Carter and Olson

[2013] FamCA 681

FAMILY COURT OF AUSTRALIA

CARTER & OLSON [2013] FamCA 681

FAMILY LAW – ORDERS – CONTRAVENTION – reasonable excuse where investigation by police and welfare authorities taking place.

Family Law Act 1975 (Cth)

APPLICANT: Mr Carter

RESPONDENT: Ms Olson

FILE NUMBER: MLC 10939 of 2010

DATE DELIVERED: 19 July 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 July 2013

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

Orders

1. That the application for contravention by the father is dismissed but otherwise adjourned for parenting orders to be considered at 2.15pm on 7 August 2013.

2. That the mother file and serve an application initiating proceedings to be listed on 7 August 2013, such application be filed by 4.00pm on 30 July 2013.

3. That the father file and serve a response to the mother’s initiating application by no later than 4.00pm on 5 August 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Carter & Olson 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 MELBOURNE

FILE NUMBER: MLC 10939 of 2010     

Mr Carter

Applicant

And

Ms Olson

Respondent

REASONS FOR JUDGMENT

1. This is a contravention application in the judicial duty list.  These parties have two children, J and M, who will turn nine years of age shortly.  Rather succinctly put, these parties have been at loggerheads for years and with another nine years to go before adulthood, these children who both have significant disabilities do not really need parents who are focused on each other rather than on the welfare of their children. 

2. I appreciate very much that this application today involves two people who are not legally trained and do not have the necessary experience to deal with the complexities of Division 13A and Part VII of the Family Law Act but this is a court of law and I have to deal with what I am presented.

3. On 1 May 2013, Mr Carter, who is the father of the children, filed a contravention application.  It contained two allegations, the second of which I have struck out on the basis that it does not disclose a contravention.  That left one issue alone to be determined. 

4. The allegation says that the mother, Ms Olson, has breached paragraph 4 of consent orders made on 15 January 2013 because, at 10 o’clock on 24 March 2013 at B Contact Centre, she failed to bring J to the changeover without reasonable excuse.  The first problem was that there was nothing in the orders about 24 March 2013. 

5. Paragraph 4 of those orders relates to a structure that the parties worked out amongst themselves and agreed that the Court should make.  Subsequent to that time, the parties reached a further agreement but did not vary the order.  There does not seem to be any dispute that I am really dealing with a breach of an agreement between the parties and although it is unclear as to exactly what the power is for the Court to deal with those sorts of circumstances, I think it is sensible for me to conclude that on any view, contact would have taken place between the father and J on that weekend but not in the way that the order requires. 

6. The mother concedes that J was not produced on that day but she raises the question of a reasonable excuse. 

7. The facts in this case are relatively simple.  On the weekend prior to 24 March, J spent time with his father.  On that afternoon at 4.30, the mother collected J and drove home.  J is described as severely autistic and that issue was not challenged.  He appears to have very simple communication skills.  Just after 5 o’clock on a hot day, with J having removed his clothes, the mother saw a smiley face had been drawn on his penis. 

8. A photograph was then taken and it was noticed that there was orange texta on the tip of his penis and, indeed, his whole penis had been coloured.  She said that had never been noticed before and certainly J had never done it before.  She concluded that someone other than J had done it.  She then called the police, who referred her to the sex offenders investigation unit and the woman to whom she spoke said that she should contact the Department of Human Services and that the police would contact the father.  She then contacted the Department, who took a report over the telephone, and later in that week, she went to both the police department and the Department of Human Services to make statements. 

9. The police indicated that the father had expressed the view that he had no knowledge of the incident at all.  The mother said that in respect of the next visit, which would have taken place on 24 March, she was advised by both of the Department and the police that they were investigating the matter and that, therefore, they would be very concerned if she handed J over to his father until that investigation was undertaken.  She said that on 23 March, which was the day prior to the visit supposedly taking place, she emailed the father but she acknowledged that his email address was at work and this was a Saturday.  She concedes that he probably did not get the email until the Monday, when he responded and demanded to know why J had not arrived. 

10. Since then, the mother has been to the paediatrician who is referred to in the orders of 15 January.  The order provides that the father has a right to consult with a paediatrician.  His evidence was that he had not done that since the incident has taken place, and in any event, he thinks that the paediatrician Dr C is biased against him. 

11. According to the mother, Dr C said she was concerned and wanted another appointment made which took place on 3 May.  A full physical examination and blood tests were undertaken. 

12. The upshot of all of this was that the Department and the police have closed their files on the basis that there is nothing further to investigate.  The mother’s explanation from the police was that no one was able to explain how the colouring happened, predominantly because of J’s inability to communicate exactly what occurred. 

13. Dr C, unsurprisingly, has indicated much the same.  She was unable to ascertain who had done the drawing. 

14. I have heard evidence from both the father and the mother.  It is quite clear that there is absolutely no trust and that does not augur well, particularly in circumstances where paragraph 2 of the orders made with their consent and request on 15 January, said that they are to have equal shared parental responsibility. 

15. Equal shared parental responsibility requires parents to be able to consult with one another.  These parents have anything but a relationship where they can and, as I said, there is another nine years to go before these children reach their adulthood and the court loses its jurisdiction. 

16. The father’s view is that the mother or someone in her family, coloured J’s penis and it was done for the purposes of cutting his time out.  The problem with that argument, of course, is that the father conceded in cross-examination that at no stage has the mother ever made an allegation against him of any impropriety and it seems implausible that having regard to what the mother said, and what was occurring at B Contact Centre that that is likely to have occurred.  The father asked the mother whether or not she had done it.  She described in very blunt terms that she had not done it or would ever do it.  Those are the facts of this case upon which I have to make a determination. 

17. Section 70NAC of the Act requires that I consider the law.  It provides that a person is taken to have contravened an order where they have intentionally failed to comply with it or made no reasonable attempt to comply with it.  For the purposes of the Act, however, a person may be taken to have had a reasonable excuse for contravening an order in a number of circumstances, one of which is that handing over a child is unwise if it would prejudice the health and safety of either the parent or, indeed, the child. 

18. The mother’s excuse here is simple.  She said there was an investigation ongoing at that stage and she was told by the Department that they would not be comfortable about her handing the child over.

19. The question for the Court is whether or not that belief was an honest one and whether it was reasonable in the circumstances. 

20. The father has had an opportunity to cross-examine the mother about all of that and, in my view, he has made little inroads.  He says that her excuse is not reasonable because of what happened in a previous event relating to some bruising.  It seems to me that on the balance of probabilities, which is the test, it is probable that the mother’s excuse was one that she believed she should follow.  It was reasonable in the circumstances and, on that basis, the application must be dismissed.

21. That then leaves the question of what should happen in the future.  It is obvious that these parties are never going to reach agreement about what should happen.  I am not in a position today because of the paucity of the evidence to make a determination about that, but it is clear from the evidence that the mother is offering some form of contact, and she says that the father is not taking up the opportunity.  He seems to have a dispute about that and I am not in a position to determine it today.  What I, therefore, propose to do is to adjourn the matter to a date when the parties can file proper material and if the mother has a serious concern about the ongoing relationship between, at least, J and the father, she can put that in a proper application with proper evidence.  At this stage, I am only dealing with the events of 24 March.

22. I, therefore, propose to adjourn the matter back before me in August and the parties can file appropriate material by that stage.  What I propose to do is to dismiss the contravention, but adjourn the proceedings relating to the parenting issues to 2.15 pm on 7 August 2013 before me.  The mother is to file and serve an application seeking final orders.  That is to be filed no later than 4 pm on 30 July and that is to be listed on 7 August.  The father is to file and serve a response by 4 pm on 5 August.  For the purposes of the parties, on 7 August, if I have got sufficient time in the afternoon, I will consider the interim arrangements if they have not worked them out in the meantime, and otherwise I will fix a trial date on that date.

I certify that the preceding twenty two 22 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 19 July 2013.

Associate: 

Date:  3 September 2013