CARRINGTON & GUNBY
[2013] FamCA 296
•3 May 2013
FAMILY COURT OF AUSTRALIA
| CARRINGTON & GUNBY | [2013] FamCA 296 |
| FAMILY LAW – ORDERS – contravention – where the father’s two applications for contravention orders contained a total of three counts – where one of these three counts was dismissed at an earlier hearing – where the primary order for the remaining two counts required the wife to facilitate the child spending time with the father – where the wife admits both remaining counts – consideration of whether the wife had a reasonable excuse for contravention – where the wife claims she has a reasonable excuse pursuant to s 70NAE(5) of the Family Law Act 1975 (Cth) – no reasonable excuse for contravention established. |
| Family Law Act 1975 (Cth) s 69ZT, 70NAC, 70NAE, 70NAF, 70NBA, 70NDA, 70NDB, 70NFA, 70NFB Family Law Rules 2004 (Cth) r 21.08 |
| APPLICANT: | Mr Carrington |
| RESPONDENT: | Ms Gunby |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission |
| FILE NUMBER: | ADC | 4119 | of | 2008 |
| DATE DELIVERED: | 3 May 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 6 February 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Swan |
| SOLICITOR FOR THE RESPONDENT: | Swan Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr T Stephen |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission |
Orders
The contravention applications filed by the father on 27 August 2012 and 6 November 2012 are adjourned to Wednesday 22 May 2013 at 3.30 pm before the Honourable Justice Dawe for the Court to hear further submissions from each of the parties in relation to the orders.
The question of costs of the applications are adjourned to Wednesday 22 May 2013 at 3.30 pm before the Honourable Justice Dawe.
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).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4119 of 2008
| Mr Carrington |
Applicant
And
| Ms Gunby |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment considers two applications for contravention orders filed by Mr Carrington (“the applicant”). They allege that Ms Gunby (“the respondent”) has contravened various Court orders relating to their child B, (“the child”). The child was born in June 2008 and was accordingly 4 years old at the date of the hearing.
The applicant was unrepresented at the hearing. The respondent was represented by Mr Swan on instructions from Swan Family Lawyers.
On 13 November 2012, I excused the Independent Children’s Lawyer from attendance at the hearing of the evidence for these applications for contravention orders.
At the conclusion of the hearing on 6 February 2013, and upon reserving judgment in these applications for contravention orders, I noted that the Independent Children’s Lawyers would be required to attend at the delivery of my reasons to allow me to hear his submissions before I make any orders.
The First Application for Contravention Orders
The first application for contravention orders was filed by the applicant on 27 August 2012. It lists two counts of alleged contravention.
The first count is said to have occurred on 24 August 2012 at 6.00 pm at the Suburb C Police Station. The statement of the alleged contravention is:
The mother has ignored recent court orders to resume contact with the child. The mother has again, made no contact in this regard.
In the section of the application form for contravention orders which asks for the applicant to state the paragraph number of the order that is alleged to have been contravened, the applicant has stated, “UPON NOTING: time with child will resume 24 August 2012.” This is a modified extract from the orders of FM Cole (as he then was) made on 17 August 2012. The orders of FM Cole reinstate the Consent Orders made by the parties and made on 12 October 2009.
The following Consent Orders of 12 October 2009 are relevant to this alleged contravention:
1. That all previous parenting orders made herein are discharged.
2.That the child [B] born … June 2008 shall live with the mother.
3. The child shall spend time with the father as follows:
(a)each Wednesday and each Saturday from 10.00am until 4.00pm for a period of 8 weeks;
(b)thereafter each Wednesday and each Saturday from 10.00am until 6.00pm for a period of 12 weeks;
(c)thereafter until the child turns 3 years old
(i)each alternate Wednesday and Saturday from 10.00am until 6.00pm; and
(ii)on the intervening weekend from 10.00 am Saturday until 4.00 pm Sunday;
(d)thereafter until the child turns 4 years old
(i)each alternate week from Tuesday 10.00am until Wednesday 6.00pm;
(ii)on the intervening week from Saturday 10.00am until Sunday 6.00pm;
(e)thereafter
(i)each alternate week from Tuesday 10.00am until Wednesday 6.00pm; and
(ii)on the intervening week from Friday 6.00pm until Sunday 6.00pm;
(f)and at such other times as may be agreed between the parties.
4.Notwithstanding the previous orders contained herein:-
(i) if the child is in the care of the mother on Father’s Day – the child shall spend time with the father from 10.00am until 6.00pm;
(ii) if the child is in the care of the father on Mother’s Day – the child shall spend time with the mother from 10.00am until 6.00pm;
(iii) the child shall be with the mother from 3.00pm Christmas Eve until 3.00pm Christmas Day in 2010 and each alternate year thereafter and with the father from 3.00pm Christmas Eve until 3.00pm Christmas Day in 2011 and each alternate year thereafter;
(iv) the child shall spend time with the father on the child’s birthday from 10.00am until 2.00pm PROVIDED THAT if the child is in the care of the father – then the child shall spend time with the mother from 10.00am until 2.00pm on the child’s birthday.
5.All handovers shall occur at Suburb C Police Station unless otherwise agreed.
The second count is said to have occurred on 29 June 2012 at 6.00 pm at the Suburb C Police Station. The statement of the alleged contravention is:
The mother has refused to deliver the child since 29/06/2012 to present, despite recent Court orders to resume 2009 ordered time.”
The respondent is alleged to have contravened “2009 Orders Para 3 (e)”. I take this to mean the Consent Orders made on 12 October 2009. These orders are annexed to the application for contravention orders. Paragraph 3(e) of the Consent Orders made on 12 October 2009 is set out above.
The Second Application for Contravention Orders
The second application for contravention orders was filed by the applicant on 6 November 2012. It lists one count of alleged contravention, said to have occurred on 2 November 2012 at 6.00 pm at the Suburb C Police Station. The statement of the alleged contravention is:
Mother did not attend for Handover, continuing the breaches of Court Orders 12 October 2009, 17 August 2012 and 31 October 2012 Court Orders. The mother has breached all orders continually since June 2012.
The respondent is alleged to have contravened “Paragraph 2”. It is unclear what set of orders this refers to. I conclude that it is referring to the orders made by myself on 31 October 2012 as a copy of these orders is annexed to the application for contravention orders. Paragraph 2 of my orders dated 31 October 2012 states:
2.Pending the final determination of the matter the Consent Orders dated 12 October 2009 as varied by Federal Magistrate Cole on 17 August 2012 are continued UPON NOTING the resumption on the next period the father is to spend time with the child [B] is to recommence on Friday 2 November 2012 at 6.00 pm.
The Consent Orders made on 12 October 2009 that are relevant to this alleged contravention are analogous to those listed above. The orders of FM Cole on 17 August 2012 do not vary the above listed paragraphs of the Consent Orders.
The Law
Division 13A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) contains provisions concerning applications for contravention orders. The following are the most relevant to the proceedings:
70NACMeaning 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;
70NAEMeaning of reasonable excuse for contravening an order
(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.
(3) If a Court decides that a person had a reasonable excuse for contravening an order under this Act for the reason referred to in paragraph (2)(a), it is the duty of the Court to explain to the person, in language likely to be readily understood by the person, the obligations imposed on him or her by the order and the consequences that may follow if he or she again contravenes the order.
(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).
(5) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6) 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 communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a) the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(7) A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to which section 65P applies by acting contrary to section 65P if:
(a) the respondent believed on reasonable grounds that the action constituting the contravention was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of that action, a person in whose favour the order was made was hindered in or prevented from discharging responsibilities under the order was not for longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
70NAFStandard of proof
(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:
(aa) paragraph 70NEB(1)(da); or
(ab) paragraph 70NECA(3)(a); or
(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.
70NBAVariation of parenting order
(1)A Court having jurisdiction under this Act may make an order varying a primary order if:
(a)proceedings in relation to the primary order are brought before a Court having jurisdiction under this Act; and
(b)it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i)the Court does not find that the person committed a contravention of the primary order; or
(ii)the Court finds that the person committed a contravention of the primary order.
(2)If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the Court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a)the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program;
(b)there was no post‑separation parenting program that the person who contravened the primary order could attend;
(c)because of the behaviour of the person who contravened the primary order, it was not appropriate, in the Court’s opinion, for the person to attend a post‑separation parenting program, or a part of such a program;
(d)the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3)This section does not limit the circumstances in which a Court having jurisdiction under this Act may vary a primary order.
Subdivisions C to E of Division 13A of the Act provide the orders available to the Court that can be made:
a)Where the contravention has been alleged but not established (Subdivision C);
b)Where the contravention is established but reasonable excuse for the contravention is found (Subdivision D); and
c)Where the contravention is found to have occurred without reasonable excuse which are “less serious” (Subdivisions E) or “more serious” (Subdivision F).
It became apparent at the hearing of this matter that section 69ZT of the Act was relevant as a result of certain material in the husband’s affidavit dated 8 November 2012. Section 69ZT states:
69ZT Rules of evidence not to apply unless court decides
(1) These provisions of the Evidence Act 1995 do not apply to child‑related proceedings:
(a)Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re‑examination and cross‑examination), other than sections 26, 30, 36 and 41;
Note:Section 26 is about the court’s control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b)Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c)Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5) Subsection (1) does not revive the operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
Rule 21.08 of the Family Law Rules 2004 (Cth) (“the Rules”) outlines the procedure for the hearing of an application for contravention orders:
21.08 Procedure for hearing
At the hearing of an application mentioned in item 1A, 2, 3, 4, or 5 in Table 21.1, the Court must:
(a) inform the respondent of the allegation;
(b)ask the respondent whether the respondent wishes to admit or deny the allegation;
(c) hear any evidence supporting the allegation;
(d) ask the respondent to state the response to the allegation;
(e) hear any evidence for the respondent; and
(f) determine the case.
Written Submissions on the First Application for Contravention Orders
The applicant filed an affidavit in support of the first application for contravention orders. It is a brief document. Relevantly, it states “Court Orders of 17 August 2012 noting that time with the child to resume as of 24 August 2012, have not been followed (Police Report #13/…).” The affidavit goes on to state that “this is a continuation of the 2009 orders meaning the mother has denied contact resulting in the child not spending any time with me since 20 June 2012.” The rest of the document is devoted to denigrating the respondent’s capacity as a mother and does not provide any further particulars of either alleged contravention in this count.
The respondent filed an affidavit in response to the first application for contravention orders on 18 October 2012.
Therein, the respondent admits the first count but claims she had a reasonable excuse for her contravention at paragraph 2. This excuse was said to be that, on 21 June 2012, the child had shown the mother a bruise on his hip and said, without prompting, “daddy smack, [B] cry.” The mother reported the incident to the South Australian Police and annexes an affidavit statement she gave to the Police to that effect. She also sought advice from Families SA but was unsatisfied with their suggestions. The respondent claims she did not return the child to the applicant’s care “for fear of placing [the child] in the same abusive relationship which I have endured.”
Written Submissions on the Second Application for Contravention Orders
On the same day (6 November 2012) that the applicant filed this application for contravention orders, the applicant filed an affidavit in support of an unrelated Application in a Case.
The affidavit largely concerned with matters pertaining to the Application in a Case, provides at paragraphs 3 to 5:
3.The mother has denied the father all contact and communication with the child since June 2012 to current and is blatantly ignoring all orders.
4.FMC orders dated 17th Aug 2012 note child’s time as per 2009 were to resume 24 August 2012 but the mother has ignored these orders (Police Report 13/…) and continues to deny all contact or communication.
5.FCOA orders dated 31 October 2012, Paragraph 2, Justice Dawe also notes recommencement of time as of 2 November 2012, are also currently being breached by the mother.
Counsel for the respondent made various objections to this affidavit at the hearing. As a result of these objections, I noted at the hearing that the phrases “blatantly ignoring all orders” in paragraph 3 and “but the mother has ignored these orders” in paragraph 4 would be treated as opinions of the father that accordingly carry very little weight.
The reference to the police report in paragraph 4 was struck out as the report itself was not attached to the affidavit.
I went on to note that paragraphs 7 to 9 and 11 to 21 would be accorded little weight due to their content being nothing more than the opinion of the applicant.
Finally, I noted that paragraph 22 would be accorded no weight at all. The paragraph speaks of “security video evidence” that the applicant has of the mother allegedly abusing him and admitting various things. The security video evidence itself is not provided, so the statement of its alleged existence does not assist me.
The above forms the totality of the applicant’s written submissions on the second application for contravention orders.
The respondent filed an affidavit in response to the affidavit of the applicant of 6 November 2012 on 8 November 2012. The affidavit explains that the respondent telephoned the Suburb C Police Station on 2 November 2012, four days prior to the alleged contravention, to inform them that she would not be proceeding with the scheduled handover. The mother made this decision upon the child allegedly saying (in response to being told by the respondent that he would be spending time with his father): “No daddy’s house. [B] stay here. Daddy smack. Daddy said no. No happy. Please mummy, [B] home” or words to similar effect. This comment of the child rendered the respondent, in her words, “overwhelmed and concerned for [the child’s] safety.”
Paragraph 7 of the respondent’s affidavit was amended by consent of the parties at the hearing. The amendment removed a reference to an earlier affidavit of the respondent.
Oral Submissions of the Parties at the Hearing
Counsel for the respondent sought to have the second count of the applicant’s first application for contravention orders dismissed at the hearing date on the basis that the affidavit material filed in support of the application is not sufficient to establish a contravention occurring on 29 June 2012 (the date of the alleged contravention).
I dismissed the second count of the applicant’s first application for contravention orders after hearing submissions from both parties on this point. I made this order on the basis that the affidavit evidence of the father submitted to the Court as establishing the contravention fails to establish the facts which would set out a basis upon which the Court could find on the balance of probabilities that the mother contravened the Court orders on 29 June 2012.
The evidence and submissions at the hearing only concerned the first count of the first application for contravention orders and the sole count contained in the second application for contravention orders.
The oral submissions on the separate applications for contravention orders were not bifurcated at the hearing.
Given that the respondent had admitted both contraventions but had claimed to have a reasonable excuse, much of the oral submissions turned on the presence or lack of a reasonable excuse without specific reference to either count. This may have been because the reasonable excuse that the respondent claims to have for contravening the orders, being a fear that the father would physically abuse the child if they were to spend time together, applied to both counts.
The respondent advanced some evidence in chief at the hearing. Her evidence reiterated much of the affidavit material filed by the respondent in reply to the applications for contravention orders of the husband concerning comments made to her by the child about the father.
The respondent also noted that she was taking steps to improve the post-separation parenting of the child, including enrolling in a “Kids Are First Program” which was to commence in March 2013.
The applicant then cross-examined the respondent. The applicant referred to various documents that had been subpoenaed from the South Australian Police by the respondent.
One such document was a summary of a video taken by the respondent on 21 June 2012. The summary of the video states that the child said, inter alia, “smack daddy.” The video itself was not produced. This is in conflict with the affidavit material of the respondent, which suggests that the child said “daddy smack.” I informed the parties that, regardless of which transcription is correct, very little weight could be placed on the content of the child’s statement given the history of the matter and the age of the child at the time of the statement.
Elsewhere in his cross-examination of the respondent, the applicant suggested that the respondent had coached the child into making the statements she suggested he made in her affidavit. The respondent denied this allegation.
The applicant also suggested that the child had been exposed to violent television programs and movies by the mother, and that this may have prompted him to make the comments about his father. The respondent denied this allegation.
The applicant also suggested that the respondent’s boyfriend’s history of martial arts may have prompted him to make the comments about his father. The respondent denied this allegation.
A statement from an officer of the Suburb D Police Station dated 24 August 2012 was tendered as an exhibit during the applicant’s cross-examination of the respondent. The statements provides that the respondent attended the police station as the child was to have access with the applicant on the following day and she did not want to hand the child over as she fears the child will be physically abused. The statement notes, inter alia, that the child was asked if he enjoyed going to his father’s house, to which he replied “yes”. The child also responded “yes” when asked whether “his dad was a good dad.” The respondent is described as “dissolv[ing] into tears and becom[ing] overcome with emotion” upon being informed that Child Protection Services had declined to interview the child.
The applicant then delivered some evidence in chief. The applicant made various allegations against the respondent. He suggested that the mother had coached the child to make the statements that he made to her concerning the violence of the father. He also suggested that the respondent “seems hell-bent on getting the child interviewed.”
The applicant further suggested that little weight could be attributed to the comments of the child anyway given his young age and subsequent vulnerability. In conclusion, the applicant denied physically abusing or physically disciplining the child.
Counsel for the respondent then cross-examined the applicant. The cross-examination sought to establish that the relationship between the parties had improved since the applications for contravention orders were filed and that the applicant was now regularly spending time with the child.
The applicant revealed that he had also enrolled in the “Kids Are First” parenting program that the respondent had enrolled in, and that he hoped the communication between the parties would subsequently improve.
The applicant also asserted that the respondent had physically abused him three times throughout their relationship. The applicant asserted that he had not been responsible for any family violence during the relationship.
Final Submissions of the Parties
I heard submissions from the parties in relation to the findings I should make at the conclusion of the hearing and what orders I should make consequent upon those findings.
Counsel for the respondent asserted that the respondent has a reasonable excuse for her admitted contraventions given the history of family violence throughout the relationship.
I noted that whilst the respondent had given evidence concerning family violence, the evidence did not establish that the applicant inflicted the violence. Furthermore, the applicant had denied that he was responsible for any violence against the respondent, but did claim to have been the recipient of violence from the applicant on multiple occasions.
Counsel for the respondent went on to submit that it did not matter whether the father actually committed any physical violence against the child. Rather, the relevant consideration was whether the respondent genuinely believed that he did and whether that belief was reasonable. This was said to entail both objective and subjective considerations.
Counsel for the respondent then submitted that the respondent actively sought the assistance of the appropriate authorities upon her decision to contravene the orders which counsel submitted suggests that she genuinely did believe that the violence against the child had occurred and would occur again.
If the respondent is found to have established a reasonable excuse for her contraventions, her counsel submitted that the proceedings should be dismissed. If the respondent fails to establish a reasonable excuse, her counsel suggested that an order directing her to attend a post-separation parenting program would be appropriate. Counsel for the respondent felt a bond was not necessary, and that any makeup time ordered would be difficult to organise and may not be in the best interests of the child.
Regardless of whether I find that the respondent had a reasonable excuse, the applicant suggested that there be makeup time ordered to compensate for the time he and his son have not spent together as a result of the contraventions pursuant to section 70NDB of the Act.
Consideration
The respondent has admitted both contraventions. She claims she has a reasonable excuse for those contraventions. She must prove on the balance of probabilities that she had a reasonable excuse for the contraventions. (Section 70NAF(1) and (2), and 70NDA(c)). That reasonable excuse is said to be that the respondent was concerned that the child would be subject to physical violence from the father.
Section 70NAE of the Act provides a list of circumstances in which a person may be taken to have had a reasonable excuse for contravening an order. This is not an exhaustive list.
Subsection 70NAE(5) provides that that a person is taken to have had a reasonable excuse for contravening an order which concerns the time a child is to spend with a person if the “respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child.)” In addition, the period during which the child and the person did not spend time together must not be “longer than was necessary to protect the health or safety” of the child.
There are multiple considerations, both subjective and objective, involved in applying subsection 70NAE(5) to the facts of these applications for contravention orders.
Firstly, there is the issue of whether the respondent believed on reasonable grounds that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child. This issue has a subjective element (consideration of whether the respondent actually believed that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child) and an objective element (consideration of whether this belief of the respondent was reasonable).
Secondly, there is the consideration of whether the period during which the child and the person did not spend time together was “longer than was necessary to protect the health or safety” of the child pursuant to s 70NAE(5)(b).
I will consider first the sole remaining count of the father’s first application for contravention orders. The mother’s belief that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child was said by her counsel to be grounded in various alleged disclosures of the child concerning violence inflicted upon him by the father.
The mother’s affidavit filed 18 October 2012 comments on the first alleged disclosure. The affidavit annexes a report that was provided by the respondent to the police following a disclosure of the child on 21 June 2012 that “daddy smack, [B] cry.” The mother videotaped this disclosure by the child as noted in an earlier affidavit of the mother filed 30 July 2012. This earlier affidavit notes that the police requested (and received) a copy of the video footage taken by the mother of the child’s disclosure. After viewing the footage, Child Protection Services declined to interview the child. The police also declined to charge the father.
Counsel for the respondent argued that the fact that the respondent had sought the assistance of the police hours prior to the first alleged contravention on 24 August 2012 was proof of the genuineness of the respondent’s belief that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child. The Police Report arising out of the mother’s attendance on the police at this date was tendered as an exhibit at the hearing. The following are extracts from this report:
This child has limited language skills, often repeating words spoken to him and looking towards his mother for prompts. However I asked him if he liked going to his Dad’s and he said “yes”, and I asked him if his Dad was a good Dad, and he again said “yes”.
When I found that child had not made any new disclosures, and that Mum was referring to this matter and PIR when she stated the child’s Father had abused him, I told her another PIR could not be raised as the matter had already been investigated, and in addition on considering the matter, CPS had declined to interview the child.
This caused Mum to dissolve into tears and become overcome with emotion. She then commenced to try to question the child in this state, seeking to get a disclosure, and I had to stop her twice as the child was visibly distressed.
These events suggest that the mother wanted to believe that not allowing the child and the father to spend time together was necessary to protect the health and safety of the child at the time of the contravention. However, they do not go so far as to establish that she genuinely believed as much. Rather, I agree with the father that the mother was “hell-bent on getting the child interviewed” for reasons unconnected with any actual belief that she held concerning the child’s safety in the care of the father.
These events also confirm that even if the mother did genuinely believe that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child, the grounds for this belief were in no way reasonable.
Furthermore, as previously noted, very little weight can, or should have been, placed on the content of the child’s statement given the history of the matter and the age of the child at the time of the statement. The child is only four months older than the proceedings themselves. Without more, the comments of a four year old child in these circumstances do not in themselves substantiate a reasonable excuse for contravening an order of this Court.
Accordingly, I find that the mother did not have a reasonable excuse for the admitted contravention that forms the sole remaining count of the father’s first application for contravention orders
I will now consider the sole count of the father’s second application for contravention orders. The reasonable excuse for this count was grounded in an alleged disclosure by the child on 29 October 2012 (four days prior to the date of the alleged contravention). It is similarly worded to the earlier mentioned disclosures and alleges generally that the father smacks the child.
I note that this was a statement by a four year old child who had not seen his father in approximately five months. Furthermore, the mother alleges in her affidavit filed 7 November 2012 that the mother and child had not even discussed the father’s existence since August 2012.
On 31 October 2012, I ordered that the child’s time with the father was to recommence on 2 November 2012. The mother states in her affidavit filed 8 November 2012 that “at the time of this Order was made, I was in a state of heightened concern for [the child].” I note that there was no objection raised by the mother through her counsel to my reinstating of the orders.
On 1 November 2012, the mother called the Child Abuse Report Line in response to the child’s statement on 29 October 2012. It is unclear what the response to this call was but it appears that no further action was taken by the Child Abuse Report Line.
The child allegedly made a similar disclosure on 2 November 2012 (hours before the child was to spend time with the father). This caused the mother to become “overwhelmed and concerned for [the child’s] safety.” The mother called the Suburb C Police Station and informed them that she would not be facilitating the upcoming handover of the child to the father.
On 6 November 2012 (four days after the alleged contravention) the mother took the child to Child Protection Services (the “CPS”) as she “had hoped that staff there would be amenable to interviewing [the child]” or “at least” refer her to “an appropriate independent children’s counsellor to interview [the child] in respect of the voluntary eruptions” that had allegedly occurred on 29 October 2012 and 2 November 2012. It would appear that neither of these outcomes occurred and that no further action was taken by the CPS.
On 8 November 2012, the mother filed her affidavit in which she raises these alleged disclosures by the child from 29 November 2012 and 2 November 2012.
A week later on 13 November 2012, the mother, through her counsel, agreed to reinstate the child’s contact with the father if a variation to the orders were made that would allow her to tell the child that neither she nor the father were allowed to smack him. This amended variation was ultimately rejected by me upon submissions from the father and the Independent Children’s Lawyer.
This chain of events does not convince me that the mother genuinely believed that her actions in contravening the existing orders on 2 November 2012 were necessary to protect the child. When seen in light of her implicit assent to the reinstatement of the existing orders, the mother’s attendance upon the CPS and her call to the Child Abuse Report Line can be seen as vain attempts to bolster her decision not to deliver the child to the father in accordance with the recent Court orders. They do not prove the genuineness of her concern for the child’s welfare and safety in the arms of the father.
For this reason, I am not satisfied that the mother genuinely believed that not allowing the child and the applicant to spend time together was necessary to protect the health and safety of the child. I find that the mother has failed to establish a reasonable excuse for her admitted contravention as outlined in the father’s second application for contravention orders.
In conclusion, I am not satisfied that the mother has established a reasonable excuse for the admitted contraventions on the balance of probabilities.
Conclusion
In summary, I note that I have found the following:
(a)With regards to the first count in the father’s first application for contravention orders concerning the alleged contravention on 24 August 2012, I found that the mother failed to establish a reasonable excuse for the admitted contravention on the balance of probabilities.
(b)With regards to the second count in the father’s first application for contravention orders concerning the alleged contravention on 29 July 2012, I dismissed this count on the basis that the affidavit evidence of the father submitted to the Court as establishing the contravention fails to establish the facts which would set out a basis upon which the Court could find on the balance of probabilities that the mother contravened the Court orders on 29 June 2012
(c)With regards to sole count in the father’s second application for contravention orders concerning the alleged contravention on 2 November 2012, I found that the mother had failed to establish a reasonable excuse for her contravention on the balance of probabilities.
I will hear further submissions from the parties and the Independent Children’s Lawyer on Wednesday 22 May 2013 at 3.30 pm as to the orders I should make consequent upon these findings.
The question of the costs of these applications for contravention orders will, if necessary, also be heard at this time.
I certify that the preceding eighty-one (81) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 3 May 2013.
Associate:
Date: 3 May 2013
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