Carrington and Gunby
[2020] FamCAFC 117
•15 May 2020
FAMILY COURT OF AUSTRALIA
| CARRINGTON & GUNBY | [2020] FamCAFC 117 |
| FAMILY LAW – APPEAL – PARENTING – Contravention of parenting orders – Whether the father demonstrated that he had a reasonable excuse for retaining the child – Whether the father believed on reasonable grounds that the retention of the child was necessary to protect the safety of the child – Whether the father’s retention of the child was not longer than necessary to protect the safety of the child – Consideration of the evidentiary value of a Notice of Child Abuse, Family Violence, or Risk of Family Violence – Where there was no evidence as to a risk of harm to the child that reasonably justified the father’s continued retention of the child – No error by the primary judge – Appeal dismissed. |
| Family Law Act 1975 (Cth) Div 13A, ss 69ZT, 70NAE, 70NFA |
| De Winter v De Winter (1979) 23 ALR 211 Elspeth v Peter (2007) 212 FLR 214; [2007] FamCA 655 Markes v Markes(No 2) (2019) 59 Fam LR 558; [2019] FamCAFC 96 |
| APPELLANT: | Mr Carrington |
| RESPONDENT: | Ms Gunby |
| FILE NUMBER: | ADC | 4119 | of | 2008 |
| APPEAL NUMBER: | SOA | 61 | of | 2019 |
| DATE DELIVERED: | 15 May 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland, Aldridge & Kent JJ |
| HEARING DATE: | 4 May 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 September 2019 |
| LOWER COURT MNC: | [2019] FamCA 831 |
REPRESENTATION
| THE APPELLANT: | In person (via telephone) |
| THE RESPONDENT: | In person (via telephone) |
Orders
The appeal be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carrington & Gunby has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 61 of 2019
File Number: ADC 4119 of 2008
| Mr Carrington |
Appellant
And
| Ms Gunby |
Respondent
REASONS FOR JUDGMENT
By way of a Notice of Appeal filed on 24 October 2019, Mr Carrington (“the father”) appeals from a finding made by a judge of the Family Court of Australia that he contravened parenting orders made on 4 September 2013, by failing to return B (“the child”) who was born in 2008 to Ms Gunby (“the mother”) on 30 June 2019.
On 4 September 2013, a suite of final parenting orders were made by consent. The mother and the father were to have equal shared parental responsibility for the child who was to live with the mother. Relevantly, the child was to spend time with the father each alternate weekend from 6.00 pm on Friday until 6.00 pm on Sunday (Order 3(c)(i)).
On Sunday, 30 June 2019, the father was obliged by the orders to return the child to the mother by 6.00 pm. It was not controversial that this did not occur. The child remained with the father, and on 27 September 2019, when the mother’s contravention application filed on 3 July 2019 was heard by the primary judge, the child still had not been returned to the mother.
The father’s case was that he had a reasonable excuse for not complying with the obligation to return the child to the mother because the child was at an unacceptable risk of harm in the mother’s care. The father alleged that the mother’s partner had assaulted the child by throwing him onto the kitchen floor and had verbally assaulted and belittled the child.
On 27 September 2019, the primary judge found the father’s contravention to have been established. The father’s contention that he had a reasonable excuse for not returning the child to the mother was not accepted.
The father appeals from those findings and the orders made on 27 September 2019, which required him to enter into a Bond for a period of 12 months which was conditional upon him being of good behaviour and complying with all current and future parenting orders during that time. The father also sought leave to appeal but leave is not required (Markes v Markes(No 2) (2019) 59 Fam LR 558 at [3]).
Essentially, the father asserts that the primary judge erred in finding that “[t]he father has not presented evidence at all which would enable the Court to find that the father has breached the order but has a reasonable excuse for doing so” (at [32]) (Grounds 1 and 2). The father also contends that in determining that the contravention was a more serious breach of the order (s 70NFA(3) of the Family Law Act 1975 (Cth) (“the Act”)), his Honour wrongly gave more weight to the child being removed from his school by the father, than to the child’s complaints as to a risk of harm (Grounds 4 and 5 as explained in oral submissions at the appeal hearing).
Ground 3 does not identify any appealable error and we will not refer to it further.
It is also necessary to record that although the father was directed to obtain and file a digital copy of the portions of the transcript of the hearing before the primary judge that he deemed relevant, he did not do so. Rather, he informed the Appeals Registrar that he was no longer relying on the transcript. Thus, the appeal was heard without the transcript of the proceedings before the primary judge. The effect of this is that we are limited to the primary judge’s description of what occurred at the hearing as set out in his Honour’s reasons for judgment.
Did the father demonstrate that he had a reasonable excuse for retaining the child? (Grounds 1 and 2)
The father accepted that he had not returned the child as was required by the orders. He thus bore the burden of establishing that he had a reasonable excuse for doing so. Relevantly, s 70NAE(4) of the Act 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 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).
(Emphasis in original)
This sub-section required the father to prove that he believed, on reasonable grounds, that his actions were necessary to protect the safety of the child and to prove that the retention of the child was not longer than was necessary to protect the safety of the child.
The father sought to do that at the hearing before the primary judge in four ways, through:
·cross-examination of the mother on her evidence;
·the father’s own evidence in an affidavit filed on 1 August 2019;
·reliance on a Notice of Child Abuse, Family Violence, or Risk of Family Violence (“the Notice”) filed by the father on 1 August 2019; and
·reliance on a Child Inclusive Conference Memorandum dated 7 August 2019 (“the Memorandum”).
The primary judge recorded that the mother raised with the Court that the South Australia Police had investigated a complaint about risk to the child in the mother’s home, and to the best of the mother’s knowledge, no charges had been laid and there had been no further Police involvement or investigation (at [10]). None of that evidence appears in her affidavit and we assume that it was given orally at the hearing. The mother was cross-examined by the father on her affidavits filed on 3 July 2019 and 5 September 2019. The father did not seek to rely on the mother’s oral evidence at the appeal hearing.
His Honour described the next phase of the proceedings in the following terms:
11.The father took the opportunity to cross-examine the mother but it was limited and did not press the mother in the sense of any allegation or assertion of neglect that he was making. The mother was released from the witness box. The father then gave evidence. Although not obliged to file an affidavit the father did so on 1 August 2019. The matters raised are confined to two paragraphs, which I repeat:-
(1)Child, [the child], has reported to [South Australia Police] physical and psychological abuse … by mother and [the mother’s partner].
(2)Child, [the child], has reported to [South Australia Police] mother’s coercive techniques to silence the child about abuse, causing ongoing stress and extreme anxiety to the child.
12.It is reasonable to assume from the brief matters raised by the father that the issue that provides the foundation for his assertion that he breached the order, but with reasonable excuse, relates potentially to an allegation that the child is at risk in the mother’s home and as a consequence of that risk, there is some investigation or activity by [South Australia Police] which would be relevant to these proceedings.
13.The father was urged by the Court to give careful consideration to those matters and to use the opportunity that he now had, namely, in examination-in-chief to expand upon those matters and provide the evidence from whatever source he considered was necessary to flesh out the matters he says the Court needs to bring to account in the determination of the contravention. The high watermark of the father’s evidence was not evidence from his own knowledge. He made no observations of activities or conduct in the mother’s household. He had no other evidence other than evidence from the child as to what had occurred.
(As per the original)
Clearly, the primary judge had some difficulty with the limited material in the father’s affidavit filed on 1 August 2019 and invited the father to expand upon it in his evidence in chief and particularly to provide “evidence from his own knowledge” (at [13]). The primary judge pointed out that “even if it be the case that the child has said certain things to the father, the father was not able to report or repeat those matters with any detail that could be the subject of a considered response, an objection by the mother, or an acceptance by her” (at [14]). The father could have, but did not, set out any complaints made by the child to him.
Ultimately, the finding was that the father’s evidence “did not proceed beyond the general observation and assertion that the child was at risk” (at [14]). We infer then, that to the extent that the father gave oral evidence in chief, it did not advance his case any further.
The father, nonetheless, submits that his affidavit filed on 1 August 2019, the Notice filed on 1 August 2019 and the Memorandum dated 7 August 2019 established a reasonable excuse and that the primary judge erred by making a finding to the contrary.
The Notice filed on 1 August 2019
It is convenient to start with the Notice filed by the father on 1 August 2019 which identified the acts or omissions alleged to constitute the abuse of the child as:
1.[The child], has reported to [South Australia Police] physical and psychological abuse. Physical assault by [the mother’s partner] with ongoing aggression causing extreme distress for the child. Child reports being thrown onto hard tiled Kitchen [sic] floor in the week following child’s 11th birthday.
2.Daily jabbing and shouting and yelling at the child by [the mother’s partner]
3.Mother is aware of ongoing abuse and child reports that the mother instructs him not to tell anybody, especially his father, using
co-ercion [sic] and threats.
4.Child [South Australia Police] interview Report … [in] JUNE 2019 and [in] JULY 2019
(As per the original)
The facts alleged to identify a risk of abuse were:
1.[The child], has reported to [South Australia Police] that mother leaves child alone with abuser [the mother’s partner] at least every school day, mornings and afternoons. Abuser lives with mother …
2.Mother allowing abuse and instructing child to keep quiet about it. Serious parental failure
3.Retaliation risk due to child breaking silence.
(As per the original)
As the child’s birthday occurred in early June 2019, the alleged incident which involved the child being thrown to the floor must have occurred between that date and mid June 2019. The Police became involved shortly thereafter.
The primary judge placed little weight on the Notice filed by the father on 1 August 2019 saying that it “is not evidence” (at [15]). Importantly, his Honour went on to record the following:
15.… When given an opportunity to expand upon those matters in evidence, the father declined to do so. The reports suggest that [South Australia Police] may have conducted an interview. No evidence was presented in that regard. The report suggested that the police have had some other involvement or engagement and may have taken a statement and/or sought evidence from other parties other than the child. The father did not present that evidence.
The father did not take up the offer to give evidence as to his belief on 30 June 2019 that he needed to act to protect the child’s safety and how he arrived at that belief. For example, his belief could have been based on things that the child told him or the Police but, if so, what were those things? The father did not say.
A Notice of Child Abuse, Family Violence, or Risk of Family Violence makes allegations which puts the Court and anyone else involved in the proceedings on notice of the issues as to risk that are to be raised. It is not evidence of the matters that are said to constitute the risk. At best, it is evidence of the allegations themselves, which must still be established to the satisfaction of the Court by sufficient admissible evidence.
The father’s affidavit filed on 1 August 2019
The father filed an affidavit on 1 August 2019. It said, in its entirety, to repeat its contents:
1.[The child], has reported to [South Australia Police] physical and psychological abuse … by mother and [the mother’s partner].
2.[The child], has reported to [South Australia Police] mother’s coercive techniques to silence the child about abuse, causing ongoing stress and extreme anxiety to the child.
These paragraphs of the father’s affidavit do not identify any acts of harm alleged to have been made against the child, but merely identify that the child has reported things to the Police which the father considered constituted physical and psychological abuse. No particular acts are identified.
The father did not, contrary to the suggestions of the primary judge, seek to obtain any material from the Police that might particularise the allegations or to prove what the child actually told them.
The father’s affidavit consists only of generalised allegations and is not evidence of any particular acts by the mother or the mother’s partner. It is not capable of establishing a risk of harm to the child.
The Memorandum dated 7 August 2019
This document was the main focus of the father’s submissions, which were to the effect that the primary judge erred by failing to have regard to it.
Interviews for the Child Inclusive Conference were conducted by a Family Consultant on 7 August 2019, with the Memorandum being filed later that day. Presumably, it was available to the mother and the father shortly thereafter but neither sought to address it in any further written evidence.
At page 2, it recorded that the child referred to the mother’s partner and said that:
… “He’s threatened me and grabs me…he’s pushed me on the kitchen floor… he was shouting at me…swearing…he gets angry at little things… if I get something wrong when I’m trying to help he gets mad” …
This is evidence that these events occurred (see s 69ZT of the Act, noting that no order had been made that the hearsay rule would apply).
The Family Consultant recorded at page 3 that both the mother and the father “seemed open” to the child returning to the mother on 11 August 2019 and to an injunction being made restraining the mother from leaving the child alone with her partner. That is hardly consistent with the father holding the view that there was such a risk of harm to the child that Court orders should not be complied with and that the child should continue to be retained by him indefinitely without being able to see the mother.
Finally, the Family Consultant did not suggest that any risk of harm to the child existed that could not be ameliorated by the proposed injunction, but did record that the child had concerns saying:
·[The child] has always lived in his mother’s primary care, and it would appear from disclosures by [the child] today, that [the child] has always lived in a climate of fear mongering and negativity about his father.
...
·From [the child’s] reports, his lived experience, all of his life, has been that the mother has not fostered or supported his relationship with his father, nor protected him from maltreatment by her partner, such that [the child] has now lost all confidence in his relationship with her, “it feels like my heart is stiff”.
(Child Inclusive Conference Memorandum dated 7 August 2019, p.3-4)
We accept that the primary judge does not expressly refer to the Memorandum but it seems likely that it had been read by his Honour. This is because his Honour’s reasons for judgment contain a reference to a particular school which is identified only in the Memorandum and nowhere else in the evidence. The mother accepts that the primary judge must have considered it.
It is not entirely clear, however, whether it was relied upon by the father at the hearing before the primary judge because we do not have the transcript of the proceedings. We shall proceed, however, on the basis that his Honour did have regard to it.
Self-evidently, the Memorandum itself could not be a justification for the father’s retention of the child on 30 June 2019, as it was prepared after that time.
As we have said, the Memorandum is evidence of an assault on the child which must have occurred prior to 30 June 2019. There is, however, no evidence from the father that he was informed of the assault which led him to believe that it was necessary for him to retain the child to protect the child and to continue to retain him for an extended period.
There was other evidence to be taken into account though. There had been an investigation by the Police of allegations concerning the child, which had not resulted in any action being taken. There was also the father’s seeming agreement to return the child if an injunction was made that the child not be left alone with the mother’s partner.
However, if the father had knowledge of the assault as described in the Memorandum and gave evidence of that knowledge, assuming that evidence was accepted and that the father considered this event to be sufficient to retain the child, as it may have been, we do not see how it could justify the period for which the child was retained. The father had to establish that the period that he retained the child was not longer than was necessary to protect him (s 70NAE(4)(b) of the Act). The father had continued to retain the child up to the time of the hearing before the primary judge, despite the outcome of the Police investigation, the outcome of the Child Inclusive Conference and without bringing any application to vary the existing parenting orders.
The primary judge recognised this, saying:
17.It is reasonable to observe that the alleged breach occurred on 30 June 2019, and the mother’s Contravention Application was filed on 3 July 2019. Moreover, the father was aware that there may have been an interview with the child by the police on 29 June 2019. So much is evident from the Notice of Abuse. The Court file does not reflect an application to change, vary or suspend the parenting orders. It does not reflect a subpoena being sought in relation to [South Australia Police] records of interview, if indeed they exist. It is the position, as far as the Court file reflects, that other than the notice of alleged abuse and the father’s brief affidavit, noting ninety days have now elapsed, the father was not obliged to file any evidence in relation to his contravention, nothing further appears on the Court file.
In short, the primary judge must have considered that the Memorandum did not establish the matters that the father was required to prove to establish the defence of a reasonable excuse.
This led to the following findings:
30.No evidence supporting risk has been presented by the father. It is also not supported by any application seeking to suspend and/or vary the order. It is not a matter where the Court is able to simply accept that the father’s assertion that the child is at risk, which satisfies on the balance of probabilities the establishment of evidence that the child is at risk in the mother’s home. The second aspect is that whilst there may well be the assertion of risk, it is not simply a matter where the father is able to do nothing.
31.He is obliged under the Act to ameliorate the risk in the sense that the compliance or the non-compliance with the order is available to him, but only for so long as is necessary. The mother acted in a timely fashion in bringing her application for contravention. The father has had ample opportunity to consider how he should go forward with the matter. Whether it is a matter of application to vary, or whether he should garner the evidence necessary to support the allegation that he makes and the basis upon which he says the child is at risk, it is open to him to maintain the defence of reasonable excuse.
32.The father has not presented evidence at all which would enable the Court to find that the father has breached the order but has a reasonable excuse for doing so.
In other words, his Honour found that there was no evidence as to a risk of harm to the child that reasonably justified the continued retention of the child until the time of the hearing, or that the father believed, on reasonable grounds, that there was such a risk. We agree and no error has been identified.
Did the primary judge give more weight to the change in the child’s schooling than to the child’s allegations? (Grounds 4 and 5)
It was not controversial that when the father retained the child, the father removed the child from his school and commenced home tutoring because he was of the view that the child was being bullied at school. The father did not discuss this with the mother, who had equal shared parental responsibility for the child and who was entitled to participate in such a decision. However, this was not a subject of the contravention application and, as appears from the Memorandum, the mother and the father were agreed that when the child was to be returned to the mother (which did not happen), he would attend a different school.
The difficulty is said to have arisen during the primary judge’s consideration of whether the father’s contravention was a less or more serious one, so as to determine the path that would then be followed. Subdivision F of Div 13A of the Act deals with more serious contraventions and, in this matter, applied if the terms of s 70NFA(3) of the Act were engaged, which required that there had previously been a sanction or order in respect of a contravention or, adjourned proceedings in respect of a contravention, by the person of the primary order.
His Honour found that this was the case and said:
34.… This is also a matter where the parties have been in high conflict, but what makes the breach more egregious is that it has been ongoing now for 90 days. If this had been a matter that had been attended to promptly by the father, it may have well been the case that the Court should have considered the breach to be less serious. Despite the applicability of s 70NFA(3) I nonetheless retain the discretion to apply the provisions of sub-div E if I am satisfied that it is more appropriate for the contravention to be dealt with under sub-div E, namely, less serious breach.
There, the primary judge found that the continued breach of the order for over 90 days was sufficient to make the father’s contravention more serious. We do not see any error in that finding.
His Honour then turned to consider, whether despite that finding, the matter was more appropriately dealt with as a less serious contravention, which would invoke subdivision E of Div 13A of the Act. His Honour said, puzzlingly, with respect, that the test that “has to apply” is whether a person has “behaved in a way that showed a serious disregard” of the obligations under the order (at [36]). That is, to invoke s 70NAE(2) of the Act, which was unnecessary having regard to the finding to which we have just referred.
We accept that a trial judge should “spell out clearly what considerations enlivened” the finding of a more serious breach (Elspeth v Peter (2007) 212 FLR 214 at [50]), but his Honour did that by reference to the extended retention period.
Nonetheless, his Honour continued:
37.Demonstrably, first and foremost, the child has not attended formal school education and no evidence has been presented in respect of any application that has been made to the relevant Minister, any approvals that have been given and the circumstances and/or statement of the curriculum that has been put in place for the child’s education or the ability of those who would seek to home school the child in that regard. That is not to suggest that those things are not able to be satisfied, but it is to highlight that no evidence or attempt has been made to present those matters to the Court and whatever advantages or disadvantages may ultimately inure to the child in respect of home schooling.
38.The very admission by the father that such a dramatic step has been taken in circumstances where the mother’s consent has not been forthcoming and the current contention between the parties as to whether approvals have been given by the school or the Department of Education the curriculum and/or form advice and assistance has been given by the principal of [G Primary School] are matters that highlight the issue.
As we have said, no contravention was alleged in respect of these matters and, as such, they were not directly related to the contravention that had been alleged and found to have been established. They ought not to have been considered.
The references to the schooling came after the finding had already been made that this was a more serious breach and in the context of a consideration of whether, even so, the matter should be approached as if it were a less serious breach. Although the issue of schooling was incorrectly taken into account at this stage, it does not impact on the earlier finding which was made without regard to it. The error is not material to the outcome (De Winter v De Winter (1979) 23 ALR 211 at 217).
This ground of appeal has not been established.
Conclusion and Costs
No error by the primary judge has been identified and the appeal will be dismissed. No orders as to costs were sought.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Kent JJ) delivered on 15 May 2020.
Associate:
Date: 15 May 2020
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