BAWDEN & BAWDEN

[2020] FCCA 666

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAWDEN & BAWDEN [2020] FCCA 666

Catchwords:
FAMILY LAW – Contravention application – parenting – whether reasonable excuse – mental health of the father.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 65N, 70NAC, 70NAD, 70NAE, 70NAF

Cases cited:

Childers & Leslie (2008) FLC ¶93-356
In the Marriage of Gaunt (1978) FLC ¶90-468
O’Brien v O’Brien (1993) FLC ¶92-396

Applicant: MR BAWDEN

Respondent: MS BAWDEN

File Number: HBC 894 of 2018

Judgment of: Judge Baker

Hearing date: 13 March 2020

Date of Last Submission: 13 March 2020

Delivered at: Hobart

Delivered on: 27 March 2020

REPRESENTATION

Counsel for the Applicant: Mr Lewinski

Solicitors for the Applicant: Butler Mcintyre & Butler

Counsel for the Respondent: Ms Higgs

Solicitors for the Respondent: Dobson Mitchell Allport

ORDERS

1. The alleged contraventions of Order 10 of the orders made 23 October 2019 are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Bawden & Bawden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT HOBART

HBC 894 of 2018

MR BAWDEN

Applicant

And

MS BAWDEN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is a contravention application filed 20 December 2019 by Mr Bawden (“the father”). He alleged that Ms Bawden (“the mother”) contravened the final parenting orders made by consent on 23 October 2019 (“the Final Orders”) by not facilitating the commencement of unsupervised time for him with X, born in 2017, and Y, born in 2015 (“the children”).

2. Ms Bawden (“the mother”) admitted that she contravened the Order 10 of the Final Orders on the three occasions alleged, 30 November 2019, 7 December 2019 and 14 December 2019. She asserted that on each occasion she had a reasonable excuse, by not allowing the children to spend unsupervised time with the father. The children missed two visits, but on 14 December, the paternal grandmother supervised the time.

Background

1. The parties married in 2014 and separated on 28 January 2018.

2. The mother is 37 years old. She lives in Queensland, having relocated with the children in January 2020, pursuant to the Final Orders. She is currently unemployed.

3. The father is 40 years old. He lives in Town A, Tasmania. He is employed full time on a farm.

4. The mother filed an application for parenting and property orders on 31 October 2018. The matter was set down for final hearing on 23 and 25 October 2019.

5. A Family Report was prepared by Family Consultant B (“the Family Consultant”) and interviews were conducted on 31 July 2019 and 1 August 2019. The Report was released in open court on 13 September 2019.

6. On 23 October 2019, the final hearing did not proceed. The parties consented to the Final Orders, which essentially provided that the parties have equal shared parental responsibility for the children; the children live with the mother; and the mother be permitted to relocate to the Region C Queensland on or after 1 January 2020. Other orders and restraints were made.

7. Order 5 provided:

   5. Commencing on Saturday 25 October 2019 until the date of the Mother’s relocation with the Children, pursuant to paragraph 3 the Children will spend time with the Father as follows:

   (a)    For a period of four weeks, each Saturday from 9.00am until 3.00pm; and then

   (b)    Each Saturday from 9.00am until 5.00pm; and

   (c)     From 9.00am until 3.00pm on Christmas Day 2019.

8. Order 8 provided:

   8. The Father’s time with the Children pursuant to paragraphs 5, 6 and 7 will be supervised at all times by the paternal grandmother until such time as the father has complied with the provisions of paragraphs 9 and 10 NOTING THAT the Paternal Grandmother will provide an undertaking to the court with respect to her responsibilities as a supervisor of the children’s time with the Father.

9. Orders 9 and 10 provided that the children’s time with the father become unsupervised once he has engaged with a psychologist as follows:

   9. The Father will engage with a qualified psychologist (“the psychologist”) and:

   a)   Within fourteen (14) days of the date of this Order provide to the Mother’s solicitors proof of his referral to and written confirmation of an appointment with the psychologist;

   b)   Leave will be and is hereby granted to the Father’s solicitors to provide to the psychologist a copy of the Family Report dated 1 August 2019, the affidavit of the Mother filed 9 October 2019, the affidavit of the Father dated 1 April 2019 and a copy of this Order, and the Father will authorise his solicitors to provide those documents as soon as reasonably practicable after his engagement with the psychologist has been confirmed; and

   c)   The Father will attend all appointments as recommended by the psychologist and comply with his or her reasonable directions including as to treatment, regularity of appointments, and medication.

   10.The Father’s time with the Children pursuant to paragraphs 6 and 7 will become unsupervised upon the Father providing to the Mother’s solicitor or direct to the Mother a letter from the psychologist which:

   a)   Confirms that in the psychologist’s opinion the Father is not suffering from mental health issues or drug or alcohol dependencies which would impact upon his ability to safely spend time with the Children without supervision; and

   b)   Confirms the Father’s compliance with paragraph 9(c)

   and upon that letter being provided the paternal grandmother shall be relieved of her undertaking as referred to in paragraph 8 and the Father’s time with the Children shall proceed on an unsupervised basis.

10. On 28 November 2019, the father provided a letter from a clinical psychologist, Mr D, dated 27 November 2019, to the mother’s solicitors. The father’s intention was for that letter to satisfy the requirements of Order 10 to enable him to commence unsupervised time with the children.

11. Mr D wrote:

    Mr Bawden saw me last week regarding his recent Family Court Matter.

    The Family Court have (sic) ordered him to attend a Psychologist for assessment and treatment.  In my opinion he has some issues associated with the marriage but these are not sufficient to require mandatory treatment at this time. I suggest that treatment may assist him to resolve these issues but I don’t recommended (sic) mandatory attendance.

    In my opinion Mr Bawden is not suffering from mental health issues including alcohol or drug dependencies which would impact his ability to safely spend time with his children without supervision…

12. On 29 November 2019, the mother’s solicitors wrote to the father’s solicitors notifying him that the mother would not facilitate unsupervised time. To date, the mother has continued to refuse to facilitate unsupervised time.

13. On 4 December 2019, the mother filed an application seeking orders to suspend the father’s unsupervised time with the children. That application together with the father’s contravention application, filed 20 December 2019, were listed for directions on 4 February 2020. The contravention application was adjourned for hearing, prior to hearing the mother’s application to suspend the father’s time with the children.

Relevant Law

1. The meaning of “contravention” with respect to an order is defined in s.70NAC of the Family Law Act1975 (Cth) (“the Act”) which provides that:

   A person is taken for the purposes of this Division to have contravened an order under this Act affecting children, if and only if:

   (a) Where a person is bound by the order–he or she has:

   (ii)Intentionally failed to comply with the order;  or

   (iii)Made no reasonable attempt to comply with the order.

   …

2. The standard of proof is on the balance of probabilities, s.70NAF(1). The applicant has the onus of proving the allegations. Section 70NAD provides:

   (a)    a parenting order that deals with whom a child is to spend time with is taken to include a requirement that people act in accordance with section 65N in relation to the order.

   (b)    a parenting order that deals with whom a child is to communicate with is taken to include a requirement that people act in accordance with section 65NA in relation to the order;

   (c)     and a parenting order to which section 65P applies is taken to include a requirement that people act in accordance with that section in relation to the order.

   (d)    …

3. If a person has the defence of reasonable excuse, the onus is on that person to prove, on the balance of probabilities, the asserted reasonable excuse. I refer to s.70NAF(1) and (2). Section 70NAE(1) sets out the meaning of “reasonable excuse”. I refer to s.70NAE(5) which provides:

   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 that order if:

   (a)    The respondent believed on reasonable grounds 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 of the child;  and

   (b)    The period during which, because of the contravention, the child of the person did not spend time together, was not longer than was necessary, to protect the health or the safety of the person referred to in paragraph (a).

4. In Childers & Leslie,[1] Warnick J stated that an order that entitled the father to spend time with a child places a serious obligation on persons in the position of the mother in that case. Justice Warnick referred to s.65N which was the relevant section in that case and the objects set out in s.60B.

   [1] (2008) FLC ¶93-356.

5. In O’Brien v O’Brien,[2] Justice Smithers said:

   The passing of section 112AC(3) makes it clear that a reasonable excuse in respect of concern as to the welfare of  the child, is limited to a belief, on reasonable grounds, that depriving a person of access pursuant to an order was necessary to protect the health or safety of a person. It is not a question as to whether in the view of the custodial parent, or in the view of the custodial parent on reasonable grounds, that the carrying out of the access order might not be in the best interests of the child.  The question is whether is whether it is necessary to protect the health or safety of a person, including a child.[3]

   [2] (1993) FLC ¶92-396.

   [3] Ibid, 80,045.

The Contraventions

1. The father’s case is that he has complied with the terms of the Final Orders, which enable him to cease supervised time and commence unsupervised time with the children. He agreed to have supervised time with the children until he attended a psychologist and provided a report in the terms agreed, despite his denial that he poses a threat to the children. He deposed that:

   Ms Bawden had previously asserted that I had issues which required attention from a psychologist and which posed a threat to the children. I have always denied that this is the case and whilst I do suffer from anxiety, that has been brought along by the constant battle that I have had to be able to spend time with my children and the general Court proceedings. 

2. The mother’s case is that she has always maintained the position that “the father suffers from severe mental ill-health and alcohol dependency”. In her Case Outline, she noted that her concerns were echoed in the Family Report. She referred to paragraph 90 of the Family Report, where the Family Consultant wrote:

   Because it appears that Mr Bawden has experienced a prolonged period of mental health difficulties, it may well take a considerable period of time for him to access and engage with the appropriate supports and to see a meaningful improvement in his emotional stability and well-being.

3. The mental health of the father has been a dispute throughout proceedings. The mother deposed that she suspended his time with the children in August 2019, as a result of her concerns about his mental health. She deposed:

   Mr Bawden has been seeing his GP, Dr E at F Medical Centre for the past 4 years at least. She diagnosed him with severe depression and anxiety and also had had him on a number of prescription medications for this…Dr E had also referred Mr Bawden to a number of psychologists during our marriage, however Mr Bawden never continued treatment with them. I recall him being referred to one psychologist in Suburb G, and another in Suburb H. Dr E advised Mr Bawden that with the medication he was on he should not be having any alcohol at all, however during the course of our marriage Mr Bawden was a heavy drinker and did not comply with this advice. I deposed at paragraph 53 of my affidavit affirmed 9 October 2019 that Mr Bawden’s bank statements showed high spending at bottle shops on a regular basis.

4. Counsel for the mother tendered records of Dr E from April 2013 to June 2018 to support her position of the father’s mental health history.[4] These documents show that the father had ongoing mental health issues during that period, and was prescribed various medications to assist him to manage those issues. In April 2013, he reported having problems with sleep, and Dr E noted insomnia as the reason for contact. In May 2013, he presented to Dr E in relation to insomnia again. She noted that he was “still not sleeping…gettign (sic) really snappy and unhappy and affected by it – wassent (sic) home from work”. In May 2015, Dr E wrote that the father had a known history of major depressive disorder, anxiety disorder, insomnia and mood lability cause of aggravated anxiety and insomnia. The father reported that the medication he was currently on was not helping. On 9 June 2015, there was discussion about having him admitted to Town J Hospital. He was “keen to be reviewed by psychiatrist but not willing to get admitted”. It was noted he “has reduced his alcohol intake…”. On 24 June 2015, the mother attended the father’s appointment with him. It was noted that he was “feeling very low in his moods- says his symptoms are overwhelming him…[and] wasn’t coping well at all and feeling suicidal”. Dr E advised admission to hospital, but he refused. In August 2015, he had not been sleeping well and it was noted he needed a mood stabiliser. In June 2017, he had an “over extended consult for urgent review for severe symptoms”. The notes include:

   [4] Exhibit R2.

   Severely distressed and not coping well at all

   Says he doesn’t want to go on like this and can’t go on like thos (sic)

   wife has had enough of his mood lability and threatening to leave

   Very long standing h/o depression and anxiety-

   Partner is suffering from carer fatigue.

   Wanting to get things better to help himself and her-

   As he says he is tired of feeling this way and

   Does not want to live with current anxiety and distress…

5. In June 2018, approximately six months after separation, the father had an extended session with Dr E. It was noted that he was very distressed and not coping well at all.

6. Interviews for the Family Report were conducted on 31 July 2019 and 1 August 2019. The father did not attend the observation session with the children, so the Family Consultant was unable to comment on his parenting style or relationship with the children. She reported that he had contacted the court the day prior to the interviews expressing concern  that he “was not in the state of mind he would want his children to be exposed to”. She had supported his decision not to attend observation if he “was not feeling able”. She reported that this was a positive indication of the father having the “capacity to identify and acknowledge disruptions to his emotional stability [and he] was able to reflect on the possible impact on Y and X to see him like that”. The mother agreed with counsel for the father that this could be seen as a good thing, but said what the father told the Family Consultant about why he could not attend was different to what he told her, so this should not be considered a positive.

7. The Family Consultant noted that the father presented as “highly stressed, agitated and anxious throughout his interview”. She wrote:

   Mr Bawden made two comments during the interview in regards to self-harm, referencing methods of self-harm which could likely eventuate in suicide. It was also noted that, when Mr Bawden was contact (sic) by phone the day following his interview, he did suggest that he has experienced suicidal thoughts in the past, but he did not indicate that he was a risk to himself on that current day. Mr Bawden eluded that if he was to “lose” the care of his children, then this would place him in a very difficult position in terms of self-harm and mental health. When asked about mental health support, Mr Bawden said that he did not want to see any psychologist or attend counselling as he has not ever found any of them useful.[5]

   [5] Family Report, [46].

8. Due to concerns raised about the presentation of the father during the report interview process, special arrangements were made to release the Family Report in open court on 13 September 2019, with the father’s solicitor present. This was to ensure that there were appropriate support processes in place to ensure the father’s safety.

9. The concerns about the father’s mental health were outlined in the Family Report as follows:

   27. Ms Bawden, throughout the interview, raised significant concerns in regards to Mr Bawden’s mental health. Ms Bawden alleged that Mr Bawden has experienced severe anxiety and depression since they commenced their relationship. Ms Bawden said that during their relationship Mr Bawden’s treating doctor wanted to admit him into hospital as a result of his poor mental health, however Mr Bawden allegedly would not agree. Ms Bawden alleged that Mr Bawden would often be late to fill his prescription for his mental health medication, and would prioritise beer money over money for his medication; resulting in a decline in his mental health state. Ms Bawden also alleged that Mr Bawden would experience a low in his mental health state every 4-5 months and, as a result, could become suicidal.

   82. Throughout this assessment, concerns have been raised surrounding Mr Bawden’s mental health. These concerns surround the stability of his mental health and how his presentation, functioning and parenting capacity is impacted when he is experiencing a period of poor mental health. It was apparent that Mr Bawden experienced some level of disruption to his mental health over the two days of this assessment. Mr Bawden was observed to seem overwhelmed, stressed and anxious and presented to be verbally aggressive, defensive, and, at times, unable to hear questions being asked of him, or process and respond to information offered to him. Whilst the observations of Mr Bawden may not be representative of his presentation more generally, they could be reflective of his presentation during period of stress and hardships.

   84. Positively, Mr Bawden did present with capacity to identify and acknowledge disruptions to his emotional stability and was able to reflect on the possible impact on Y and X to see him like that. Such awareness appears to have been demonstrated in Mr Bawden’s decision to not attend the observation session and, possibly, in the alleged pattern of him cancelling contact. This insight into his mental health presentation could be seen to be a protective factor in regards to Mr Bawden’s parenting.

   85. Whilst Mr Bawden was able to identify his children’s needs in the context of his mental health, he was not accepting that ongoing therapeutic mental health support would be of benefit to him. Mr Bawden, based on his past experiences, did not indicate a willingness or want to engage with this kind of support despite his mental health affecting his day to day activities such as socialising, and his thoughts of self-harm. While it is positive that Mr Bawden is engaged actively with his GP regarding the medical treatment of his mental health, it is widely accepted that treatment approaches combining both pharmacotherapy and therapeutic support are more likely to result in positive outcomes.  It is likely that Mr Bawden, with the continued support of his GP, would benefit significantly from engagement in ongoing therapeutic support with a psychologist to improve his mental health and well-being.

   90. However, given the concerns that surround Mr Bawden and his current reported and observed mental state, it may not be in Y and X’s best interest to have increased contact with their father at this time. Whilst Mr Bawden seemingly has appropriate parenting skills, his mental health appears to have a significant impact on his functioning, and likely his parenting. Especially considering there are reports that Y is experiencing some level of anxiety at this stage of his development. Reports of Y experiencing anxiety in the context of the parenting arrangement may also be reflective of the disruption experienced by Y in the context of the current circumstance for Mr Bawden in regards to his mental presentation and alleged cancelled contacts. If these issues for Mr Bawden remain ongoing, it may not be in Y’s best interest to continue to have overnight contact with Mr Bawden until such issues begin to be actively addressed as this would result in instability for him and possibly affect his anxieties. Given that Y and X are of a young age, they have limited ability to be able to self-protect and access support if Mr Bawden does become unwell whilst they are in his care. Because it appears Mr Bawden has experienced a prolonged period of mental health difficulties, it may well take a considerable period of time for him to access and engage with the appropriate supports and to see a meaningful improvement in his emotional stability and well-being.

   95. It is recommended that Mr Bawden engage with therapeutic mental health and alcohol and drug support.

   96. Until Mr Bawden is able to evidence improvement in his mental stability, it would likely be in Y’s best interest to cease overnight visits at this current time. If Y and X remain in Tasmania, it would be of benefit for the children to have day contact with their father, possibly 4-5 hours at a time, rather than overnight contact to ensure stability in their care and encourage healthy relationships with Mr Bawden. In the event that Mr Bawden’s mental health is stabilised over a period of 6 months, consideration could be given to the children spending increased time in his care, including overnight time. This could possibly be structured as a gradual progression over a period of 12 months to reach an alternate weekend time arrangement.

   98. If the court determines that it is in Y and X’s best interest to move to the Region C with Ms Bawden, then 4 weeks contact per year, week at a time would be developmentally and age appropriate for them, considering Mr Bawden is able to manage his mental health difficulties. If Mr Bawden’s mental health continues to remain unstable, then a full week’s contact would likely not be appropriate, but rather consecutive day contact could perhaps be more suitable either in Tasmania or Queensland.

1. These paragraphs of the Family Report highlight the issue of the father’s mental health as being a concern in respect of his parenting capacity. The Family Consultant contemplated a course of therapy over a period of six months to stabilise his mental health.

Evidence of Psychologist Mr D

1. Mr D is a clinical psychologist. He met with the father on 14 November 2019 for an assessment. The purpose of the assessment was for the father to obtain a letter pursuant to paragraph 10 of the Final Orders.

2. In Mr D’s affidavit annexing his letter dated 27 November 2019, he  deposed that he had reviewed documents provided to him by the father’s solicitors, including the Family Report; the mother’s affidavit filed 9 October 2019; and the father’s affidavit filed 29 March 2019.

3. During cross-examination, Mr D agreed that he had one appointment with Mr Bawden.  He agreed that his file notes indicated that the father felt anger at the system and at the mother being believed. He agreed that after the appointment he wrote to Dr K on 19 November because he was Mr Bawden’s general medical practitioner.  In the letter he wrote:

   … He reports to me that his issues with depression and anxiety that led him to being prescribed antidepressants were triggered by his ex-wife and the ending of the relationship is seen an improvement in his condition.  His ex-wife has claimed he is at risk to the children because of his mental health and drug and alcohol issues.  He reports ongoing issues with anger associated with the Family Court matter as he feels discriminated against and that the court believed a number of lies by his ex-partner.  His anger during the assessment and mediation probably didn’t help his case but it is now too late.  He is not interested engaging in ongoing psychological therapy to address any issues.

   Could you please let me know:

   1. How long has he been a patient?

   2. Do you believe his ex-wife was the main trigger for his anxiety and mood issues that led to his being prescribed antidepressants?

   3. Do you have any concerns over him having unsupervised time with his children?

   I would greatly appreciate a few minutes to obtain your opinion…

4. Mr D said that he did not receive a response from Dr K. When asked why he wrote to Dr K, he answered that it is always a good idea in this sort of situation to get a second opinion. When asked whether his opinion was affected by not receiving a response, he said no, as the “key elements… one of the first things that he said to me was, she was a bully.”

5. He gave evidence that his opinion about Mr Bawden was formed by his one hour assessment without undertaking any diagnostic tests, and this was sufficient for him to make his assessment.

6. During cross-examination, Mr D agreed that he had not read the Family Report, in which the Family Consultant had very strong concerns that Mr Bawden had experienced a prolonged period of mental health difficulties, and that it may take a considerable period of time for him to access and engage with appropriate supports.

7. At the time of writing the letter, he had not reviewed the father’s medical records. He subsequently read them and said it did not alter his opinion about the father.

8. Mr D was not an impressive witness. He deposed that he had provided his letter after reading and reviewing the documentation provided to him by the husband’s solicitors, which included the Family Report.  However, his oral evidence was that he had not read it. He informed his opinion by accepting what the father told him and said that the key element was that the mother was a bully. He sought a second opinion from Dr K and did not receive a response. He did not have access to the father’s medical records at the time he formed his opinion. These matters raise a concern for the Court about his assessment, and this concern is relevant to the mother’s application to suspend the orders.

Did the mother have a reasonable excuse to contravene the order? Did she believe on reasonable grounds that by not allowing the children and the father to spend unsupervised time was necessary to protect their health or safety?

1. The father’s case was that the mother has no credibility and she tricked him into consenting to the relocation of the children to Queensland. It was submitted that because she had not required supervised time in the past, this demonstrates that she did not believe that supervised time was necessary to protect the safety of the children.

2. The mother’s case was that she did not contemplate the father would be able to comply with Order 9 after only one appointment with a psychologist. She has maintained since she commenced her application that he suffers from severe mental health and alcohol dependency. She was concerned that he had not received appropriate treatment for his mental health and believed that the children would be at risk of harm if having unsupervised time.

3. The father’s medical records indicate that since 2013, he had been consulting his GP on a regular basis for depression and anxiety.[6] He had been referred on several occasions to psychologists or psychiatrists and, at least twice, was recommended to self-admit to hospital, and which he declined.

   [6] Exhibit R2.

4. Counsel for the father put to the mother during cross-examination that she had not raised a requirement for supervision in any of her court applications or documents, and that was something she only raised after the release of the Family Report. It was suggested that this was because the father’s mental health was not a big concern, and that requiring him to spend supervised time with the children was “about control and … bullying”. The mother rejected this.

5. She agreed that the father had spent unsupervised time with the children from 2017 to 2019. She agreed that she had not sought supervision orders when she filed her application, or in her amended application filed in April 2019. In re-examination, she said that it has always been the case that she felt the father needed to be supervised while spending time with the children. She explained that she sought: “Sole physical custody and sole physical – and, like, you know, so that I had fully responsibility for the kids and that he didn’t have anything with them at all.” She explained that was “Because of Mr Bawden’s mental health and him not turning up for the children when – when he should have, or when he said he – he would.”

6. In her affidavit filed 4 December 2019, she deposed that she had suspended the father’s time in August 2019 because she was concerned about his mental health. His time resumed on the basis he would consult a psychologist. She deposed that she was alarmed when the psychologist made an assessment of his mental health after one session, in light of the findings of the Family Report. She deposed:

   I am extremely concerned that Mr Bawden is not mentally healthy and that the children’s safety will be at risk if they are in his care unsupervised.  I am very worried that he remains extremely angry at me for our separation and for my imminent relocation to Queensland.  I am very worried that he would take this anger out on the children and will harm them or that he will take them and disappear with them before I move to Queensland.

7. It was put to her that she was surprised that Mr D did not share the same view as her as to what should happen to the father. She said: “I wasn’t surprised that they didn’t share my view.  I was surprised that after one visit that they would – that they would come to that conclusion, yes.” In relation to her view about requiring supervision at the time the consent orders were made, she said: “it was based on my time with Mr Bawden when we were married and knowing his mental health history, and in addition to the Family Court Consultant information.”

8. The mother said that nothing has changed since the consent orders were made that has changed her view. She said, “I have had concerns the entire time”. She said she has not complied with the order to allow the father to spend time unsupervised “because I feared for my kids’ safety. That’s why. And I have done that the entire time.” She said the Family Report informed her that the father’s mental health had not improved since they were living together, and she therefore found it “very hard” to be happy with Mr D’s report after one visit. She said:

   I just – I don’t understand how after one visit that – that they can determine that, you know, there’s no mental health issues or drug or alcohol dependencies…

   I lived through his mental health issues and going to the doctors with him and seeing him telling me that he wanted to commit suicide and all of – all of that.

   That doesn’t just change overnight.

9. I consider that the mother was a credible witness, who did not waiver under cross-examination. I accept her evidence of her ongoing concern about the father’s mental health condition, based on her observation and experience of his mental health issues, both while the parties were in a relationship and post-separation. She had suspended unsupervised time in August 2019 because of her concerns. I do not accept that she tricked the father into agreeing to the relocation of the children. She agreed to orders for time to occur, but wanted the father to have treatment to ensure the safety of the children.

10. Having regard to the contents of the Family Report, in particular paragraphs 90 and 96; the recommendations of the Family Consultant; and the father’s mental health history, I am of the view that she believed on reasonable grounds, that not allowing the children and the father to spend unsupervised time, was necessary to protect their safety. It was reasonable for her to believe that a course of treatment would be needed for the father, and not one appointment. I consider that it was reasonable for her to question the opinion of Mr D, notwithstanding that the father complied with order 9. I am therefore of the view that the mother had a reasonable excuse for contravening the order.

11. I dismiss the contravention application.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Baker

Date:  27 March 2020