

Orders

1. The Father’s Contravention Application filed 2 November 2012 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baldwin & Walker has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3973 of 2008

Mr Baldwin

Applicant

And

Ms Walker

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. I am asked today to deal with an Application for Contravention filed by Mr Baldwin, the Applicant father, on 2 November 2012.  The alleged contravention is that, on 26 October 2012 at 5 pm at Ipswich, Ms Walker, the Respondent mother, without reasonable excuse, refused to allow the father to spend time with the child, B and that such action was in contravention of the Order of the Court made on 18 April 2012 by Jarrett FM (as his Honour then was).

2. The Respondent, who appears via her Counsel Mr Edwards, accepts that she did not provide the child to spend time with this father on 26 October 2012.  However, she asserts that her actions amounted to, or that she had, a reasonable excuse for so acting when regard is had to the matters contained within the affidavit filed 25 June 2013.  The mother gave, in addition to the evidence contained within her affidavit material, evidence orally before me.  She was cross-examined by Mr Baldwin.  She gave evidence of the contents of a telephone conversation between herself and Ms Baldwin the mother of the father’s two (2) other children who are older than the child.

3. She said, during the course of her oral evidence, that, during the telephone conversation which occurred on 13 October 2012, she was told by Ms Baldwin that Ms Baldwin had concerns about the safety of her children who are aged 14 and 15 years respectively.  The mother said that Ms Baldwin told her that she held concerns about the father picking C up by his ankles in anger and causing him to hit his head on the bed, that he had been taken to hospital with concussion.  That D, Ms Baldwin’s daughter, had witnessed this and was so traumatised that she was not spending time with her father at that time and that, as a result of those concerns, the time between Ms Baldwin’s children and the father had decreased such that it occurred on a number of hours per week.

4. The mother said that Ms Baldwin also told her of an event where the child had witnessed an incident of, what she described as, domestic violence where Mr Baldwin is said to have pushed Ms Baldwin in front of the children.  The mother says that she was told by Ms Baldwin of concerns held by Ms Baldwin that the father’s level of violence and/or aggression was increasing.  I accept the mother’s evidence in this regard.  I accept that she was told things in the course of the telephone conversation between herself and Ms Baldwin on 13 October 2012 which caused her to seek legal advice and to attempt to obtain assistance about what avenues were then open to her.

5. I accept her evidence that the information received from the solicitors upon whom she attended was to the effect that she should act protectively but that the decision about how to act in the face of existing Court Orders was one ultimately for her.  The mother relies upon as forming part of the matrix within which her decision to refuse to send the child to spend time with his father on 26 October 2012 must be seen, the matters contained within paragraph 31 of her affidavit filed 25 June 2013.

6. I think those matters are relevant for a number of reasons.  First, they provide evidence of actions and observations by the mother over a period of time. Despite those observations including, as I understand the evidence, of three (3) occasions on which the child returned to her care following time with his father with a split lip as she did not, prior to 26 October 2012, determine to act so as to prevent the child from spending time with his father.

7. I consider that a relevant factor because it is relevant to the manner in which she approached the obligation imposed upon her by the existing Court Order and the requirement that such Order imposed in terms of her facilitation of time between the child and his father.  The mother was not challenged in the course of cross-examination about her evidence that there were occasions when the child returned to her care with a split lip and she asked the father for some information and/or explanation about the same and he did not provide it.

8. Mr Baldwin did not give evidence before me other than relying, of course, upon his affidavit filed in support of the Application for Contravention. 

9. The requisite standard of proof which I must apply in assessing whether I am persuaded that the mother had a reasonable excuse for acting in the manner that she did is that of the balance of probabilities. The term “reasonable excuse” is defined in s 70NAE of the Family Law Act1975 (Cth) to include matters prescribed in subsections 2, 4, 5, 6 and 7 of that section. Section 70AE prescribes that a person is taken to have a reasonable excuse for contravening an order in circumstances which include, but are not limited to, those matters set out in those subsections.

10. Relevantly, it seems to me, s 70NAE(5) [as I have paraphrased below] provides that:

    A person has a reasonable excuse for contravening a parenting order to the extent that it prescribes with whom a child has to spend with where the contravention results in the child not spending time with the person meant to spend time with the child under the order if:

    a)the respondent believed on reasonable grounds that not allowing the child to spend time with the person 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 did not spend time together with the person was not longer than necessary to protect the health or safety of that person referred to in paragraph (a).

11. I accept the evidence given by the mother that, the Monday immediately following the Friday where she determined not to provide the child for time with his father, that she filed and sent to the Court an Application, together with a Notice in Form 4 alleging and raising issues of family violence, and I accept and find that she believed, on reasonable grounds, that not allowing the child to spend time with his father on that weekend was necessary to protect the child’s health or safety.

12. I am persuaded, given the evidence contained in the affidavit of the pre-existing matters of concern, together with her evidence given orally about her knowledge of and observations of bruises occasions on the child’s person after he has returned from his father’s care, that she held such a belief and that such a belief was held on reasonable grounds.  I am also satisfied, given that it is not contended by the parties, that save for that weekend there has not been anything other than compliance with the existing Order.  The period during which, because of the contravention, the child did not spend time with his father was no longer than necessary to protect his health or safety.

13. I am satisfied that the mother acted reasonably and has a reasonable excuse for her actions.  I am also satisfied that she acted appropriately in immediately attempting to bring the matter before the Court for its further consideration and determination. 

14. For these short reasons, I dismiss the Father’s Application for Contravention filed on 2 November 2012.

I certify that the preceding twelve (12) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan delivered on 2 July 2013.

Associate: 

Date:              2 July 2013