BOTSMAN & AMUNDSON

[2009] FamCA 978

FAMILY COURT OF AUSTRALIA

BOTSMAN & AMUNDSON [2009] FamCA 978

FAMILY LAW – CHILDREN – ORDERS – CONTRAVENTION – whether the father contravened an order by refusing to return the child to the mother – whether the father had a reasonable excuse for failing to return the child – Court satisfied that the father intentionally failed to comply with the order without reasonable excuse

FAMILY LAW – CHILDREN – ORDERS – CONTRAVENTION – whether the father contravened an order by failing to comply with the reasonable direction of a Children’s Contact Service on two occasions – whether the father had a reasonable excuse – whether the father understood the obligations imposed by the order – Court satisfied that the father contravened the order without reasonable excuse – Court satisfied that the father’s behaviour showed a serious disregard for his obligations under the order

Family Law Act 1975 (Cth) ss 64B, 65M, 70NAC, 70NAE & 70NAF

Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655
Dobbs & Brayson (2007) FLC 93-346

APPLICANT: Ms Botsman

RESPONDENT: Mr Amundson

FILE NUMBER: ADC 75 of 2007

DATE DELIVERED: 16 October 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 28 July 2009 and 28 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Tinning

SOLICITOR FOR THE APPLICANT: Adey Lawyers

COUNSEL FOR THE RESPONDENT: N/A

SOLICITOR FOR THE RESPONDENT: In Person

Orders

1. I adjourn the matter to allow the parties to consider my reasons and return to the Court to make submissions as to the further orders to be made.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 75 of 2007

MS BOTSMAN

Applicant

And

MR AMUNDSON

Respondent

REASONS FOR JUDGMENT

Introduction

1. On the 27 February 2009 the mother, Ms Botsman, filed a contravention application alleging that the father, Mr Amundson, had contravened the orders the Court made on the 26 August 2008.

2. The proceedings between the parties relate to their son X who was born in December 2001.

3. In the application for contravention the mother asserted that the father had contravened paragraph 3 of the order of the 26 August 2008 on the 25 January 2009 when he “without reasonable excuse refused to return the child to his mother”.  (See paragraph 7 of the contravention application).

4. Paragraph 3 of the order of 26 August 2008 provides:

   “3.     That in addition to the time provided for [X] born […] December 2001 to spend with his father in the consent order made herein on 10 July 2008, [X] also spend time with his father during the Christmas school holiday period in each year in each alternate week commencing at the conclusion of school or 2pm on the Friday usually falling in the cycle of the father’s weekend time and concluding on the following Friday at 2pm SAVE AND EXCEPT that in January 2009 the father’s time with [X] conclude at 2pm on Sunday, 25 January 2009.”    

   (An order of Federal Magistrate Mead in the Federal Magistrates Court of Australia at Adelaide).

5. The mother also alleged that the father contravened paragraph 1 of the orders made on 26 August 2008 on the 1 February 2009 and the 15 February 2009 when “the respondent without reasonable excuse refused to comply with all reasonable direction of the service”.  (Paragraph 9 of the contravention application).

6. Paragraph 1 of the orders of 26 August 2008 provides:

   “1.     That the parties do within seven [7] working days of today’s date all such things as are necessary to apply for acceptance into the [M] Children’s Contact Service handover program and do comply with all reasonable direction of the service as regards handover regulations.”

7. The father admitted that he did not return the child to the mother on the 25 January 2009 at 2.00 pm but claimed that he had reasonable excuse for not complying with the order. 

8. The father denied contravening the order in paragraph 1 of the orders of 26 August 2008.

Hearing

1. The hearing in relation to the contravention took place on the afternoon of the 28 July 2009 and on the 28 August 2009.

2. The father was unrepresented.  The mother was represented by Ms Tinning of counsel. 

3. The mother relied upon the contravention application filed on the 27 February 2009, her supporting affidavit filed on the same date and her oral evidence.  The mother also relied upon the evidence of two witnesses;  Ms S, a social worker employed by the M Children’s Contact Service and Ms C, a supervisor at the M Children’s Contact Service.  Both gave oral evidence and were cross-examined by the father.

4. The father relied upon his affidavit which was filed on the 12 March 2009.  He gave oral evidence and was then cross-examined by Ms Tinning.

5. On the conclusion of the father’s evidence I gave leave to the mother to be recalled when she was re-sworn and gave evidence concerning notes from the child’s doctor’s surgery which was received and became Exhibit 8. 

6. I heard submissions from Ms Tinning, counsel for the mother and the father in person.

7. Judgment was reserved on the 28 August 2009.

Background

1. The child of the parties X was born in December 2001 and is now aged 8.  Proceedings first commenced in the Federal Magistrates Court in June 2003.  There have subsequently been further proceedings in the Federal Magistrates Court which concluded with orders made by consent on the 10 July 2008 providing that the child live with the mother , spend time with the father on alternate weekends and during part of the school holidays.  These consent orders did not make provision for Christmas school holidays and handovers.  This matter was determined by Federal Magistrate Mead on the 26 August 2008.  It is that order which is the subject of the contravention proceedings before the Court.

The Law

1. Division 13A of Part VII the Family Law Act 1975 (Cth) deals with “consequences of failure to comply with orders, and other obligations, that affect children”.  Section 70NAC provides:

   Meaning of contravened an order

   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 the person is bound by the order--he or she has:

   (i)     intentionally failed to comply with the order; or

   (ii)    made no reasonable attempt to comply with the order; or

2. Section 64B(1)(a) provides:

   (1)    A parenting order is:

   (a)an order under this Part (including an order until further order) dealing with a matter mentioned in subsection (2);

   …

3. Sub-section (2) states:

   (2)    A parenting order may deal with one or more of the following:

   (a)the person or persons with whom a child is to live;

   (b)the time a child is to spend with another person or other persons;

   …

   (i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

4. Sections 65M(1) and 65M(2)(a) and (b) state:

   General obligations created by parenting order that deals with whom a child lives with

   (1)    this section applies to a parenting order that is in force in relation to a child to the extent to which the order deals with whom the child is to live with.

   (2)    a person must not, contrary to the order:

   (a)     remove the child from the care of a person; or

   (b)     refuse or fail to deliver or return the child to a person;

   …

5. Section 70NAE is headed “Meaning of reasonable excuse for contravening an order” and provides:

   (1)    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).

   (2)    A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:

   (a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and

   (b)the court is satisfied that the respondent ought to be excused in respect of the contravention.

   …

   (4)    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 live with in a way that resulted in the child not living with a person in whose favour the order was made if:

   (a)the respondent believed on reasonable grounds that the actions constituting the contravention were 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 live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).

Standard of Proof

1. The amendments to the Act which brought into effect section 70NAF require the Court to interpret that section when attempting to determine the appropriate standard of proof to be applied to findings that establish the grounds of contravention.

2. Section 70NAF provides:

   (1)    Subject to subsection (3), the standard of proof to be applied in determining matters in proceedings under this Division is proof on the balance of probabilities.

   (2)    Without limiting subsection (1), that subsection applies to the determination of whether a person who contravened an order under this Act affecting children had a reasonable excuse for the contravention.

   (3)    The court may only make an order under:

   (a)     paragraph 70NFB(2)(a), (d) or (e); or

   (b)     paragraph 70NFF(3)(a);

   if the court is satisfied beyond reasonable doubt that the grounds for making the order exist.

3. This section is difficult to apply because it requires the Court to use a different standard of proof depending upon the type of penalty that might be considered if the contravention is found to have been proved.  (See Elspeth & Peter; Mark & Peter and John & Peter [2007] FamCA 655 paragraphs 47 and 48 and Dobbs & Brayson (2007) FLC 93-346 paragraphs 34 to 42 inclusive).

4. Division 13A of Part VII the Act continues with certain sections dealing with the Court’s power to vary parenting orders, the powers of the Court if contravention is alleged but not established, the powers of the Court if contravention is established but reasonable excuse for contravention is established.  The sub-divisions of that division also make provision for the Court’s power when contravention without reasonable excuse is established with separate sections relating to serious disregard of the obligations under the primary order and matters where there has previously been a contravention of the primary order.

5. Unless the Court decides to impose penalties referred to in section 70NAF(3) the Court is required to find that the applicant has established that the respondent contravened the order on the balance of probabilities.  The reasonable excuse needs to be established on the balance of probabilities.

Contravention on the 25 January 2009:  “The father without reasonable excuse refused to return the child to his mother” (Paragraph 7 of the contravention application).

1. There was no issue before the Court that the father was aware of the order of the 26 August 2008.  He appeared in person before Federal Magistrate Mead on that date.  Paragraph 3 of the orders specifically refers to the ‘the father’s time with [the child] conclude at 2pm on Sunday 25 January 2009”.

2. The father admitted that the child was not returned to the mother at that time.  In paragraph 2 of the father’s affidavit filed on the 12 March 2009 (document 34) the father says:

   “As per the mother, [Ms Botsman’s] affidavit paragraph 1, I admit keeping [the child] for longer than the required period.  On Friday the 24^th January I placed an urgent application before the Court to obtain full custody of [the child].  I have serious and immediate concerns about [the child’s] welfare whilst in the care of his mother.  I believe that my concerns were reasonable and contravened the order for the welfare of [the child].”

3. The father returned the child to the mother at 7.00 pm on the 26 January 2009. 

4. The mother asserts in paragraphs 3 and 4 of her affidavit filed on the 27 February 2009 (document 32):

   “3.     He advised me he would not hand [the child] back to me until I signed a new Consent Order that night.  I refused to do so and advised him that I would be seeking an Emergency Recovery Order through the Federal Police on the 27^th January 2009.

   4.     I can supply the court with a DVD recording of a phone message [the father] left on my phone on the 26^th of January 2009 stating he would hold [the child] until I signed a new court order.  I advised him via text that he was holding [the child] to ‘ransom’ to get what he wanted (See Appendix 3).”

5. The affidavit of the father states in paragraph 6 and 7:

   “6.     As per paragraph 3.  I have a tape recording of the mother agreeing to sign consent orders which I asked her to sign in order for me to return [the child] to her care.  I requested in a phone conversation on the 25^th of January that [the mother] needs to address the issues with regards to [the child’s] attire, bowel problem, and that [the child] would be looked after in a more appropriate manner by the mother.  The mother agreed to sign the consent order and I agreed to return [the child] to her care. 

   7.   All of my concerns and issues are currently before the court in an application for a final order.”

6. (The father is referring to his application for final orders which were the subject of preliminary argument as to the dismissal of those proceedings sought by the wife on the basis that there were not sufficient matters raised to warrant further renewed litigation concerning the child’s welfare).

7. The mother’s affidavit filed on the 27 February 2009 and the father’s responding affidavit filed on the 12 March 2009 (documents 32 and 34 respectively) set out the detailed history of the basis for the mother’s allegations in relation to the contraventions and the father’s response. 

8. In her affidavit filed in support of the contravention application the mother sets out in paragraph 13 particulars of a telephone conversation she instigated with the father on the 22 January 2009.  The telephone call is confirmed by Exhibit 1, being the telephone records of the mother.  I accept the evidence of the mother that she telephoned the father and that there was a 22 minute discussion about the child, who had been in the care of the father for a period of holiday time with him.

9. Appendix 9 to the affidavit of the mother filed on 27 February 2009 is a copy of an email from the father to the mother sent on Friday 23 January 2009 at 8.03 pm.  It says:

   “Subject:  [The child]

   [Mother],

   I have recently  and in the past raised many issues regarding the health and welfare of [the child].  These issues have been increasing over time and you have failed to take any action in regards to any of these concerns.  I have serious concerns that [the child’s] physical and psychological development are being detrimentally affected by your lack of parenting.

   I have attempted on numerous occasions to address these issues with you but you have failed to make an adequate effort to deal with them.

   My concerns include issues with [the child’s] health, the movement of him from school to school, your living arrangements, [the child’s] dirty and soiled clothing and inadequate nutrition, [the child’s] personal hygiene, your lack of adequate supervision of [the child], and you allowing a stranger to reside in your home with [the child].

   Your behaviour has put [the child] at an unacceptable risk, and I am in the process of lodging an application to have your time with [the child] suspended until such time that I am satisfied that [the child] is safe in your care.

   Until such time [the child] will not be handed over to you.  I will organise schooling for him until this issue is dealt with.

   I will forward you all the relevant court documents and a time and date for when it has been listed for hearing.

   Regards,

   [The father].”

10. Apart from sending the email the father sent text messages to the mother on 23 January 2009 being Appendix 10, 11 and 12 of the mother’s affidavit.

11. The mother points out that the text messages were sent after she had telephoned the husband to discuss his concerns about the child and talked to him for over 20 minutes the night before (22 January 2009). 

12. The child was due to be returned to the mother on Sunday 25 January 2009 at 2.00 pm. 

13. Exhibit 2 is a transcript of a voice message received by the mother on Monday 26 January 2009 at 3.25 pm from the father:

    “Female automated message,

    “Saved voice messages,  Voice messages rec 3.25 pm on Monday on the 26^th of January”

    [The father] says,

    ‘Yeah it’s me again, I’m not convinced that if you don’t sign a consent order that things are going to change, so I need for you to acknowledge that there’s a problem, or acknowledge my concerns, where you sign a consent order with the condition to make sure that [the child’s] looked after, and then we can arrange change over, but until then if you are going to be pig headed and not sign anything or make it difficult well then there is nothing to alleviate my concerns so there is no way that I am handing him back to you.

    So you need to let me know what you want to do, the balls [sic] in your court, I’m happy to do a consent order with those conditions in it but if your [sic] not happy to do a consent order well then we are just going to have to wait until the ahh the court makes a decision, let me know tonight’”

14. Appendix 3 of the mother’s affidavit is a message from the mother to the father on 26 January 2009 at 3.31 pm:

    “Ur holding [the child] to ransom while u try to get the court order changed because it didn’t go ur way in court?  How will that look for u, using him like that?  I am not stupid and neither will the court be.  I am not listening to ur voice messages and am turning my phone off.  If u want to try again and change the order do it properly thru the court!  Not hold [the child] to get what u want!  My phone is off after this.”

15. Exhibit 2 also includes:

    “Female automated message, “Voice message received at 4.16 pm on Monday the 26^th of January”

    [The father] says,

    ‘Yeah I need to know whether you ahh received my text message and whether your going to umm be there to pick him up tonight I need you to let me know otherwise I wont [sic] bother coming down, can you let me know ASAP, thank you’.”

16. Appendix 2 of the mother’s affidavit is a message from the father to the mother on 26 January 2009 at 5.47 pm:

    “Put in as many breaches as you like, I don’t care.  [The child’s] welfare is my only concern.  Will be there at 7.”

17. The child was returned to the mother on 26 January 2009 at 7.00 pm.

18. When the father was given an opportunity to cross-examine the mother he asked only a few questions.  The mother agreed during cross-examination that the father had told her that he was not returning the child because he said he had concerns about the child’s welfare. 

19. The mother was not cross-examined about most of the matters in her affidavit filed on 27 February 2009.  In that affidavit the mother addresses the concerns raised by the father on 22 January 2009 in some detail.

20. The father gave evidence on 28 August 2009.  He said in his oral evidence that he admitted that he kept the child overnight.  He said that he had raised concerns with the mother “for about a week” and that these were concerns about the child’s welfare including who was supervising him, that the child had been left with others, that he had medical problems and that he had toileting issues.  He also referred to his concerns about a possible tenant moving into the mother’s home and there being a proposal to lock the child’s door.  He said he was concerned that the mother was not addressing “his issues”.  During his evidence-in-chief he said that the reason he returned the child the next day was that the mother gave me a “verbal undertaking to address these issues”.

1. During cross-examination by counsel for the mother the father admitted sending the email to the mother about his intention not to return the child.  He admitted that the telephone conversation had occurred on 22 January 2009. 

2. When asked if the mother had instigated the telephone call to him he said he could not remember.  He agreed that the matters referred to in the mother’s affidavit had been discussed during that conversation and that the explanations given for the behaviour in the mother’s affidavit were given by her to him during this conversation.

3. The father admitted that he had not raised other concerns with the mother during that telephone conversation.  The father dismissed the mother’s efforts in discussing the matters with him in the telephone conversation of 22 January 2009 as “merely a token effort” on her part.

4. During the cross-examination the father acknowledged that his message to the mother on 26 January 2009 stipulated that he would not return the child to the mother unless she signed a consent order which he sought which contained several conditions.

5. By the mother’s evidence and the father’s admission it is established that the father failed to return the child to the mother at 2.00 pm on Sunday 25 January 2009.  This is established beyond reasonable doubt.

6. The father maintained that he did not return the child at the time required because he had “serious and immediate concerns about [the child’s] welfare whilst in the care of his mother.”  (See paragraph 2 of the father’s affidavit filed on the 12 March 2009).

7. The father did however return the child to the mother at 7.00 pm on the 26 January 2009.

8. His alleged “serious and immediate concerns” must be seen in this context.

9. I also consider the evidence of both the mother and father of the messages which passed between them, in particular, the email from the father to the mother sent on Friday 23 January 2009 at 8.03 pm.  On the mother’s evidence the father informed her that he would hold the child until she signed a new “Court” order.

10. The concerns raised by the father, which he asserts provided him with a reasonable excuse, are described by him in his affidavit and summarised by him in the email to the mother sent on Friday 23 January 2009.

11. I accept the evidence of the mother that a short time before the 25 January 2009, namely on the 22 January 2009 she had a long conversation with the father in which she discussed with the father his concerns about the child.

12. The affidavit of the mother filed by her on the 27 February 2009 discusses the concerns raised by the father in some detail.  I accept the evidence of the mother.

13. Considering all of the evidence of the mother and father and in particular the detailed evidence of the mother in response to the allegations made by the father, I am not satisfied on the balance of probabilities that the father has established any of the specific grounds for reasonable excuse contained in section 70NAE of the Family Law Act. 

14. In particular, the father has not established that he did not understand the obligations imposed by the order, nor that he ought to be excused in respect of that contravention.  Similarly, the father has not established on the balance of probabilities that he believed on reasonable grounds that the actions constituting the contravention (the failure to return the child to the mother as ordered) were necessary to protect the health or safety of any person, and in particular the child or that the time that the child was retained by him was “necessary to protect the health or safety of any person including [the child]”.

15. The specific provisions of section 70NAE(1) indicate that a reasonable excuse is not limited to those specific circumstances set out in the other sub-sections (2), (4), (5), (6) and (7) of that section.

16. The evidence before me does not establish any other reasonable excuse for failing to return the child at the ordered time.

17. I am therefore satisfied that it has been established on the necessary basis that the father intentionally failed to comply with the order for the return of the child and that the father has not established a reasonable excuse for contravening the order.

Contraventions on the 1 February 2009 and 15 February 2009 in relation to the “reasonable direction” of the Hindmarsh Children’s Contact Service.

1. At paragraph 29, 30 and 31 of the mother’s affidavit filed on the 27 February 2009 (document 32) the mother states:

   “29.  The [M] Children’s Contact Service has a strict policy that the picking up parent gets to the centre fifteen minutes (15) before pick up and after the dropping off parent has delivered the child they must in turn wait fifteen (15) minutes.  On the 1^st of February 2009 [the father] was due to drop [the child] back to me via the [M] Children’s Contact service.  I arrived 25 minute early and waited until 5pm, [the child] did not arrive.  At about 5.15 pm I was told [the child] had just arrived, the staff walked him through the corridor to me but then advised that I would  have to wait a further 15 minutes as [the father] had refused to wait his 15 minutes.

   30.    She told me that she had told [the father] that he had to wait and he waved her away, dismissing her and then walked out.  I then waiting another 15 minutes before leaving with [the child].

   31.    On the 15^th of February 2009 the same change over was to occur, [the child] arrived to me at 5pm, with the staff given [sic] me a note from [the father], I politely asked her to give it back to him, as I am no longer interested [sic] communicating with him.”

2. The mother relied on the evidence of two workers from the M Children’s Contact service, Ms S and Ms C. The report of the M Children’s Contact service deals with the evidence of 1 February 2009 and 15 February 2009 as follows:

   “01.02.09

   Contact took place with no sign of distress from the child and with appropriate behaviour from parents in farewelling and greeting the child.

   [The father] arrived 10 minutes late for the 5pm changeover.  The [Contact Centre] worker advised [the father] that he was late and [the father] became aggressive stating, ‘it’s no big deal’.  The [Contact Centre] worker explained that there are policies in place for a reason.  [The father] repeated, ‘it’s no big deal’.  [The child] left with the [Contact Centre] supervisor and [the father] began to walk out the door.  The [Contact Centre] worker questioned where he was going and advised he needed to wait the required 15 minutes.  [The father] stated that he had other children in the car and would not wait.  The [Contact Centre] worker called the [Contact Centre] supervisor and [the child] back.  The [Contact Centre] supervisor went out to the carpark however [the father] was already driving off.  [The mother] was advised and she agreed to wait an extra 15 minutes to ensure she could leave safely.

   15.02.09

   Contact took place with no sign of distress from the child and with appropriate behaviour from parents in farewelling and greeting children.

   [The father] wrote a message in the communication book for [the mother].  The [Contact Centre] worker handed the communication book to [the mother] without looking at it. [The mother] requested it be returned to [the father].

   [The father] approached the door to leave when [the child] left.  The [Contact Centre] worker spoke to [the father] explaining that he needed to wait the required 15 minutes.  [The father] informed the [Contact Centre] worker that he had told the [Contact Centre] Coordinator in the initial interview that he would not wait as he had two other children in the car.  The [Contact Centre] worker suggested that he bring the children in as other families do or the other option was to sign a waiver form, but the other party would also have to agree to sign it.  [The father] signed the waiver form although he said that he was sure the other party would not sign it.  The [Contact Centre] worker informed [the father] that she would need to document what had happened.”

3. Ms S’s evidence was that on the 1 February 2009 she was the staff member at the M Children’s Contact service and completed the changeover contact observation record (Exhibit 3).  Part of the notes recorded by Ms S states:

   “… [Ms C] took [the child] down, [the father] began to walk out the door, worker [Ms S] questioned where he was going and advised he needed to wait 15 minutes, he stated that he has other children in the car …”

4. Ms S confirmed in her oral evidence that this took place on the 1 February 2009.  She confirmed that the father did not wait 15 minutes.  She also confirmed that the requirement to wait 15 minutes after the child was dropped off is part of the service agreement which had been provided to the father at the time he commenced to use the contact centre for handover.

5. When cross-examined by the father there was a discussion about whether the worker had accurately recorded whether he was 10 minutes late or 12 minutes.  Ms S agreed that her notes were not exact as to the period which he was late.  Ms S confirmed that there were no other notes recording the time the father actually left on that occasion however during vigorous cross-examination she continued that the father walked out as soon as the other worker took the child from the room.

6. Ms C also gave evidence about the events of the 1 February 2009 when she was the supervisor.  She had a conversation with the father on the 1 February 2009 when she discussed with him that he had arrived late.  After the conversation with the father she started to take the child to the other area of the contact centre but was called back.  As a result she handed the child to the other worker and went to find the father who had gone out to the carpark.  She saw the father driving off.

7. Exhibit 5 are the handwritten notes made by Ms C on the 1 February 2009 which are consistent with her oral evidence. 

8. Ms C also gave evidence about the 15 February 2009 when she was present at the handover centre.  Ms C confirmed that the father was well aware of the requirement to wait 15 minutes after delivering the child to the contact service.  She suggested that he bring the other children in from the car as some other families do.  The father signed a waiver which would have discharged the obligation to wait 15 minutes if the mother had agreed.  She did not.  Ms C confirmed that on this occasion the father left before the 15 minutes had elapsed.  When asked “how much prior?”  She replied, “after about eight minutes, but still earlier than the 15 minutes”.

9. Exhibit 6 are the notes of Ms C for 15 February 2009.  These notes are consistent with her oral evidence.

10. Ms C also produced Exhibit 7 which is the Service Agreement for Changeover and Supervised Contact for the Children’s Contact Service.  Part of the service agreement includes in paragraph 1:

    “All parties understand and agree to the terms and conditions outlined below.”

11. Paragraph 3 of the Agreement is headed “Scheduled arrival/departure times” states:

    “.      The ‘drop-off’ party bringing the child/ren to the CCS must arrive at the scheduled changeover time and then needs to wait 15 minutes after the child/ren has left.  At the Coordinator’s discretion the waiting period may be waived if both parties sign a waiver form.

    .       The ‘pick-up’ party collecting the child/ren will arrive at the CCS 15 minutes before the scheduled changeover time and then leave without delay with the children.”

12. Exhibit 7 was signed by the father on 24 October 2008.

13. When Ms C was cross-examined by the father her evidence was consistent with her evidence-in-chief and her notes.  She was an impressive witness.  Under vigorous cross-examination she admitted that she had not made specific notes of the exact times that activities took place but gave a reasonable, practical basis upon which she had estimated the time.  She denied any suggestion that she made an assumption or guess about his failure to wait the 15 minutes.

14. The father gave his oral evidence on the 28 August 2009.  The father’s affidavit filed on the 12 March 2009 (document 34) states at paragraph 36:

    “36.  As per paragraph 28 I say that I did do all such things as necessary to apply for acceptance with [M] Children’s Contact Service and complied with all reasonable directions within the seven days as required by court.  I informed [Ms B] at the commencement of my service that I was not able to wait the 15 minutes required by the service as I had to return to [another suburb] for the handover of my wife’s son at 7pm.  Attached marked Appendix 2 is a copy of a letter I have forwarded to [Ms B] in regards to this report.”

15. In the letter to the Coordinator at the M Children’s Contact Service dated the 1 March 2009 (which is Appendix 2 to the father’s affidavit), he sets out certain allegations and makes comments.  On the second page of that document at paragraph three it states:

    “As I have stated before, I will not wait for the 15 minutes your organisation has requested, and I have and will now provide further adequate reasoning for this. …”

16. The letter then goes on to give his reasons including that he does not wish to leave his present wife in the vehicle in the car park when the mother is in the vicinity.  He also refers to his other children who are in the car at the time and the inconvenience he would suffer if he were required to wait for 15 minutes.

17. Paragraph 37 of the father’s affidavit continues:

    “As per paragraph 29 I have never waited the 15 minutes at the contact centre, since the commencement of my time, and am unsure why the centre has only started recording this over the past two changeovers. …”

18. At the end of paragraph 39 the father states:

    “I find that it is totally unreasonable for the centre and the mother to expect me and my family to wait 15 minutes, and for this reason I have never waited the 15 minutes.”

19. The father goes on to state at paragraphs 40 and 41:

    “40.  I therefore do not believe that I have contravened the order as I did everything that was required within the 7 days, as per the court order, including alerting the centre to the fact that I did not believe the 15 minutes request was reasonable and that I would not agree to it.

    41.    The dates of the change overs commenced on the 9^th of November 2008 which falls outside of the seven days from the making of the order so I believe they cannot be classed as contraventions.”

20. When giving his oral evidence on the 28 August 2009 the father repeated that his interpretation of the order of the 26 August 2008 paragraph 1 was that the seven day time limit applied to both the requirement to do “all such things as are necessary to apply for acceptance in to the [M] Children’s Contact Service handover program” and to the requirement to “comply with all reasonable direction of the service as regards handover regulations”.

21. The father specifically said that he alleged that the requirement to comply with reasonable direction of the service only lasted for seven days from the date of the order.

22. Paragraph 1 of the order of the 26 August 2008 is all in one sentence.  However, the normal everyday clear interpretation of the sentence is that the reference to seven working days applies only to the parties doing things necessary to apply for acceptance.  The seven day limit does not apply to the requirement to “comply with all reasonable direction of the service as regards handover regulations”.  An interpretation suggesting otherwise would be nonsensical.

23. The evidence given by the father in his affidavit, his oral evidence and in particular during cross-examination does not establish that the father did not understand the obligations imposed by the order.  I do not accept that the father genuinely believed that the requirement to comply with all reasonable directions only lasted for seven days after the order of the 26 August 2008.

24. The father’s evidence also maintained that the direction of the service about waiting 15 minutes was not a reasonable direction.  I accept the father indicated at his first interview at the Children’s Contact Service that he was not happy with the condition that he wait 15 minutes, but I also accept his evidence and that of the Children’s Contact Service employees that he signed the agreement which specifically required him to wait 15 minutes.

25. The father maintained that it was not a reasonable condition because there was no conflict or safety issues between the mother and the father and therefore the requirement was not necessary.  He also argued that it was inconvenient for him to wait the 15 minutes because of the obligation he had to his present wife and other children waiting in the car outside.

26. During cross-examination the father was referred to the reasons for judgment of Federal Magistrate Mead when the orders of 26 August 2008 were made which includes in the discussion about the place and method of handover at paragraph 14:

    “One of the features of this matter which has now been going on for some considerable period of time is the very, very significant animosity between the parties.”

27. During his cross-examination the father maintained that he thought the condition was unreasonable and unnecessary.

28. While on the one hand he referred to there being no conflict or safety issues in this matter, on the other hand he asserted that there were safety issues for his present wife alleging poor behaviour by the mother towards her.

29. During his cross-examination the father was evasive.  He often replied “I don’t remember”.  He described the requirement to wait 15 minutes as a “ridiculous procedural condition”.

30. Taking into account the role of the Children’s Contact Service in handovers and the particular background circumstances of this family (the history and ongoing conflict) I am satisfied that the condition that the father wait 15 minutes after delivering the child to the Children’s Contact Service was a reasonable direction of the service.

31. I am satisfied that it has been established on the balance of probabilities that on the 1 February 2009 and 15 February 2009 the father failed to comply with paragraph 1 of the order of 26 August 2008 and did so intentionally.

32. It is also established on the balance of probabilities that he made no reasonable attempt to comply with the order which required him to comply with all reasonable directions of the service.

33. The father also asserted that he had the obligation to provide care and welfare for three other small children and his need to leave immediately because of his concerns about his present wife.

34. When asked whether he would in future wait the 15 minutes required by the Children’s Contact Service the father replied that he may or may not.  He said that his children’s welfare and his personal circumstances were more important to him than “a ridiculous procedural condition”.

35. The father’s evidence indicates he found the condition to wait 15 minutes inconvenient but does not establish a reasonable excuse.

36. None of the father’s evidence establishes on the balance of probabilities that he had a reasonable excuse for failing to comply with the reasonable direction of the Children’s Contact Service.

37. The evidence of the father, particularly in cross-examination, establishes on the balance of probabilities that the father has shown a serious disregard for the obligations imposed upon him by paragraph 1 of the order of 26 August 2008.

Summary and Conclusions

1. Carefully weighing all of the evidence before the Court on this application it has been established that the father contravened the order of the 26 August 2008 paragraph 3 on the 25 January 2009 when he failed to return the child to the mother on that date and that he contravened the order without reasonable excuse.

2. The Court is also satisfied that on 1 February 2009 and 15 February 2009 the father contravened paragraph 1 of the order of 26 August 2008 when without reasonable excuse he refused to comply with the reasonable direction of the Children’s Contact Service, when he failed on those occasions to wait the 15 minutes specified in the Service Agreement with the Children’s Contact Service.

1. The Court is satisfied that in relation to the contraventions on 1 February 2009 and 15 February 2009 the father behaved in a way that showed a serious disregard for his obligations under the order.

2. Counsel for the mother has made brief submissions about penalty.  However, it is appropriate to hear further submissions in relation to the orders which should be made following the findings about the contraventions after both parties have had an opportunity to consider these reasons and the specific provisions of the Family Law Act which apply to the types of contravention found proved.

I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe

Associate: 

Date: 16 October 2009